ESTATE OF SAULO DEL ROSARIO et al v. PATERSON POLICE DEPARTMENT et al
Filing
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OPINION. Signed by Judge William J. Martini on 4/17/15. (gh, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ESTATE OF SAULO DEL ROSARIO,
Deceased, by its Administrators Ad
Prosequendum, CARMEN GONZALEZ
(a/k/a CARMEN DOLORES PAYERO
GONZALEZ) and YUNIOR J. REYES
GONZALEZ (a/k/a YUNIOR J. REYES);
CARMEN GONZALEZ, Individually;
YUNIOR J. REYES GONZALEZ,
Individually; STEVEN JAVIER DEL
ROSARIO, a minor by his Guardians,
CARMEN GONZALES AND YUNIOR J.
REYES GONZALES; ELVIO DEL
ROSARIO; DIOMEDES DEL ROSARIO,
Individually; DIOSMENDY DEL ROSARIO,
YANIRIS DEL ROSARIO, by their
Guardian, DIOMEDES DEL ROSARIO;
LEIDY DEL ROSARIO; HONEY DEL
ROSARIO; MARTHA DEL ROSARIO;
CARMELINA DEL ROSARIO, EMELY
DEL ROSARIO, MISAEL DEL ROSARIO,
and MIGUEL DEL ROSARIO by their
Guardian, MARTA DEL ROSARIO,
Plaintiffs,
v.
PATERSON POLICE DEPARTMENT, CITY
OF PATERSON, PATERSON POLICE
OFFICER MARJ KUSH, PATERSON
POLICE OFFICER ANGEL SANDOVAL,
PATERSON POLICE OFFICER ANTHONY
PETRAZZUOLO, PATERSON POLICE
SERGEANT TROY BAILEY, PATERSON
POLICE OFFICER ROBERT CHALLICE,
PATERSON POLICE OFFICER GIUSEPPE
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Civ. No. 14-5167 (WJM)
OPINION
CIARLA, SUPERVISORY OFFICALS I-X
(names presently unknown), OFFICERS I-X
(names presently unknown), ENTITIES I-X
(names presently unknown),
Defendants.
On September 1, 2012, Saulo Del Rosario died after a Paterson police
officer shot him in the head. (Complaint at ¶ 1). This action, brought on behalf
of his estate and by members of his family, followed. Defendants City of
Paterson and Paterson Police Department (“Municipal Defendants”) filed this
Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6), and
individual Defendant Officer Marj Kush submitted a letter to join in the Motion.
For the reasons set forth below, the Motion is granted in part with respect to the
Municipal Defendants and denied with respect to Marj Kush.
I.
BACKGROUND
On July 6, 2012, Saulo Del Rosario was treated at St. Joseph’s Hospital
in Paterson, New Jersey for seizures. Doctors prescribed medication for Saulo
Del Rosario to prevent the seizures. The discharge instructions stated, “Call 911
and return to the ED if your symptoms return or worsen.” On the morning of
September 1, 2012, Saulo’s family members became concerned about his
medical status. The night before, Saulo closed himself in his bedroom. In the
morning, he refused to come out of the bedroom, and the bedroom door was
closed and secured on the inside by an eye-hook latch. (Complaint at ¶¶ 1719).
Saulo’s son, Honey Del Rosario had a friend who spoke English call 911.
The 911 operator dispatched Paterson Police and designated the call as an “EDP”
(emotionally disturbed person). Upon their arrival, the police officers spoke
briefly to Saulo’s sister, Marta Del Rosario, who advised officers that she was
concerned that Saulo would have a convulsion as he did not take his medication
that morning. Police officers attempted to communicate with Saulo through the
door, but he was not responsive. (Complaint at ¶¶ 17-24).
Police Officers began removing the members of Saulo’s immediate and
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extended family from the home. A few officers positioned themselves outside
Saulo’s window, and others prepared to breach the bedroom door. The police
officers who breached the door where holding a Baker Shield, a soft, bendable
shield designed to protect as many as three officers from attack, including
gunshots. (Complaint at ¶¶ 26-31).
