HARVEY v. COUNTY OF HUDSON et al

Filing 36

AMENDED OPINION. Signed by Judge Kevin McNulty on 11/24/15. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JOSEPH HARVEY, SR., as Administrator
ad Prosequendum and Administrator of
the ESTATE OF JOSEPH HARVEY, JR.,
Deceased; and Individually,

Civ. No. 14-3670 (KM)

AMENDED OPINION

Plaintiff,
V.

COUNTY OF HUDSON, HUDSON COUNTY
PROSECUTOR’S OFFICE, STATE OF NEW
JERSEY, JOSEPH LAMONT WALKER, and
JOHN DOES 1-25,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
Joseph Harvey, Sr., as administrator ad prosequendum and
administrator of the estate of Joseph Harvey, Jr., brings this civil rights action
against three government entities: the County of Hudson (the “County”), the
Hudson County Prosecutor’s Office (the “HCPO”), and the State of New Jersey
(the “State”) (together, the “government defendants”). He also sues one
individual, defendant Joseph LaMont Walker. Now before the Court is the
motion of the government defendants to dismiss the Complaint pursuant to
FED.

R. Civ. P. 12(b)(1) and 12(b)(6). (Dkt. Nos. 8, 14) The government

defendants argue that Eleventh Amendment principles of sovereign immunity
bar these claims, which should therefore be dismissed under Rule 12(b)(1) for
lack of subject matter jurisdiction. In addition, and in the alternative, they
argue that the Complaint fails to state a claim, and should therefore be
dismissed under Rule 12(b)(6).
The counts of the Complaint overlap to some degree, and are not clearly
segregated so that each states one and only one cause of action. Consequently,
1

it is not always possible to state neatly that one count
is dismissed, and
another sustained; to some degree this Opinion necessari
ly speaks in terms of
legal theories as to particular defendants. To be clear,
the claims that remain
after the Court’s disposition of the motions are:
JOSEPH LAMONT WALKER: All claims (Walker has not
filed a motion to
dismiss).
HUDSON COUNTY PROSECUTOR’S OFFICE: Section 1983
, NJCRA,
Wrongful Death Act, and Survivor’s Act claims for negl
igent hiring and
failure to discipline.
All other claims against all other named defendants are
dismissed on
jurisdictional or substantive grounds, with or without preju
dice as described
herein.

I.

FACTUAL BACKGROUND

The Complaint, as yet untested by any fact finder, desc
ribes a senseless
road rage incident on June 8, 2013, that resulted in the
death of Joseph
Harvey, Jr.’ Defendant Joseph LaMont Walker, an off-d
uty HCPO Detective,
and Harvey, the decedent, were driving in separate cars in
Maryland.
(Complaint, Dkt. No. 1 (“Cplt.”)
¶J 15-18) There was an altercation between
Walker and Harvey, in which Walker shot Harvey seve
ral times with his service
revolver, killing him. (Cplt. ¶ 20)
Harvey’s father, Joseph Harvey, Sr., filed this action on
June 6, 2014, as
administrator ad prosequendum and administrator of
the estate of his son.
Named as defendants are Walker, the HCPO, the County,
the State, and
numerous “John Does.” The Complaint asserts vario
2
us constitutional claims
against all defendants pursuant to 42 U.S.C. 1983 (“Secti
on 1983”), including
§
violations of the 1st, 4th, 8th, and 1 amendments. Esse
th
4
ntially, the Complaint
alleges that Walker violated Harvey’s constitutional right
s when he shot and

“Harvey” herein refers to Mr. Harvey, Jr., the decedent, unle
ss otherwise
specified.
I

2

killed Harvey. It further alleges that the State, HCPO, and the County
are
responsible for Walker’s actions.
As to the government defendants, the Section 1983 claims boil down
to
the contention that the government defendants negligently hired Walke
r, failed
to discipline him as appropriate, and failed to supervise and train
him,
particularly in relation to the use of his service weapon (both on
and off-duty)
and the use of deadly force. (See, e.g., Cplt.
¶ 9.b, 61.) The Complaint alleges
that these failures affected not only Walker, but the government
defendants’
employees generally. (See, e.g., Cplt. ¶j 27-28.) The Complaint asser
ts similar
claims pursuant to New Jersey’s state-law analogue to Section 1983,
the New
Jersey Civil Rights Act (“NJCRA”). In addition to these civil rights
claims, the
plaintiff brings a claim of wrongful death and a survival action unde
r New
Jersey law pursuant to N.J. Stat. Ann. § 2A:31-1 and 2A:15-3.
(See Cplt. pp.
22-23.)3
On December 22, 2014, the State and the HCPO filed a joint motion
to
dismiss the Complaint. (Dkt. No. 8). On February 27, 2015, the
County filed a
separate motion to dismiss. (Dkt. No. 14) The government defendants
4
argue
that they are entitled to sovereign immunity under the Eleventh
Amendment,
and that therefore the claims against them should be dismissed
for lack of
subject matter jurisdiction pursuant to Rule 12(b) (1). In the alterna
tive, they
move under Rule 12(b)(6) to dismiss the Complaint for failure to
state a claim.

2
Because only the government defendants have filed motions to dismis
s, the
claims against Walker and the unidentified individuals are not addres
sed in this
Opinion.

The complaint also asserts a claim of “Assault and Battery and Unlaw
ful Use of
Deadly Force” against defendant Walker only. (See Cplt.
p. 19.)
4
The County filed an answer to the Complaint before filing its motion
to dismiss,
and it also asserts sovereign immunity. (Dkt. No. 13) Its motion might
therefore be
better viewed as one under FED. R. Civ. P. 12(c) (judgment on
the pleadings) and
12(b)(1) (jurisdiction). Because the distinction between Rule 12(c) and
12(b)(6) is
inconsequential to the analysis here, I set it aside.
3

3

II.

STANDARD OF REVIEW

A motion to dismiss for lack of subject matter jurisdiction pursuant to
FED. R. CIV. P. 12(b)(1) may be raised at any time. Iwanowa v. Ford Motor
Co.,
67 F. Supp. 2d 424, 437-38 (D.N.J. 1999). Rule 12(b)(1) challenges are either
facial or factual attacks. See 2 JAMES WM. MOORE, MOORE’S FEDERAL
PRACTICE § 12.3014] (3d ed. 2007). The defendant may facially challen
ge
subject matter jurisdiction by arguing that the complaint, on its face, does
not
allege sufficient grounds to establish subject matter jurisdiction. Iwanowa,
67
F. Supp. 2d at 438. Under this standard, a court assumes that the allegat
ions
in the complaint are true, and may dismiss the complaint only if it appears
to a
certainty that the plaintiff will not be able to assert a colorable claim of subjec
t
matter jurisdiction. Id.
The government defendants’ argument that they are immune from suit
based on the Eleventh Amendment is postured as a facial challenge to the
jurisdictional basis of the Complaint. Accordingly, the Court will take the
allegations of the Complaint as true. See Gould Elecs., Inc. v. U.S., 220 F.3d
169, 178 (3d Cir. 2000).
In addition, and in the alternative, the motions seek dismissal of the
Complaint for failure to state a claim. FED. R. Civ. P. 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 moving party bears the burden of showin
g that
no claim has been stated. Hedges v. United States, 404 F.3d 744, 750
(3d Cir.
2005). In deciding a motion to dismiss under Rule 12(b)(6), a court must take
all allegations in the complaint as true and view them in the light most
favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975)
; Trump
Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483
(3d Cir.
1998); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(“reasonable inferences” principle not undermined by later Supreme Court
Twombly case, infra).

