Graham v. Rawley et al

Filing 66

OPINION. Signed by Judge John Michael Vazquez on 12/29/2016. (ld, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JESSICA C. GRAHAM, Individually &
oib!o J.P.S.R.,
Civil Action No. 14-6743

Plaintiffs,

OPINION

V.

CHARLES T. RAWLEY, eta!,
Defendants.

John Michael Vazgucz, U.S.D.J.
This matter comes before the Court by way of four motions to dismiss filed by multiple
Defendants in this matter.

D.E. 32, 41, 51, 54.

Plaintiff Jessica C. Graham did not oppose

Defendants’ motions. The Court reviewed Defendants’ submissions in support and considered the
motions without oral argument pursuant to Fed. R. Civ. P. 78 and L. Civ. R. 78.1(b). For the
reasons stated below, the motions are GRANTED.
1.

BACKGROUND
Plaintiff filed her original pro se complaint on or about October 3, 2014 in the Eastern

District of New York.

See Transfer Order, D.E. 6.

The complaint alleged that Plaintiffs

constitutional rights were violated (I) in connection to a child custody dispute involving her son
J.P.S.R.. and (2) when she was involuntarily brought to and detained at Jersey City Medical Center
(“JCMC”). fri. at 2-3. Because Plaintiff requested to proceed in farina pauperis. Judge Chen
screened Plaintiffs complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B). Judge Chen dismissed

Plaintiffs claims regarding the child custody dispute because the Court lacked subject matter

jurisdiction and transferred the remainder of the claims to this district because the events occurred
in Jersey City, New Jersey. Id. at 4-6.
After the case was transferred, Plaintiff filed a second application to proceed in fonna
paziperis. D.E. 8. As a result, Judge ArLeo conducted a Section 19l5(e)(2)(B) screening of the

transferred claims, which involved the JCMC incident and asserted claims against JCMC
employees, Defendant Peterson, and John Doe Officers. D.E. 12. Judge Arleo granted Plaintiffs
application to proceed

hi

fotmapauperis but dismissed Plaintiffs complaint for failing to state a

claim upon which relief can be granted. 1-1. at 4-6. Judge Arleo concluded that Plaintiff could not
assert claims under multiple federal criminal and civil statutes that were listed in the complaint,
and that Plaintiff failed to assert any federal causes of action against the Defendants. Id. Judge
Arleo, however, granted Plaintiff leave to file an amended complaint. Id. at 6-7.
Plaintiff filed an amended complaint (the “FAC”) on February 17, 2015.

The FAC

included many of the same facts and legal theories as the original complaint and asserted claims
against JCMC. multiple JCMC staff members, the Elizabeth Police Department (“EPD”). Mr.
Rawley and Ms. Herrera.’ D.E. 14. Specifically, the FAC (1) addressed Plaintiffs involuntary
hospitalization at JCMC (Id.

¶ 2); and (2) contained allegations involving an incident that occurred

on February 15,2015 with Mr. Rawley and two EPD police officers (id.

¶ 9).

Judge Arleo screened

the FAC because Plaintiff was still proceeding in fornia pauperis and dismissed the FAC in its
entirety because Plaintiff failed to assert any federal claims against Defendants. D.E. 15. Judge
Arleo granted Plaintiff Leave to file a second amended complaint, only as to the EPD, and only as
to events that occurred after October 10, 2014. Judge Arleo dismissed the remainder of the claims

Mr. Rawley is Plaintiffs ex-husband and Ms. Herrera is allegedly married to Mr. Rawley. TAC
at 3.
2

and Defendants with prejudice because she determined that providing Plaintiff with an opportunity
to cure would be thtile. Id. at 8-9.
Plaintiff filed a second amended complaint (the “SAC”) on June 16, 2015 against the EPD,
the City of Elizabeth, and EPD Police Officers Shalen. Vazquez, Hilongos, Wassel, and Arena.
D.E. 17. The SAC was dismissed on October 6, 2015, after Judge Arleo learned that Plaintiff’s
application to proceed

in forum pauper/s

was denied in another case because she had a “substantial

surplus income per month.” D.E. 18. Judge Arleo determined that Plaintiff was no longer indigent,
therefore she did not qualify for in JO nna pauper/s status. Judge Arleo, however, provided Plaintiff
thirty days to refile her amended complaint with the necessary filing fee. Id.
Plaintiff paid the filing fee on November 6, 2015, and filed a third amended complaint (the
“TAC”) on January 14, 2016.2 D.E. 23. Much like Plaintiffs prior pleadings, the TAC appears
to assert claims pursuant to 42 U.S.C.

