COONEY v. ALBERTO et al

Filing 17

OPINION. Signed by Judge Dennis M. Cavanaugh on 11/12/2013. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PATRICK F, COONEY, III,
Plaintiff,

:

Hon. Dennis M. Cavanaugh

:

OPINION
Civil Action No. 2:13-cv-01849 (DMC)(JBC)

VINCENT ALBERTO and VICTORIA
ALBERTO
Defendants.

DENNIS M. CAVANAUGFI, U.S.D.J,:
This matter comes before the Court

upon

the Motion of Victoria Alberto (“Defendant”)

to I)ismiss the Complaint of Plaintiff Patrick F. Coonev, III (“Plaintiff”) pursuant to

FED.

R. Civ.

P. 1 2(b)(6). Pursuant to FED. R. Civ. p 78, no oral argument was heard. Based on the following
and for the reasons expressed herein, Defendant’s Motion to Dismiss is granted.
L

BACKGROUN1)
Plaintiff alleges that on June 1, 2012, he was driving his vehicle on Forest Avenue in

Paramus. New Jersey, when he passed by Vincent Alberto (“Mr. Alberto”), who was jogging at
the time. Plaintiff claims that Mr. Alberto began to shout obscenities at him and that Plaintiff
then turned left onto Ross Road and parked his vehicle. Plaintiff states that when he exited his
vehicle. Mr. Alberto approached him, continued to shout obscenities. and began to strike him.

The

ftcts from this section are taken from the parties’ pleadings.
1

Plaintiff claims that Mr. Alberto then pinned him to the ground. repeated to strike him. and
twisted his arm behind his back in a violent manner. Plaintiff states that Mr. Alberto took these
actions despite the fact that Plaintiff told Mr. Alberto that he would not harm him and the fact
that Defendant, Mr. Alberto’s wife, repeatedly told him to stop.
Plaintiff claims that upon observing the attack, Defendant, who is a police officer hut was
o[t-dutv at the time, dialed 9-1 -1. Plaintiff states that Defendant advised the operator that the
altercation was only a dispute” and failed to advise the operator that her husband was striking
Plaintiff. Plaintili alleges that Defendant intentionally minimalized the attack h\ her husband”
because she knew that the call was being recorded. Plaintiff has attached a transcript of the 9- 1

-

call to his Opposition to Defendant’s Motion to Dismiss as evidence that Defendant identified
herself as a police officer and failed to respond to the operator’s question of whether the dispute
was violent, Plaintiff has also attached a transcript of a call made to the police by a neighbor who
viewed the altercation.
Plaintiff filed a Complaint against Defendant and Mr. Alberto on March 25. 2013 (LCF
No. I). The only claim against Defendant is contained within count four. where Plainti IT alleges
that Defendant violated his rights under 42 U.S.C.

§

1983. Defendant filed the instant Motion to

Dismiss on May 6,2013 (ECF No. 5). Plaintiff filed an Opposition on June 3,2013 (ECF No. 9).
Defendant filed a Reply on .Junc 10, 2013 (ECF No. 10).
H.

STANDARD OF’ REVIEW
In deciding a motion under FED. R. Civ. P. 1 2(b)(6), the District Court is “required to accept

as true all factual allegations in the complaint and draw all inferences in the Ihcts alleged in the
light most favorable to the [plaintiff].” Phillips v. Cnty.

of

Allegheny. 515 F.3d 224, 228 (3d Cii’.

2008). “[Al complaint attacked by a Rule 1 2(b)(6) motion to dismiss does not need detailed factual

allegations” Bell Ati. Carp. v. Twombly, 550 US. 544. 555 (2007). However. he p1aintiffs
“obligation to provide the grouncls’ of his entitle[ment] to relief requires more than labels and
conclusions and a formulaic recitation of the elements of a cause ot action will not do” Id. On a
motion to dismiss, courts

are

“not bound to accept as true a legal conclusion couched as a factual

allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Plaintiffs complaint is subject to the
heightened pleading standard set forth in Ashcroft v. Igbal:
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true. to “state a claim to relief that is plausible on its face.” A claim has facial plausibility
when the plamtill pleads factual content that allows the court to draw the reasonable
Determining whether
inference that the defendant is liable for the misconduct alleged
will
be a context-specific task that requires
a complaint states a plausible claim for relief
the reviewing court to draw on its judicial experience and common sense. But where the
vell pleaded facts do not permit the court to infer more than the mere possibility of
“that the pleader is
misconduct, the complaint has alleged but it has not “show[ni
entitled to relief”
.

.

.

.

.

.