4

FED. R. Civ. P. 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 formulaic recitation of the elements of a cause of action will
not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual
allegations must be sufficient to raise a plaintiff’s right to relief above a
speculative level, such that it is “plausible on its face.” See id. at 570; see also
Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has
“facial plausibility 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 is not akin to a
‘probability requirement’

...

it asks for more than a sheer possibility.” Iqbal, 556

U.S. at 678 (2009).
III.

JURISDICTION: ELEVENTH AMENDMENT
The government defendants move to dismiss the Complaint for lack of

jurisdiction, pursuant to FED. R. Civ. P. 1 2(b)( 1), based on sovereign immunity.
The Eleventh Amendment to the Constitution, which is of jurisdictional
stature, renders the states immune from certain claims: “The Judicial power of
the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.” U.S. Const.
Amend. XI. Despite the limited scope of its wording, the Eleventh Amendment
has for over a century been held to incorporate a more general principle of
sovereign immunity. In general, it bars citizens from bringing suits for damages
against any state in federal court. Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 100-101 (1984); Kelley v. Edison Twp., No. 03-4817,
2006 WL 1084217, at *6 (D.N.J. Apr. 25, 2006) (citing Bennett v. City of Atl.
City, 288 F. Supp. 2d 675, 679 (D.N.J. 2003)); see also Seminole Tribe of
5

Florida v. Florida, 517 U.S. 44, 54 (1996); Edelman v. Jordan, 415 U.S. 651,
662—63 (1974); Hans v. Louisiana, 134 U.S. 1 (1890).
The plaintiff here sues under, inter alia, 42 U.S.C.

§ 1983. Although

Congress may in some circumstances override a state’s sovereign immunity, it
did not do so when it enacted Section 1983. Quem v. Jordan, 440 U.S. 332,
342 (1979). Monetary claims for deprivations of civil rights under Section 1983
are therefore subject to the Eleventh Amendment sovereign immunity bar. Will
v. Michigan Dept. of State Police, 491 U.S. 58, 58 (1989). Closely related is the
principle that State entities are not “persons” who may be subject to liability
under 42 U.S.C.

§ 1983. Id. at 70-7 1.

State-law claims, too, may be barred. Even where jurisdiction is
otherwise proper, the Eleventh Amendment denies a federal court jurisdiction
to hear state-law claims that a state or its agencies violated state law. See
Pennhurst State School & Hosp., 465 U.S. at 121. NJCRA claims for damages
against the state and its entities are subject to a sovereign immunity analysis
similar to that under Section 1983.6 Szemple v. Corr. Med. Servs., 493 F. App’x
238, 241 (3d Cir. 2012); Stroby v. Egg Harbor Twp., 754 F. Supp. 2d 716, 721
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
42 U.S.C. § 1983.
5

The relevant portion of the NJCRA provides:
Any person who has been deprived of any substantive due process or
equal protection rights, privileges or immunities secured by the
Constitution or laws of the United States, or any substantive rights,
privileges or immunities secured by the Constitution or laws of this
State, or whose exercise or enjoyment of those substantive rights,
privileges or immunities has been interfered with or attempted to be
interfered with, by threats, intimidation or coercion by a person acting
under color of law, may bring a civil action for damages and for other
injunctive or other appropriate relief.
N.J. Stat. Ann. § 10:6—2(c).
6

6

n. 5 (D.N.J. 2010) (quoting Chapman v. State of New Jersey, No. 08-4130, 2009
WL 2634888, at *3 (Aug. 25, 2009)). And the NJCRA, like Section 1983, does
not define a “person” to include the state. Didiano v. Balicki, 488 Fed. Appx
634, 638 (3d Cir. 2012) (explaining that “person” as defined in the New Jersey
Code does not encompass the state or its functional equivalents). The Eleventh
Amendment bar of course applies to state common law causes of action as well.
See College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd.,
131 F.3d 353, 355 n.1 (3d Cir. 1997), affd, 527 U.S. 666 (noting that a claim of
common law unfair competition “obviously could not be asserted successfully
[against instrumentality of the state] in light of the Eleventh Amendment”); Doe
v. Division of Youth & Family Servs., 148 F. Supp. 2d 462, 492 (D.N.J.
200 1)(claim of common law negligence was barred by the Eleventh
Amendment).

A. Immunity of the State
The plaintiff’s brief concedes that the “State itself is entitled to Sovereign
Immunity and, therefore, dismissal from the case.” (Dkt. No. 15
p. 4)
Accordingly, all claims against the State of New Jersey are dismissed with
prejudice.
B. Immunity of the HCPO
The protection of the Eleventh Amendment extends, not just to the state
itself, but to arms of the state. These include agencies, departments, and
officials, when the state is the real party in interest. See Pa. Fed’n of
Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002). To determine
whether an entity such as HCPO is an arm of the state, a court must consider
three factors: (1) whether payment of a judgment resulting from the suit would
come from the state treasury, (2) the status of the entity under state law, and
(3) the entity’s degree of autonomy. See Fitchik v. New Jersey Transit Rail
Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989) (en banc). The burden of
establishing immunity rests on the party asserting it. Chisolm v. McManimon,
7

275 F.3d 315, 323 (3d Cir. 2001) (citing Christy v. Pennsylvania Turnpike
Comm’n., 54 F.3d 1140, 1144 (3d Cir. 1995)).
Here, the Fitchik factors weigh in favor of the application of sovereign
immunity to the HCPO with respect to the plaintiff’s primary allegations, which
relate to the training and supervision of officers. (Section III.B.a, infra.) I
address separately the plaintiff’s secondary allegations, which relate to the
HCPO’s personnel decisions. (Section III.B.b, infra.)

a.

Law enforcement training and supervision
1. Fitchik factor 1

The first question in assessing Eleventh Amendment immunity is
whether a money judgment against the defendant “would be paid from the
state treasury.” Fitchik, 873 F.2d at 659. A “central goal” of the Eleventh
Amendment is “the prevention of federal court judgments that must be paid
out of the state’s treasury.” Id. at 659—60.
There has been an authoritative statement that any judgment in this
case would be paid from the state treasury. The New Jersey Attorney General
has determined that the State has a duty to indemnify the HCPO pursuant to
the New Jersey Tort Claims Act (“NJTCA”), N.J. Stat. Ann.
Dkt. No. 8 p. 12; Dkt. No. 8-2

8
§ 59:1OA-1. (See

¶ 3.) The plaintiff argues that the State’s decision

The Court of Appeals for the Third Circuit long held that Fitchik factor 1 was
“the most important factor” in the analysis. Chisoim, 275 F.3d at 323 (citing cases);
see also Christy 54 F.3d at 1145 (most Circuits “generally accord[] this factor
dispositive weight”) (citing Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 48
(1994)). More recently, however, the Court of Appeals has stated that “we L] no longer
ascribe primacy to the first factor.” Berm v. First Judicial Dist. of Pa., 426 F.3d 233,
239 (3d Cir. 2005). The financial liability factor is now considered just “one factor co
equal with [the] others in the immunity analysis.” Id. at 240.
8
In relevant part, the NJTCA states:
[T]he Attorney General shall, upon a request of an employee or former
employee of the State, provide for the defense of any action brought
against such State employee or former State employee on account of an
act or omission in the scope of his employment.
N.J. Stat. Ann.