The police officers inside the home breached the door by kicking it
opened. Saulo was holding a hammer. Officer Marj Kush ordered Saulo to
drop the hammer. When he did not, Kush fired two shots from behind the Baker
Shield. One shot hit Saulo in the mouth. Saulo was transported to St. Joseph’s
Hospital where he was pronounced dead from a “gunshot wound of head.”
(Complaint at ¶¶ 33-37).
Plaintiffs filed a twelve-count Complaint:
COUNT 1: 42 U.S.C. § 1983 (General Allegation)
COUNT 2: Excessive Use of Force
COUNT 3: Conspiracy
COUNT 4: Negligence
COUNT 5: Excessive Force (against individual police officers)
COUNT 6: Wrongful Death
COUNT 7: Survivorship
COUNT 8: Intentional Infliction of Emotional Distress
COUNT 9: Negligent Infliction of Emotional Distress
COUNT 10: Tortious Conduct of Employees
COUNT 11: Negligent Hiring and Training
COUNT 12: Negligent Supervision
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain
a short and plain statement of the claim showing the pleader is entitled to relief
sufficient to give the defendant fair notice of the claim and the grounds upon
which it rests. In re Riddell Concussion Reduction Litig., Civ. No. 13-7585,
2015 WL 224429, at *7 (D.N.J. Jan. 15, 2015) (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a
complaint, in whole or in part, if the plaintiff fails to state a claim upon which
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relief can be granted. 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 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 Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts
Inc., 140 F.3d 478, 483 (3d Cir. 1998) (citing Warth v. Seldin, 422 U.S. 490,
501 (1975)).
Although a complaint need not contain detailed factual allegations, “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 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). “[D]etermining whether a complaint states a plausible
claim is context-specific, requiring the reviewing court to draw on its
experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 663-64 (2009).
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.” Iqbal, 556 U.S. at 678 (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.” Id. at 678.
Courts have long held that if a complaint is vulnerable to 12(b)(6)
dismissal, a district court must permit a curative amendment, unless an
amendment would be inequitable or futile. Grayson v. Mayview State Hosp.,
293 F.3d 103, 108 (3d Cir. 2002) (citing Shane v. Fauver, 213 F.3d 113, 116 (3d
Cir. 2000)).
III.
DISCUSSION
The moving papers argue that the following causes of action should be
dismissed against the Municipal Defendants:
A. Section 1983 Cause of Action – Count One
The Municipal Defendants argue that the Complaint failed to allege a
policy, practice, or custom of civil rights violation, which is necessary to sustain
a Section 1983 action against a municipality. The argument is persuasive.
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Under the seminal case of Monell v. Dep’t of Social Srvs., 436 U.S. 658 (1978),
a municipality may be held liable for a constitutional violation committed by
its employee when such violation flows from a policy, practice, or custom of
such violations. Here the Complaint plainly fails to allege any policy, practice,
or custom.1
B. Conspiracy – Count Three
Count three of the Complaint alleges that all of the Defendants conspired
to “delay and impair the investigation.” Under state law, a civil conspiracy is
a combination of two or more persons acting in concert to commit an unlawful
act, or to commit a lawful act by unlawful means, the principal element of
which is an agreement between the parties to inflict a wrong against or injury
upon another, and an overt act that results in damage. Banco Popular N. Am.
v. Gandi, 184 N.J. 161, 177 (2005). There are also several federal statutes
creating causes of action for conspiracies to violate civil rights.
The Municipal Defendants argue, and the Plaintiffs do not dispute, that
the Complaint fails to specify the legal nature of the conspiracy, whether it is a
state law conspiracy action or a federal action for conspiracy to violate civil
rights. Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the facts. See Kaplan v. Madan Plastics, Inc., Civ. No. 91-5968,
1992 WL 13194, at *3 (E.D. Pa. Jan. 24, 1992). “The crucial question in a
motion to dismiss based on lack of specificity is whether ‘sufficient facts are
pleaded to determine that the complaint is not frivolous, and to provide
defendants with adequate notice to frame an answer.’” Id. (quoting Frazier v.