-

—

556 U.S. 662. 678-679 (2009) (quoting Twombly, 550 U.S. at 557. 750.
Ill.

I)ISCUSSION
PlaintiiY alleges that Defendant violated his rights under 42 U.S.C.

§

1983 based on the

state-created danter theory. Section 1 983 “does not create substantive rights. but piovides a
temedy foi thc violation ol iights ereatcd by fedeial law

Gioman v I wp of Manalapan 47

F.3d 628. 633 (3d Cir. 1995). In order to establish a claim under

§

1983. a plaintiff must

show

that “(1) a person deprived him of a federal right; and (2) the person who deprived him of that
right acted under color of state or territorial law.” Id. (citing Gomez v. Toledo. 466 U.S. 635. 640
(1980)). The Third Circuit has stated that “if a persons actions were not committed in the
perfirma.nce of any actual or pretended duty.’ the actions were not committed under color of
1w

511 3d 1137 1151 (3d Cii 1995) (quoting ijoi

C it of New York 683 F 2d 635 639 (2d Cii 1982))

The state-created danger theory was adopted by the Third Circuit in 1 996 to allow liability
to attach where the state acts to create or enhance a danger that deprives a person of his or her
Fourteenth Amendment right to substantive due process. Sanford v. Stiles, 456 F.3d 298. 304 (3d
Cir. 2006). In a state-created danger case, a plaintiff must prove the following four elements: (I
the harm caused was foreseeable and fairly direct; (2) the state actor’s degree of culpability
“shocks the conscience;” (3) a relationship between the state and the plaintil’f existed such that
the plaintiff was a foreseeable victim of the defendant’s acts; and (4) a state actor affirmatively
used his or her

authority

in a way that created a danger to the plaintiff or that rendered the

plaintiff more vulnerable to danger than had the state actor not acted at all.

ih at 304-305.

This Court finds that Plaintiffs Complaint fails to demonstrate that Defendant acted under
color of state law and fails to adequately allege the existence of element four of the state-created
danger test.
A. Under Color of State Law Requirement
Plaintiff argues in his Opposition that Defendant acted under color of state law by
identifying herself as a police officer when she dialed 9-1 -1. Plaintiff attached a transcript ol this
conversation to the Opposition. 1-lowever. Plaintilis Complaint makes no mention of Defendant
identifring herself as a police officer, nor did Plaintiff attach the transcript of the conversation to
the Complaint. Therefore, this Court cannot take the transcript into consideration in analyzing
Defendant’s Motion to Dismiss. See Vellazquez v. Am. Airlines, No. 2010/90, 2011 WL
3652334, at *2 (DV 1 Aug 18, 2011)

(quoting

In rc But lmgton Coat FaLtoly Sec Litig, 114

F.3d 1410, 1426 (3d Cir.1997)) (‘On a motion to dismiss

.

.

the Court may not consider

documents attached to Plaintiffs opposition, unless they are integral or explicitly relied upon in
the complaint.”); Daniels v. Morris Cnty. Corr. Facility. No. 06-2460. 2007 WL 174176, at

4

*

1

(D.N.J. .Jan. 22. 2007) (In evaluating a Rule 12(b)(6) motion to dismiss, a court ma consider
only the Complaint, exhibits attached to the Complaint, matters of public record. and
undisputedly authentic documents if the plaintiffs claims are based upon those documents,”)
Stappcitenne v Noa Healthcaie Admmistiatois Inc No 05-4883 2006 WL 1044456 at 3
(D.N.J. Apr. 1 7, 2006) (refusing to consider exhibits attached to the plaintiff’s opposition when
they were not directly incorporated in or attached to the complaint).
However, even if the transcript had been attached to the Complaint, the conversation does
not show that Defendant acted under color of state law. The Third Circuit has stated that “off—
duty police officers who purport to exercise official authority will generally be found to have
acted under color of state law.” Barna v. City of Perth Amhov. 42 F.3d 809. 816 (3d Cir. 1994).
In Barna. the Court stated that “[m]anifestations of such pretended authority may include
flashing a badge, identifying oneself as a police officer, placing an individual under arrest, or
intervening in a dispute involving others pursuant to a duty imposed by police department
iegulations

‘

Id 1

01

example in Panas v Cit’ ot Philadelphia $71 I Supp 2d 370 377 (1 D

Pa. 201 2), the court found that an off—duty police officer acted under color of state law when it

[wasi undisputed that prior to shooting [the plaintiffj. [the officer] flashed his badge and
announced that he was a police officer while attempting to clear the crowd in front of [the
plaintiffs] house.” Similarly, the Second Circuit found that an off-duty corrections officer acted
under color of law when he identified himself as a police officer when making an arrest, used
handcuffs issued by the New York Department of Corrections. and placed the plaintiff in a police
car. Rivera v, La Porte, 896 F.2d 691, 696 (2d Cir. 1990).
The instant case is distinguishable from Panas and Rivera, as there is nothing to suggest
that I)cfcndant callcd 9-1-I intcnding to act

a police of ficei pertoiming an offici l duty as

PPSCCt to a private citizen

reporting

an altercation. I)efendants only action that could urguahlv

be construed as acting under color of state law was her statement in the phone conversation that
she is a police offIcer. However, Defendant did not make this statement until halfway through
the conversation and she immediately clarified that she was an “off—duit’

police ofticer.”