§ 59:1OA-1.
8

to indemnify the HCPO is merely strategic and should not be given great
weight. However, courts in this district have found the State’s commitment to
indemnify the defendant agency to be persuasive. See In re Camden Police
Cases, No. 11-1315, 2011 WL 3651318, at *5 (D.N.J. Aug. 18, 201 1)(finding
the first Fitchik factor satisfied in part because “the Attorney General has in
fact indemnified the [County Prosecutor’s Office] for any judgment in this
case”); Kandil v. Yurkovic, No. 6-470 1, 2007 WL 4547365, at *3 (D.N.J. Dec. 18,
2007)(”Further, the State is

...

indemnifying the [County Prosecutor’s Office]

regarding all matters of this case.”) (internal quotations omitted); Landi v.
Borough of Seaside Park, No. 7-53 19, 2009 WL 606141, at *4 (D.N.J. March 9,
2009)(noting as part of the Fitchik analysis, that the Attorney General was
indemnifying the County Prosecutor’s Office) .‘ I agree with that approach, and
will follow it.
Even setting aside the Attorney General’s ruling, I would be constrained
to agree that the State is obligated to indemnify the HCPO. Under New Jersey
law, when county prosecutors and their subordinates perform law enforcement
and prosecutorial functions, “they act as agents of the State.” As such, they are
entitled to indemnity under the NJTCA for judgments arising from such
conduct. Wright v. State, 169 N.J. 422, 450, 778 A.2d 443, 46 1—62, 464 (2001).
County prosecutors do not always act as State agents, however; they do
so only when discharging their law enforcement and prosecutorial functions.
Thus a court must determine “in which capacity the prosecutor’s office was
acting when the actions that gave rise to the plaintiff’s claims took place.”

True, the Third Circuit has found that “discretionary subsidies committed [by
the State] in reaction to a judgment ... would not necessarily transform the recipients
into alter egos of the state.” Christy, 54 F.3d at 1147 (quoting Bolden v. Southeastern
Pa. Transp. Authority, 953 F.2d 807, 819 (3d Cir. 1991)); see Fitchik, 873 F.2d at 661
(“Although New Jersey might appropriate funds to [defendant] to meet any shortfall
caused by judgments against [defendant], such voluntary payments by a state do not
trigger [Eleventh Amendment] immunity.”) The decision here—a pre-judgment
determination by the Attorney General that the State is obligated by law to indemnify
the HCPO—is different.
9

9

Landi, 2009 WL 606141, at *4; Reed v. Straniero, No. 06-3496, 2009 WL
3230861, at *5 (D.N.J. Oct. 1, 2009).
The case law provides some guidance as to drawing that distinction.
“[W]hen county prosecutors are called upon to perform administrative tasks
unrelated to their strictly prosecutorial functions, such as a decision whether
to promote an investigator,” they act on behalf of the county and are not
entitled to state indemnification. Coleman v. Kaye, 87 F.3d 1491, 1499 (3d Cir.
1996). But training and policy decisions that “require legal knowledge and the
exercise of related discretion” are prosecutorial functions, which are therefore
to be distinguished from administrative tasks like “workplace hiring.” See Van
de Kamp v. Goldstein, 555 U.S. 335, 344 (2009).’°
The complaint’s allegations against the HCPO are primarily that it did
not properly train or supervise Walker. That deficient training allegedly
resulted in his off-duty shooting and killing of Mr. Harvey with his service
weapon. See, e.g., Cplt.

¶

3 (“All claims asserted in this action arise out of the

incident resulting in the death of Joseph Harvey

....“);

¶

9.b (HCPO is

responsible for “proper training regarding the use of service weapons
as

...

the use of deadly force”);

¶

...

as well

49 (HCPO lacked adequate policies on “the

excessive use of force by its law enforcement officers”);

¶

67 (HCPO failed to

properly train and supervise employees related to a “anti-harassment and antiretaliation policy”);

¶

68 (HCPO failed to “adequately train officers and/or

10
In Carter v. City of Philadelphia, 181 F.3d 339 (1999) the Third Circuit held that
a prosecutor’s office’s policies regarding training and supervision involved
administration rather than law enforcement. That case, however, turned on
Pennsylvania law and so was not governed by Wright. For that reason, I believe that
Carter is an unreliable guide to the status of a county prosecutor’s office in New
Jersey. See In re Camden Police Cases, 2011 WL 3651318, at *7 n.7 (“Indeed, in
Carter, the principal case relied on by Plaintiff, the Third Circuit considered whether,
under Pennsylvania law, the Philadelphia District Attorney’s Office was an arm of the
Commonwealth of Pennsylvania under the Fitchik factors
Here, the Court must
analyze whether the CCPO is an arm of the State of New Jersey under New Jersey law.
Thus, the Court is guided by the Third Circuit’s analysis in Hyatt, which granted
immunity under the Eleventh Amendment to a New Jersey county prosecutor. See
[Hyatt v. County of Passaic, 340 F. App’x 833, 835 (3d Cir. 2009)].”).
...

10

detectives to respond appropriately in confrontational situations, to refrain
from excessive use of force”).
I find that training and supervision of a detective as to the permissible
use of deadly force is no mere administrative or personnel matter. It lies at the
core of the HCPO’s law enforcement functions. For claims arising from that
training, the HCPO would be entitled to indemnification under the NJTCA. See
Wright, 169 N.J. at 450, 778 A.2d at 461-62.
Accordingly, because (1) the state will, in fact, be responsible for any
judgment against the HPCO, and (2) the HCPO’s supervision and training of
officers is a law enforcement function, the first Fitchik factor weighs strongly in
favor of sovereign immunity with respect to these allegations.

ii. Fitchik factors 2 & 3
The second and third Fitchik factors are interrelated, and I discuss them
together. The second factor asks “whether state law treats [the HCPO] as
independent, or as a surrogate for the state.” Fitchik, 873 F.2d at 662. The
third requires an inquiry into the HCPO’s “degree of autonomy” in relation to
the State of New Jersey. Id. at 659. Less legal independence, or less autonomy,
would tend to argue against sovereign immunity. I find that both the second
and third factors weigh against sovereign immunity for HCPO, which is a
creature of the State.
County prosecutors are “appointed by the Governor with the advice and
consent of the [State] Senate.” N.J. Const., Art. VII, Section 11.1. By state
statute, “the criminal business of the State shall be prosecuted by the Attorney
General and the county prosecutors.” N.J. Stat. Ann.