Southeastern Pennsylvania Trans. Auth., 785 F.2d 65, 68 (3d Cir. 1986)).
Here, the facts alleged make it plausible that a conspiracy existed.
However, the selection of a legal theory will have an impact on the Defendants’
ability to properly respond to the Complaint because a federal cause of action
for conspiracy to violate civil rights has its own special pleading requirements
and defenses. See, e.g., Schlichten v. Cnty. of Northampton, 279 F. App’x 176,
179 (3d Cir. 2008) (noting that a federal conspiracy charge must be plead with
specificity).
Where a cause of action is sufficiently intelligible for the district court to
make out one or more potentially viable legal theories on which the claimant
The Municipal Defendants also state that Count Five should be dismissed for a lack of policy, practice, or custom.
However, Count Five only applies to the police officer defendants. The Motion is therefore denied as moot with
respect to this request.
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might proceed; but at the same time, too vague or ambiguous for the opposing
party to properly respond to it, Federal Rule of Civil Procedure 12(e) permits
the Court to demand a more definite statement. See Pelman ex rel. Pelman v.
McDonald’s Corp., 396 F. Supp. 2d 439, 443 (S.D.N.Y. 2005). The Court will
demand a more definite statement of the alleged conspiracy’s legal theory and
factual basis.
C. Negligence – Count Four
To state a negligence claim, a plaintiff must establish: “(1) [a] duty of
care, (2) [a] breach of [that] duty, (3) proximate cause, and (4) actual damages.”
Bullock v. Ancora Psychiatric Hosp., Civ. No. 10-1412, 2011 WL 3651352, at
*10 (D.N.J. Aug. 18, 2011) (alterations in original) (citing Polzo v. Cnty. of
Essex, 196 N.J. 569, 584 (2008)). Plaintiffs plausibly allege that firing a gun
into Saulo’s head was a breach of Marj Kush’s duty of care, resulting in Saulo’s
death.
The claim is also plausible against the Municipal Defendants. The New
Jersey Tort Claims Act generally permits respondeat superior liability. Rocco
v. New Jersey Transit Rail Operations, Inc., 330 N.J. Super. 320, 335 (App.
Div. 2000); N.J.S.A. 59:2-2 (“A public entity is liable for injury proximately
caused by an act or omission of a public employee”). The Motion is therefore
denied with respect to Count Four.
D. Wrongful Death – Count Six
New Jersey’s Wrongful Death Act creates a cause of action against a
party whose negligence or wrongful act causes the death of another. See
N.J.S.A. 2A:31-1. The Municipal Defendants vaguely argue that this cause of
action should be dismissed for failure to meet the pleading standard. The
arguments are not persuasive. The Complaint adequately puts Defendants on
notice that they are being accused of negligent or intentional acts that resulted
in Saulo’s death.
E. Survivorship – Count Seven
N.J.S.A. 2A:15-3 authorizes the administrator of a decedent’s estate to
bring a civil survivorship action. “The damages recoverable are those that
decedent would have had if he had survived.” Barbaria v. Sayreville Twp., 191
N.J. Super. 395, 401 (App. Div. 1983). The survivorship action permits the
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administrator of the estate to recover “all reasonable funeral and burial
expenses in addition to damages accrued during the lifetime of the deceased”
for the negligent or wrongful act of another that resulted in fatal injuries. See
N.J.S.A. 2A:15-3. The Complaint alleges that Saulo Del Rosario died from
injuries caused by Defendants’ negligence. The caption of the Complaint notes
that Carmen Gonzalez and Yunior Reyes Gonzalez are bringing this action as
Administrators Ad Prosequendum for Saulo Del Rosario’s estate. The
Municipal Defendants’ vague argument that the cause of action fails to meet the
plausibility threshold of Ashcroft v. Iqbal, 556 U.S. 662 (2009) is undeveloped
and not persuasive. Therefore, this Count of the Complaint survives the Motion
to Dismiss.