Defendant did nothing else to purport that she was exercising her official authorit. Accordingly.
Plaintiff has not shown that Defendant was acting under color of state law.
B, Element Four of the State-Created Danger Test
The fourth element of the state—created danger test requires this Court to determine
whether Defendant used her authority as a police officer “to create a dangerous situation or to
make Plaintiff “more vulnerable to danger” than he would have been had i)efendant not
intervened, Kneipp v. Tedder, 95 F.3d 1199, 1209 (3d Cir. 1996). See
Westmoieland

Bright v.

443 F 3d 276, 283 (3d Cu 2006) (“[Ulndei the fouith element of a state-

created danger claim, [l]iahilitv

.

.

.

is predicated upon the states’ affirmative acts which work to

the plaintiffs’ detriments in terms of exposure to danger.” (citation and quotations omitted)). in
eipj, a heavily intoxicated woman and her husband were walking home from a bar late at
night when they were stopped by a police officer. 95 F.3d at 1201. The husband lell the scene
after the officer told him that he could go home, assuming that his wife would be taken to the
police station or to the hospital. Id. at 1202. However, after the husband left, the officer decided
to send the woman home by herself, and she ultimately passed out outside and suffered from
hypothermia, which led to the

impairment

of many

of

her basic body functions. Id. at 1202—03.

In analyzing element four of the state-created danger test, the Third Circuit found that there was
evidence that the officer made the woman more vulnerable to danger than she would have been
had he not intervened because “[i]t [was] conceivable that. but for the intervention of the police.

6

[her husband] would have continued to escort [her] back to their apartment where she would
have been safe,” Id. at 1209. Similarly, in Reed v. Garner, 986 F.2d 1122, 1124 (7th Cir, I 99$),

police officers arrested the sober driver of a car, leaving the keys behind with the passenger, who
the offices knew or should have known was intoxicated. After the officers left, the inebriated
passenger drove the car and ultimately crashed into another vehicle on the road, killing a
pregnant woman and injuring several others. Id. at 1123-24. The Seventh Circuit found that the
officers were subject to

§ 1983 liability because “[b]y removing a safe driver from the road and

not taking steps to prevent a dangerous driver from taking the wheel, [they] arguably changed a
safe situation into a dangerous one.” Id. at 1127. In contrast, in Brown v. Grabowski, 922 F.2d
1097, 1102 (3rd Cir. 1990), a woman had reported to the police that her former boyfriend
abducted her, sexually harassed her, threatened her with a knife, and held her hostage for three
days. The police did not make an arrest and did not inform the woman other right to obtain a
restraining order. Id. at 1102-03. Subsequently, the woman’s former boyfriend beat her until she
was unconscious and locked her in the trunk of her car, where she froze to death. Id. at 1103. The
Third Circuit found that the deceased woman’s representative could not bring a

§ 1983 claim

against the officers who did not take action because there was no evidence that the officers
‘Iimited [the woman’s] freedom to act on her own behalf, or.
danger that [her former boyfriend] posed to her.”

.

*

created or exacerbated the

Jci at 1116.

In the present case, Plaintiff asserts that element four of the state-created danger test is
present because Defendant took the affirmative step of dialing 9-1-1 and intentionally misleading
the operator about the nature of the altercation, thus delaying police and medical assistance to the
scene. However, even if Defendant acted inappropriately during the call, Plaintiff has not shown

that Defendant made him more vulnerable to danger than he would have been had Defendant not

7

acted at all. Defendant did not delay police or medical assistance that was already on is vav.
Even if it is true that assistance would have arrived at the scene sooner had Defendant been more
forthcoming during the call, this did not make Plaintiff worse off than he would have been had
the call not been made. Accordingly. Plaintiff has not adequately alleged element four of the
state-created danger test.
IV.

CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss is granted. An appropriate

order follows this Opinion.

Date:
Original:
cc:

November
2013
Clerks Office
Hon. James B. Clark U.S.M.J.
All Counsel of Record
File
,

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