§ 2A: 158-4. As discussed

above, it is well established that the HCPO acts on behalf of the State when
performing prosecutorial functions such as training and supervising its
investigators. Wright, 169 N.J. at 450, 778 A.2d at 462 (“when prosecutors
perform their law enforcement function, they are discharging a State
responsibility that the Legislature has delegated to the prosecutors
11

...

the

county prosecutors’ law enforcement function is clearly a State function.”); see
Hyatt v. County of Passaic, 340 Fed. App’x 833, 836 (3d Cir. 2009)(under New
Jersey law, when county prosecutors and their subordinates perform law
enforcement and prosecutorial functions, “they act as agents of the state”)
(quoting Wright, 169 N.J. at 461-62, 778 A.2d at 464). Legally, then, the HCPO
is closely bound to the State, and is not an independent entity.
New Jersey law provides that the Attorney General shall maintain a
supervisory role over the HCPO. See Wright, 169 N.J. at 452, 778 A.2d at 462.
The Attorney General is authorized by statute to intervene and supersede any
county prosecutor in a criminal investigation or proceeding. N.J. Stat. Ann.

§

52:17B—107(a).” If a county does not have a prosecutor, the Attorney General
is required to prosecute criminal matters for that county. See N.J. Stat. Ann.

§

52: 17B—104. The Attorney General is also empowered to issue binding
directives to a county prosecutor’s office. See, e.g., In re Camden Police Cases,
2011 WL 3651318, at *4041. In short, whatever autonomy the county
prosecutor’s office possesses in law enforcement matters is both limited and
subject to supersession at the pleasure of the State.
Because all three of the Fitchik factors weigh in favor of sovereign
immunity, I find that the HCPO must be treated as an arm of the State for
purposes of these claims, which arise from the training and supervision of
investigative officers. Accordingly, these claims are barred by the Eleventh
Amendment and are dismissed with prejudice for lack of subject matter
jurisdiction.

Whenever in the opinion of the Attorney General the interests of the State will
be furthered by so doing, the Attorney General may (1) supersede a county
prosecutor in any investigation, criminal action or proceeding, (2) participate in
any investigation, criminal action or proceeding, or (3) initiate any investigation,
criminal action or proceeding. In such instances, the Attorney General may
appear for the State in any court or tribunal for the purpose of conducting such
investigations, criminal actions or proceedings as shall be necessary to promote
and safeguard the public interests of the State and secure the enforcement of
the laws of the State.
N.J. Stat. Ann. § 52:17B-107(a):
12

b.

Personnel decisions

Not all of the claims against the HCPO relate strictly to law enforcement
training, however. In a handful of instances throughout the Complaint—
usually as part of a laundry list of verbs—there are parallel allegations that
arguably implicate the HCPO’s more pedestrian administrative or personnel
decisions. See, e.g., Cplt.

¶

28 (HCPO failed to “properly screen, hire, train,

evaluate, supervise, and/or control its employees”);

¶

59 (HCPO was

responsible for “training, hiring, screening, instruction, supervision[,]
evaluation and/or discipline” of employees). It must be said that these are not
clearly alleged as separate claims. The plaintiff explains, however, that these
components of the claims involve “negligent hiring

...

[and] discipline, or lack

thereof.” (Dkt. No. 15 p. 8) I will assume that claims of negligent hiring and
failure to discipline have been alleged. As to these, I discuss the Fitchik factors
separately.
Administrative tasks concerning personnel—hiring, firing, promotion,
demotion—are to be distinguished from law enforcement functions. See Van de
Kamp, 555 U.S. at 344. When performing such administrative functions, the
HCPO has more autonomy; it acts more as a component of county government,
rather than as an arm of the State. See Coleman, 87 F.3d at 1499; Hyatt, 340
Fed. App’x at 836. As to a judgment arising from claims involving these
administrative functions, the NJTCA would not mandate indemnification by the
12
State. Therefore, as to the claims of negligent hiring or failure to discipline,
the first Fitchik factor weighs against sovereign immunity.
For the same reason, the second and third Fitchik factors also lean
against the application of sovereign immunity. The HCPO points to no statutory
or defacto domination of its administrative or personnel functions by the State.

Of course, the State might, as a matter of discretion, decide to indemnify the
County after the fact. But that is a far weaker claim under Fitchik factor 1. See n.9,
supra. Because I find no strong basis for sovereign immunity under factors 2 or 3,
either, discretionary indemnification would not tip my analysis.
12

13

Administrative tasks are not part of the HCPO’s core law enforcement function,
and therefore would not be regarded as state functions under Wright.
The Fitchik factors therefore work against the application of sovereign
immunity with respect to claims arising from the HCPO’s ordinary
administrative or personnel decisions. Accordingly, I will not dismiss on
jurisdictional grounds the Complaint’s allegations of negligent hiring and
failure to discipline.’
3

c. Immunity of the County
The County asks the Court to “apply analogously” the brief submitted on
behalf of the State. (Dkt. No. 14 p. 4) That is a question-begging request;
whether the County should be treated as an arm of the State is the very crux of
the Eleventh Amendment issue. I will nevertheless briefly address the sovereign
immunity issue as it applies to the County.
In general, counties are not entitled to the benefits of the Eleventh
Amendment, and they do not partake of the State’s immunity. See Lake
Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401
(1979)(”[Tlhe Court has consistently refused to construe the [Eleventhi
Amendment to afford protection to political subdivisions such as counties and
municipalities even though such entities exercise a ‘slice of state power.”).
In addition, the “party asserting Eleventh Amendment immunity (and
standing to benefit from its acceptance) bears the burden of proving its
applicability.” Christy, 54 F.3d at 1144. Here, the County has made no attempt
to demonstrate that it is entitled to sovereign immunity pursuant to Fitchik.
The County does not so much as argue, let alone demonstrate, that any
judgment against it will be paid by the State, that it is legally a surrogate for
the State, or that it lacks autonomy.

I will dismiss these claims without prejudice, however, for failure to state a
claim. See Section IV.A, infra.
13

14

Accordingly, I will not dismiss the claims against the County based on
sovereign immunity.

IV.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
The government defendants move in the alternative to dismiss the

Complaint for failure to state a claim, pursuant to FED. R. Civ. P. 12(b)(6). On
grounds of sovereign immunity, I have already dismissed all claims against the
State, as well as the law enforcement training related claims against the HCPO.
I therefore consider this Rule 12(b)(6) motion only in relation to the remaining
claims against the HCPO (Section IV.A) and the County (Section IV.B).