F. Intentional Infliction of Emotional Distress – Count Eight
Plaintiffs concede that there is no cause of action for intentional infliction
of emotional distress against the Municipal Defendants. (Opposition Brief at
13). However, a claim has been stated against Marj Kush.
To state a claim for intentional infliction of emotional distress (“IIED”),
a plaintiff must allege: (1) the defendant acted intentionally or recklessly, intending both to do the act and to produce emotional distress or acting recklessly
in deliberate disregard of a high degree of probability that emotional distress
will follow; (2) the defendant’s conduct was extreme and outrageous, going
beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community; (3) the defendant’s conduct was a
proximate cause of the plaintiff’s emotional distress; and (4) the emotional distress suffered by the plaintiff is so severe that no reasonable person could be
expected to endure it. Ingraham v. Ortho-McNeil Pharm., 422 N.J. Super. 12,
19-20 (App. Div. 2011) (citations and internal quotations omitted). In this case,
the Complaint plausibly alleges each element of an IIED claim against Marj
Kush.
G. Negligent Infliction of Emotional Distress – Count Nine
A cause of action for the negligent infliction of emotional distress
(“NIED”) requires proof of the following elements: (1) the death or serious
physical injury of another caused by defendant’s negligence; (2) a marital or
intimate, familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting
severe emotional distress. Abouzaid v. Mansard Gardens Associates, LLC, 207
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N.J. 67, 78 (2011). The Municipal Defendants argue vaguely and unpersuasively that the pleadings are deficient with regard to this cause of action. The
Complaint does plausibly allege all the elements for a NIED claim. All the
Plaintiffs allege that they were in or around the home when the police killed
Saulo, allegedly causing emotional distress to all Plaintiffs.
H. “Tortious Conduct of Employees” – Count Ten
In Count Ten of the Complaint, the Plaintiffs allege that the Municipal
Defendants are liable for the tortious conduct of the individual Defendants. As
discussed above, the New Jersey Tort Claims Act does permit respondeat superior liability. Rocco v. New Jersey Transit Rail Operations, Inc., 330 N.J.
Super. 320, 338 (App. Div. 2000); N.J.S.A. 59:2-2(a) (“A public entity is liable
for injury proximately caused by an act or omission of a public employee”).
The Moving Defendants’ arguments for the dismissal of Count Ten are vague
and unpersuasive.
I. Negligent Hiring, Training, and Supervision – Counts Eleven and
Twelve
In Counts Eleven and Twelve, the Complaint alleges that Municipal
Defendants are liable for negligently hiring, training, and supervising the
individual defendants. The Municipal Defendants argue that the allegations are
too vague to meet the plausibility standard under Iqbal, 556 U.S. 662 (2009).
The New Jersey Appellate Division has held that a cause of action for
negligent training and supervision can exist under the New Jersey Tort Claims
Act where a police department knew or should have known of a dangerous
propensity in a police officer. See Denis v. City of Newark, 307 N.J. Super.
304, 314 (App. Div. 1998). Counts Eleven and Twelve do allege that the
Municipal Defendants were “on notice” of “their failure to control their
employees, had notice of any prior violations, and failed to properly supervise
their employees.” (Complaint at ¶ 89). This pleading suffices to put the
Municipal Defendants on notice of the allegations against them.
IV.
CONCLUSION
For the reasons set forth above, the Municipal Defendants’ Motion to
Dismiss is granted in part. Counts One (42 U.S.C. § 1983) and Eight (IIED) of
the Complaint are dismissed against the Municipal Defendants. Dismissal is
without prejudice as to Count One and with prejudice as to Count Eight. The
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Motion is denied in its entirety with respect to Marj Kush. Plaintiffs are ordered
to submit a more complete statement of their conspiracy cause of action.
Plaintiffs are ordered to file an Amended Complaint within 30 days of the Order
following this Opinion.
/s/ William J. Martini
______________________________
WILLIAM J. MARTINI, U.S.D.J.
Date: April 16, 2015
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