A. Claims against the HCPO
a. Counts I & II: vicarious liability
Counts I and II (to the extent not already dismissed on sovereign
immunity grounds) assert Section 1983 claims against the HCPO for violations
4
of several amendments to the Constitution.’ The HCPO, however, was not
directly involved in the events in suit; rather, it is alleged to be liable for the
acts of Walker.
Under Section 1983, a local government unit cannot be held vicariously
liable for the acts of an employee via respondeat superior. It may, however, be
held directly liable for its own acts. Counts I and II, however, do not contain
facts to support such direct liability. See Monell v. New York City Dept. of Social
Servs., 436 U.S. 658, 694 (1978); Rode v. Dellarciprete, 845 F.2d 1195, 1207
(3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981); Hampton
v. Holmesburg Prison Offcials, 546 F.2d 1077, 1082 (3d Cir. 1976)).
Counts I and II are dismissed as against the HCPO with prejudice, to the
extent that they rest on a vicarious liability theory. To the extent Counts I and
II (on their own or in combination with Counts III and IV) are meant to allege

‘4

Actually, Count I cites the Constitution, but does not cite 42 U.S.C. § 1983. I

assume that Count I, like Count II, is intended as a Section 1983 claim.
15

direct liability on the part of HCPO based on hiring and discipline, the motion
to dismiss is denied. (See Section IV.A.b, immediately following.)

b. Counts III & IV: Supervisory and Monell

§ 1983 liability

Counts III and IV attempt to state theories by which the HCPO might be
found liable in its own right (i.e., not vicariously or by respondeat superior) for
Walker’s acts. Count III asserts “supervisory liability”; Count IV specifically
cites Monell, supra. Both attempt to state how the HCPO’s own actions
contributed to the violations alleged. Because both rest on, inter alia, HCPO’s
hiring and disciplinary practices, I discuss them together.
A local government unit is a “person” potentially liable under Section
1983. Monell, 436 U.S. at 690. But it is liable only to the extent that its own
policies or practices led to a deprivation of constitutional rights. Id. at 694. A
municipality or local government unit, then, can be found liable under Section
1983 “where its policies are the ‘moving force [behindi the constitutional
violation”’ that is alleged. City of Canton Ohio v. Harris, 489 U.S. 378, 389
(1989) (quoting Monell, 436 U.S. at 694).
That liability-creating “force” may be exercised through formal policy or
custom. Policy is made when a “decisionmaker possess[ing] final authority to
establish [local] policy with respect to the action’ issues an official
proclamation, policy, or edict.” Andrews v. City of Philadelphia, 895 F.2d 1469,
1480 (3d Cir.1990) (quoting Pembaur u. City of Cincinnati, 475 U.S. 469, 481
(1986)). “Custom, on the other hand, can be proven by showing that a given
course of conduct, although not specifically endorsed or authorized by law, is
so well-settled and permanent as to virtually constitute law.” Bielevicz v.
Dubinion, 915 F.2d 845, 850 (3d Cir. 2007) (citing Andrews, 895 F.2d at 1480).
The Complaint attempts to impute liability to the HCPO based on policies
and customs, both in general and as they specifically relate to Walker. Count
III (or rather the portion of Count III that is not barred by sovereign

16

5
immunity),’ alleges that HCPO’s improper hiring and discipline of its
employees constituted “customs and policies” that contributed to Mr. Harvey’s
death. (Cplt.

¶J

64, 65) Count IV similarly alleges that defendants “failed to

ensure through custom, policy and/or practice that sufficient levels of
screening, evaluating, training and supervision of all of its employees
particularly Walker were in place,” and that this led to Harvey’s death. (Cplt.
70; see also Cplt.

¶

¶

73)

The claims against the HCPO are expressed fairly generally. I will
6
construe the Complaint, however, as asserting Section 1983 claims’ against
the HCPO under the following theories: negligent hiring and failure to
discipline.

1. Negligent Hiring
The Complaint alleges that the HCPO had a general policy or custom of
failing to screen applicants, which led to the imprudent hiring of Walker. See
Cplt.

¶

70 (defendants “failed to ensure through custom, policy and/or practice

that sufficient levels of screening
Walker were in place

...

...

of all of its employees

...

particularly

which ultimately led to the Plaintiff’s Decedent’s

untimely and painful death”).
Such an allegation gets around the bar on purely vicarious liability. The
Complaint, however, states no facts to support its generalized allegation that
the HCPO had a custom or policy of failing to screen officers before it hired
them. To the extent the negligent hiring claim rests on a “custom” or “policy”
theory, it fails for lack of specificity. See Twombly, supra; Iqbal, supra.

15
Recall that claims of failure to train and supervise officers, which implicate the
HCPO’s law enforcement functions, are barred by the Eleventh Amendment. See
Section III.B.a, supra.

The Complaint appears to assert claims of negligent hiring and failure to
discipline pursuant to Section 1983. If state law claims are intended, any amended
complaint should make that clear.
16

17

It is also true that a Section 1983 negligent hiring claim may arise from a
single failure to screen a particular employee (here, Walker). Such a cause of
action, however, must be very specifically tailored to the facts:
Every injury suffered at the hands of a [local] employee can be
traced to a hiring decision in [this] “but-for” sense: But for the []
decision to hire the employee, the plaintiff would not have suffered
the injury. To prevent municipal liability for a hiring decision from
collapsing into respondeat superior liability, a court must carefully
test the link between the policymaker’s inadequate decision and
the particular injury alleged.
Board of County Com’rs. of Bryan County, Oki. v. Brown, 520 U.S. 397, 410
(1997). Courts have “consistently interpreted [Brown] to mean that [local]
liability for negligent hiring based on a single hiring decision requires the
threat identified in an applicant’s background to be basically identical to the
harm eventually caused by the applicant.” MS ex rel. Hall v. Susquehanna
Township School Dist., 43 F. Supp. 3d 412, 426 (M.D. Pa. 2014) (emphasis in
original); see Adams v. City of Camden, 461 F. Supp. 2d 263, 268-69 (D.N.J.
2006) (single-incident negligent hiring claim “must depend on a finding that this
officer was highly likely to inflict the particular injury suffered by the plaintiff’
and not just “the mere probability that any officer inadequately screened will
inflict any constitutional injury”) (quoting Brown, 520 U.s. at 411-12).
The Complaint alleges no facts about the process by which Walker was
hired. It identifies no warning signs in his background that a diligent search
would have uncovered. And it fails to allege that such facts, if uncovered,
would have prevented a prudent employer from hiring Walker. The Federal
Rules do not permit a party simply to claim that something is true in the hope
that it might be. Even allegations on information and belief (which these are
not) require a good faith, diligent investigation.’
7

Pleading on information and belief “does not relieve litigants from the obligation
to conduct an appropriate investigation into the facts that is reasonable under the
circumstances; it is not a license to
make claims
without any factual basis or
justification.” FED. R. CIV. P. 11, Notes of Advisory Committee on 1993 Amendments.
17

...

...

18

That said, common sense suggests that the relevant facts are largely
within the control of the HCPO. I will therefore, at least for the time being, deny
the motion to dismiss Counts III and IV, to the extent they allege a negligent
hiring claim. Discovery as against the HCPO should focus on this claim.
Should supporting evidence fail to materialize, I will permit an early, focused
motion for summary judgment.

2. Failure to Discipline

The Complaint makes similarly generalized allegations with respect to
the HCPO’s disciplinary practices. See Cplt. ¶ 73 (defendants’ “failures to
discipline their employees

were conducted under color of state law and such
unconstitutional customs, practices and/or policies amounted to
deliberate
...

...

indifference

and were the moving force behind the Plaintiff’s decedent’s
untimely and painful death...”). These are legal conclusions, not facts.
...

The Third Circuit has held that a claim for failure to discipline “can only
form the basis for section 1983 Monell liability if the plaintiff can show both
contemporaneous knowledge of the offending incident[,] or knowledge of a prior
pattern of similar incidents[,] and circumstances under which the supervisor’s
actions or inaction could be found to have communicated a message of
approval to the offending subordinate.” Baldarti v. Township of Millbum, No. 074792, 2008 WL 4512939, at *5 (D.N.J. Sept. 29, 2008) (quoting Montgomery v.
De Simone, 159 F.3d 120, 126-27 (3d Cir. 1998)); see MS ex rel. Hall, 43 F.
Supp. 3d at 425 (a claim of “negligent retention/failure to discipline” under
Monell requires “indifference and knowledge by a policymaker”). The Complaint
alleges no such facts.
First, the Complaint falls to identify any general HCPO policy or custom
of failing to discipline employees. No examples are given. Nor does the
Complaint allege a pattern of violations resulting from failure to discipline
employees. Indeed, the Complaint does not say anything at all factually about

19

what the disciplinary policies of the HCPO were, or how they were
implemented.
Second, with respect to Walker specifically, the Complaint fails to allege a
single fact about disciplinary action or inaction by the HCPO. It does not name
even one prior incident for which Walker was not disciplined—let alone a
pattern of such incidents that were condoned by a supervisor.
Here again, however, the relevant facts are likely within the exclusive
control of the HCPO. I will therefore deny the motion to dismiss Counts III and
IV, to the extent they allege a failure to discipline claim. Discovery as against
the HCPO should focus on this claim, and if appropriate I will permit an early,
focused motion for summary judgment.

c.

Count VI: NJCRA Claim

Count VI alleges against the HCPO a deprivation of civil rights, in
violation of the NJCRA. This count asserts an alternative legal theory, but
contains no additional facts. The NJCRA is construed closely in parallel to
Section 1983. The pattern of Section 1983 dismissals will therefore be
duplicated as to the NJCRA claim.
The training or supervision claims against HCPO, under Section 1983 or
the NJCRA, must be dismissed on Eleventh Amendment grounds.
The NJCRA, like Section 1983, does not impose vicarious or respondeat
superior liability. See Perez v. New Jersey, No. 14-46 10, 2015 WL 4394229, at
*8 (D.N.J. July 15, 2015) (“[Blecause respondeat superior liability is not
permitted under

§ 1983, and because New Jersey courts interpret the NJCRA
as analogous to § 1983, the Court holds that respondeat superior liability is not
permitted for claims under the New Jersey Constitution and the NJCRA.”)
(quoting Ingram v. Twp. Of Deptford, 911 F. Supp. 2d 289, 298 (D.N.J. 2012));
Estate of Dasaro v. County of Monmouth, No. 14-7773, 2015 WL 5771606, at *5
n.3 (D.N.J. Sept. 30, 2015)(same). To the extent the Count VI NJCRA claim is
premised on the HCPO’s vicarious liability for the actions of Walker, then, it is

20

dismissed with prejudice. See Section IV.A.a, supra.
Alternatively, the Complaint may be intended to allege supervisory or
Monell-style liability against the HCPO under the NJCRA. If so, it is likewise
dismissed to the extent stated in Section IV.A.b, supra, but sustained as to
8
claims based on hiring and discipline.’ See B.D. v. Board of Educ. Of the
Greater Egg Harbor Regional High School District, No. 14-7232, 2015 WL
4508303, at *6 (D.N.J. July 24, 2015)(rejecting NJCRA claim based on
respondeat superior, citing Monell, and stating that to succeed on the claim, the
plaintiff must “allege that the supervisory defendants maintained a policy or
custom regarding the alleged discrimination”); Hudgon v. LaFleur, No. 07-3626,
2010 WL 2950004, at *7 n.6 (D.N.J. July 22, 2010)(”the Court sees no reason
not to interpret the NJCRA consistent with Monell as precluding municipal
liability absent an official pattern or practice.”).
Count VI, then, is dismissed as against the HCPO, except for the claims
based on hiring and failure to discipline.

d.

Counts VII & VIII: Wrongful Death and Survivor’s Acts

Counts VII and VIII assert claims against the HCPO under the Wrongful
Death Act and the Survivor’s Act. The two theories are not segregated as
between the two counts. See, e.g., Cplt.

¶

83 (citing both New Jersey Wrongful

Death Act and Survivor’s Act). Those statutes authorize a survivor or a
decedent’s estate to assert claims, but do not themselves define the scope of
such underlying claims. To some extent, the Complaint leaves the Court
guessing as to what those underlying claims are intended to be. Lacking any
other guidance, I will assume that they would duplicate the Section 1983 and
NJCRA claims discussed above.
As against the HCPO, then, the Survivor’s Act and Wrongful Death
claims must be dismissed precisely to the extent that the earlier counts have
Monell-style claims under the NJCRA related to the HCPO’s law enforcement
functions are barred by Eleventh Amendment sovereign immunity, as discussed
supra.
18

21

been dismissed. The only remaining claims against the HCPO are Section 1983
and NJCRA causes of action for negligent hiring and failure to discipline.
Accordingly, the claims brought under the Wrongful Death and Survivor’s Acts
would be confined to those theories as well.
A wrongful death claim is asserted against the HCPO by Mr. Harvey, Sr.,
on his own account, based on the harm that he has suffered as a result of his
son’s death. See N.J. Stat. Ann.

§ 2A:31-1 et seq. “[T]he Wrongful Death Act

provides to decedent’s heirs a right of recovery for pecuniary damages for their
direct losses as a result of their relative’s death due to the tortious conduct of
another

....

Thus, a wrongful death action ‘compensate[s] survivors for the

pecuniary losses they suffer’... .“ Aronberg v. Tolbert, 207 N.J. 587, 603, 25 A.3d
1121, 1130 (2011) (quoting Smith v. Whitaker, 160 N.J. 221, 231, 734 A.2d 243
(1999)).
A wrongful death claim, however, cannot go forward in the absence of a
valid underlying claim against the defendant. “[Under] the Wrongful Death Act,
the viability of a claim is triggered by a ‘wrongful act’ causing death ‘such as
would, if death had not ensued, have entitled the person injured to maintain
an action for damages resulting from the injury.’ N.J.S.A. 2A:31—1.” Id., 207
N.J. at 602, 25 A.3d at 1130.
Mr. Harvey, Sr., as administrator of the estate of his son, also brings a
claim under The Survivor’s Act, N.J. Stat. Ann.

§ 2A: 15-3. Survivor’s and

Wrongful Death Act claims are distinct, but parallel in one important way: both
provide that a viable cause of action will outlive the victim. The Survivor’s Act
preserves a right of action that the deceased himself would have possessed,
and permits it to be brought on behalf of the estate. See Aroriberg, 207 N.J. at
593, 25 A.3d at 1124. Thus a survivor’s action depends on whether the
decedent would have possessed a viable claim against the defendant:
Under the Survivor’s Act, a claim may be pursued by the
where death
decedent’s estate if there was a ‘wrongful act
resulted from injuries for which the deceased would have had a
cause of action if he had lived.’ N.J.S.A. 2A: 15—3... .[Tjhe estate in a
survivor’s action has no better claim than [the decedenti had in
...

22

life.
Aronberg, 207 N.J. at 603, 25 A.3d at 1130.
To the extent that the other claims have been dismissed as to the HCPO,
then, the derivative Wrongful Death Act and Survivor’s Act claims must be
dismissed as well. See Abramson v. Ritz-Canton Hotel Co., LLC, No. 09-3264,
2011 WL 2149454, at *5 (D.N.J. May 31, 2011), affd, 480 F. App’x 158 (3d Cir.
2012) (finding plaintiff’s wrongful death claim “derivative of the underlying
negligence claim,” and determining that “[b]ecause the negligence claim will be
dismissed, plaintiff’s derivative claims will also be dismissed”); Durkin v. Paccar,
Inc., No. 10-2013, 2010 WL 4117110, at *4 (D.N.J. Oct. 19, 2010)(noting that
the plaintiff’s “derivative claims” pursuant to the wrongful death and
survivorship statues would not be addressed by the court because they were
“dependent upon the validity” of counts that had already been dismissed).
I have already held that, as to the HCPO, a number of causes of action
must be dismissed on jurisdictional or substantive grounds. The analogous
Wrongful Death and Survivor’s Act claims, because they depend on the validity
of the underlying claims, must be dismissed as well. They are valid only to the
extent the earlier counts are valid: i.e., to the extent they assert negligent hiring
9
and failure to discipline.’
Accordingly, Counts VII and VIII are dismissed as against the HCPO to
the same extent that the earlier counts have been dismissed. The jurisdictional
dismissals are with prejudice, and dismissals for failure to state a claim are
without prejudice.

Without prejudging the issue, I also note the provisions of the NJTCA that
govern immunity of public entities under New Jersey law. See N.J. Stat. Ann. § 59:2—i
et seq.; see also Wymbs ex rel. Wymbs v. Twp. of Wayne, 163 N.J. 523, 539, 750 A.2d
751, 760 (2000) (“It is well established that the burden is on the public entity both to
plead and prove its immunity under [the NJTCA].”).
23

B. Claims against the County
None of the claims against the County were barred on jurisdictional
grounds based on Eleventh Amendment sovereign immunity. I will therefore
analyze all of the complaint’s allegations against the County to determine
whether they state a claim.

a.

Counts I & II

Any theory of the County’s vicarious liability implicit in Counts I and II is
insufficient in law. As to Counts I and II, the defective respondeat superior
rationale is identical to that discussed and rejected in Section IV.A.a, supra.
Nor do Counts I and II contain any facts suggesting that the County (as
opposed to Walker’s direct employer, the HCPO), had anything to do with the
HCPO’s supervision, training, hiring, or discipline of Walker.
Accordingly, Counts I and II are dismissed in their entirety as against the
County. To the extent those Counts assert respondeat superior liability, that
dismissal is with prejudice. The dismissal is without prejudice, however, to the
submission of a properly supported amended complaint alleging that the
County had actual involvement in supervision, training, hiring, or discipline of
Walker. (See Section IV.B.b, immediately following.)

b.

Counts III and IV: Supervisory or Monell Liability

As discussed in section IV.A.b, supra, a local government may be liable
to the extent that its own policies and customs led to a deprivation of
constitutional rights. I will generously read the Complaint to allege against the
County claims of failure to supervise and failure to train, as well as negligent
20
hiring and failure to discipline.

Recall that, as to the County (as opposed to the HCPO), there has been no
showing that the failure to supervise and failure to train claims are barred by the
Eleventh Amendment. Compare Sections III.B.a & b with Section III.B.c, supra.
20

24

1. Failure to supervise
A claim of failure to supervise requires deliberate indifference. A plaintiff
must allege and prove that “1) [local] supervisors had contemporaneous
knowledge of the offending incident or of a ‘prior pattern of similar incidents,’
and 2) the supervisors’ action or inaction somehow communicated approval of
the offending behavior.” Tobin v. Badamo, 78 Fed. App’x 217, 219 (3d Cir.
2003)(quoting Montgomery, 159 F.3d at 126-27).
The allegations relating to the County’s failure to supervise are dismissed
without prejudice. As stated in Section IV.A.b.2, supra, the Complaint fails to
state any facts suggesting knowledge, a pattern of incidents, or the County’s
explicit or tacit communication of approval. No direct involvement by the
County can be inferred from the factual allegations. Nor is there any reason to
think that the facts relevant to the HCPO’s supervision of its investigators are
in the possession of the County. I will therefore dismiss the claims against the
County without prejudice for failure to state a claim under the standards of
Iqbal and Twombly. See pp. 3—4, supra.
2. Failure to train
Alleging County “liability on a failure to train claim under

§ 1983 is

difficult.” Reitz v. County of Bucks, 125 F.3d 139, 145 (3d Cir. 1997). “Only
where a municipality’s failure to train its employees in a relevant respect
evidences a ‘deliberate indifference’ to the rights of its inhabitants can such a
shortcoming be properly thought of as a city ‘policy or custom’ that is
actionable under

§ 1983.” Canton, 489 U.S. at 389. Typically “[al pattern of

similar constitutional violations by untrained employees is necessary to
demonstrate deliberate indifference for purposes of failure to train.” Smart v.
Township of Winslow, No. 13-4690, 2015 WL 5455643, at *5 (quoting Connick
v. Thompson, 131 S.Ct. 1350, 1359, 179 L. Ed. 2d 417 (2011) (internal
quotations omitted); see Berg v. County of Allegheny, 219 F. 3d 261, 276 (3d
Cir. 2000)(deliberate indifference generally requires that “the failure has caused

25

a pattern of violations”).
This Complaint speaks solely in conclusions and generalities, and fails to
allege any concrete facts in support of a failure to train claim. In particular, the
Complaint identifies no pattern of violations that the County knew about or
failed to remedy. See discussion at Section IV.A.b.2, supra.
There is a second option: a “single incident” claim. Under a “narrow
range of circumstances,” a failure to train claim may be established without a
pattern of violations. See Gaymon v. Esposito, No. 11-4170, 2013 WL 4446973,
at *14 (D.N.J. Aug. 16, 2013)(”There are two means of finding such deliberate
indifference in a failure to train claim: (1) through a pattern of similar
constitutional violations

...

and (2) ‘single-incident’ liability... .“) (citations

omitted); see also Brown, 520 U.S. at 409 (“In Canton, we did not foreclose the
possibility that evidence of a single violation of federal rights, accompanied by a
showing that a municipality has failed to train its employees to handle
recurring situations presenting an obvious potential for such a violation, could
trigger municipal liability.”). A “single-incident” failure to train claim can arise
when “in light of the duties assigned to specific officers or employees the need
for more or different training is so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, that the policymakers of the city
can reasonably be said to have been deliberately indifferent to the need.”
Canton, 489 U.S. at 390; see also MS ex rel. Hall, 45 F. Supp. 3d at 425. The

Court in Canton offered the example of failing to train police officers on the
limitations of deadly force despite a “moral certainty” that officers will use force
“to arrest fleeing felons.” Canton, 489 U.S. at 390 n.10.
In Connick, the Court recently clarified that the hypothetical case posed
in Canton was limited to a scenario where “the armed police officers have no
knowledge at all of the constitutional limits on the use of deadly force.” Connick
131 S.Ct. at 1363 (emphasis added). Addressing a claim of inadequate training
of prosecutors regarding their Brady obligations, the Court explained:
[Ijt is undisputed here that the prosecutors in Connick’s office were
familiar with the general Brady rule. Thompson’s complaint
26

therefore cannot rely on the utter lack of an ability to cope with
constitutional situations that underlies the Canton hypothetical,
but rather must assert that prosecutors were not trained about
particular Brady evidence or the specific scenario related to the
violation in his case. That sort of nuance simply cannot support an
inference of deliberate indifference here. As the Court said in
Canton, “[i]n virtually every instance where a person has had his or
her constitutional rights violated by a city employee, a § 1983
plaintiff will be able to point to something the city ‘could have done’
to prevent the unfortunate incident.” 489 U.S., at 392, 109 S.Ct.
1197 (citing [City of Oklahoma v. Thttle, 471 U.S. 808, 823 (1985)]
(plurality opinion)). But showing merely that additional training
would have been helpful in making difficult decisions does not
establish municipal liability.
Id.; see also Thomas v. Cumberland County, 749 F.3d 217, 225 (3d Cir. 2014)

(reversing grant of summary judgment against plaintiff’s failure to train claim
and giving weight to the fact that the officers had no training at all on the
relevant subject); Smart u. Winslow, No. 12-4690, 2015 WL 5455643, at *6
(D .N .J. 2015) (dismissing claim in part because the complaint did not contain
allegations that the township “does not train police officers on exigent
circumstances”).
Here, the plaintiff does not allege, along the lines of the hypothetical case
posed in Canton, that the officers received no training in the use of deadly
force. Instead, the plaintiff seems to allege, along the lines of Connick, that the
officers should have been given additional or better training. See, e.g., Dkt. No
1

¶ 27 (“[T]he County

...

failed to adequately

(the County failed “to properly

...

train

...

...

train its employees....”);

¶ 28

its employees”)(emphasis added).

More fundamentally, the plaintiff’s allegations are too general and
conclusory to sustain a claim of failure to train. Here, as elsewhere, the
Complaint merely posits that, because this shooting occurred, Walker’s
training must have been inadequate. It states no facts about the training that
the officers generally, or Walker in particular, did or did not receive. See Smart,
2015 WL 5455643, at *6 (dismissing claim against township where the plaintiff
did not allege that the “specific training program is deficient” and against the
27

county prosecutor’s office where the allegations were “wholly conclusory”);
Gaymon v. Esposito, No. 11-4170, 2013 WL 4446973, at *15 (dismissing claim
against Essex County where the complaint lacked any facts “whatsoever about
the nature and extent of training” on deadly force including the “existence or
lack thereof” of such a policy); Fairview Ritz Corp. v. Borough of Fairview, No.
09-875, 2013 WL 2946986, at *25 (D.N.J. Nov. 6, 2013) (failure to train not
alleged where complaint “fail[ed] to state facts supporting their

...

‘single-

incident’ theory” such as “specific deficiencies in training programs”).
The plaintiff highlights the need for discovery, and I have given the
consideration some weight as regards the HCPO, which employed Walker. The
defendant I am considering here, however, is the County, which is one more
step removed from Walker’s acts. Even at this early stage, some specificity is
required—particularly when the cause of action is based on an attenuated
causal chain that cannot simply be assumed to exist. See Gaymon, 2013 WL
4446973, at *16 (cautioning that culpability for a Section 1983 claim “is at its
most tenuous where a claim turns on a failure to train”) (quoting Connick, 131
S.Ct. at 1359).
The allegations of the Complaint are too vague and conclusory to support
a failure to train claim against the County. See pp. 3—4, supra. I will dismiss
this claim against the County without prejudice.

3. Negligent hiring and failure to discipline
The Complaint’s allegations regarding negligent hiring and failure to
discipline are identical to those asserted against the HCPO. I have already
found those allegations insufficient. See Section IV.A.b. 1 and b.2, supra. As
against the County, they have even less substance, because the HCPO, not the
County, was directly responsible for hiring and disciplining Walker. The
Complaint states no facts specific to the County regarding the hiring and
discipline of its investigators. Nor does the Complaint suggest that the
specificity requirement should be relaxed because key facts are in the control of

28

the County, as opposed to HCPO. I will dismiss these claims as against the
County without prejudice, for failure to state a claim under the standards of
Iqbal and Twombly. See pp. 3—4, supra.
c. Counts VI, VII & VIII: NJCRA, Wrongful Death Act,
Survivor’s Act
For the reasons stated above, to the extent the NJCRA claims against the
County are based on respondeat superior, they are legally invalid and will be
dismissed with prejudice. To the extent the NJCRA claims are based on Moriell
style liability, they fail to state the necessary supporting facts and are
dismissed without prejudice for failure to state a claim. See Section IV.A.c,
supra.
As discussed above, the Wrongful Death and Survivor’s Act claims as
against the County depend on the viability of the earlier counts. See Section
IV.A.d, supra. As against the County, those earlier counts have all been
dismissed. I therefore likewise dismiss Counts VII and VIII as against the
County, without prejudice.

V.

CONCLUSION
For the foregoing reasons, the government defendants’ motions to

dismiss under rules 12(b)(1) and 12(b)(6) are GRANTED in part and DENIED in
part.
(1) As to the State: The Rule 12(b)(1) motion to dismiss for lack of
jurisdiction is granted, and all claims are dismissed with prejudice.
(2) As to the HCPO:
a.

The Rule 12(b)(1) motion to dismiss for lack of jurisdiction,
considered as to all claims, is decided as follows:
i. All Counts, to the extent they relate to law enforcement
training and supervision, are dismissed with prejudice.
ii. Dismissal is denied to the extent the counts relate to
hiring and discipline.
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b. The Rule 12(b)(6) motion, considered only as to claim
s not
already dismissed on jurisdictional grounds, see 2(a)(ii), supr
a,
is decided as follows:
i. All Counts, to the extent they allege vicarious liability,
are
dismissed with prejudice.
ii. The motion is denied with respect to all Counts, to the
extent they allege HCPO direct liability based on hiring
and discipline.
(3) As to the County:
a. The Rule 12(b)(1) motion is denied.
b. The Rule 12(b)(6) motion is decided as follows:
i. All Counts, to the extent they allege vicarious liability,
are
dismissed with prejudice.
ii. All Counts, to the extent they intend to allege County
liability based on training, supervision, hiring, and
discipline, are dismissed without prejudice.
Here are the claims that remain as to each named defendan
t:
JOSEPH LAMONT WALKER: All claims.
HUDSON COUNTY PROSECUTOR’S OFFICE: Section 1983,
NJCRA,
Wrongful Death Act, and Survivor’s Act claims for negligen
t hiring and
failure to discipline.
COUNTY OF HUDSON: None (all claims dismissed)
STATE OF NEW JERSEY: None (all claims dismissed)
Dated: November 24, 2015

Newark, New Jersey

---5
,//L(c-_V4

/A___
H N. KEVIN MCNULTY
United States District Judge

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