§ 1983, the Americans with Disabilities Act (the “ADA”),

and various federal statutes. However, while the TAC does assert facts regarding the February 15
incident, it also addresses the JCMC incident, despite the fact that Judge Arleo dismissed
Plaintiff’s claims as to the incident with prejudice. The TAC also includes the following new
factual allegations (1) that Rawley and Herrera took J.P.S.R. out of the country; (2) questions
regarding Herrera’s immigration status; (3) that multiple individuals and agencies failed to
investigate Plaintiffs complaints regarding Rawley and Kerera; (4) allegations as to individual
police officer’s improper use of force and the improper arrest of Plaintiff; and (5) the issuance of
arrest warrants and judicial orders based on false information. The TAC also includes J.P.S.R. as

2

Before filing the TAC, Plaintiff sought to consolidate this matter with two other cases. D.E. 19.
Plaintiffs request to consolidate was denied because one of the cases was closed after Plaintiff
voluntarily’ withdrew the complaint and the other was administratively terminated after Plaintiffs
request to proceed in forum pauper/s was denied. D.E. 20.
3

an additional Plaintiff and asserts claims against numerous new defendants, including three New
Jersey state judges and judicial officers, the FBI, the Jersey City Police Department, the Union
County Sheriffs Office, and individual Union County and Elizabeth police officers. D.E. 23.
After being served with the TAC, the Union County Sheriffs Department and Union
Sheriffs Officers McCarthy, Genova and DeSanto answered the TAC. D.E. 30. The following
parties filed motions to dismiss: (I) the City of Elizabeth, the EPD, the Municipal Court of the
City of Elizabeth, Carmela Mozza, Carl Marshall, Victor Arena, Joseph Wassel, Ralph Vazquez,
Sergeants Moloney and Hilongos, Lieutenant Rodriguez, and Rense Schalen (collectively “the
Elizabeth Defendants”) (D.E. 32); (2) the City of Jersey City, the Jersey City Police Department,
and Officer Eric C. Peterson (collectively the “Jersey City Defendants”) (D.E. 41); (3) Judges
Candido Rodriguez, James Wilson, and John Hudak, James S. Agro, the Union County
Prosecutor’s Office, the State of New Jersey Department of Children and Families (the “DCF”),
the State of New Jersey Judiciary

—

Union Vicinage, the New Jersey State Police, and Agnes

Ekama (collectively the “State Defendants”) (D.E. 51); and (4) the FBI (D.E. 54). As a whole, the
parties moving for dismissal argue that the TAC should be dismissed pursuant to Federal Rule of
Civil Procedure 12(b)(6) because Plaintiff fails to state any federal claims upon which relief can
be granted. The State Defendants and the FBI also contend that they are immune from this lawsuit,
and therefore the claims asserted against them should be dismissed pursuant to Federal Rule of
Civil Procedure 12(b)(l).
After the Elizabeth Defendants filed their motion to dismiss, Plaintiff filed a letter
requesting that the matter not be decided on the papers. D.E. 34. Plaintiff, however, did not
substantively oppose any of the pending motions.
II.

LEGAL STANDARD

4

A motion to dismiss based upon sovereign immunity is properly brought pursuant to Rule
12(b)(l) because sovereign immunity implicates the Court’s subject-matter jurisdiction.
Blanciak

i’.

See

Allegheny Ludhun Corp.. 77 F.3d 690, 693 n.2 (3d Cir. 1996) (citing Pennhurst Stare

Sc?:. & Hosp.

i’.

Ha!dernzan, 465 U.S. 89, 98-100 (1984)) (“[T]he Eleventh Amendment is a

jurisdictional bar which deprives federal courts of subject matter jurisdiction.”). In deciding a
Rule 12(b)(l) motion to dismiss, a court must first detennine whether the party presents a facial
or factual attack because that distinction determines how the pleading is reviewed. See Mortensen
i’.

First Fed. Sav & Loan Ass

‘ii,

549 F.2d 884, 891 (3d Cir. 1977). “A facial attack concerns an

alleged pleading deficiency whereas a factual attack concerns the actual failure of a plaintiffs
claims to comport factually with the jurisdictional prerequisites.” Young v. United States, 152 F.
Supp. 3d 337, 345 (D.N.J. 2015). Here, the State Defendants and the FBI assert the defense of
sovereign immunity through the pleadings alone, thereby raising a facial attack. See Perez v. ATeu’
Jersey, No. M-4610, 2015 WL 4394229, at *3 (D.N.J. July 15, 2015) (“[T]he State Defendants’
motion asserts the defense of sovereign immunity based on the facts as pleaded in the Second
Amended Complaint and is thus a facial attack.”). Accordingly, “the court must only consider the
alLegations of the complaint and documents referenced therein

.

.

.

in the light most favorable to

the plaintiff” GoiddElecs, Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).
For a complaint to survive dismissal under Rule I 2(b)(6), it must contain sufficient factual
matter to state a claim that is plausible on its face. Ashcroft

i’.

Jqbal, 556 U.S. 662, 678 (2009)

(quoting Bell At!. Corp. v. Tuv,nblv, 550 U.S. 544, 570 (2007)). A claim is facially plausible
“when the plaintiff’ pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id.

Further, a plaintiff must “allege

sufficient facts to raise a reasonable expectation that discovery will uncover proof of her claims.”

5

Connally

Lane Cons!. Corp., 809 F.3d 780, 789 (3d Cir. 2016). In evaluating the sufficiency of

a complaint, district courts must separate the factual and legal elements.

Fouler r. UFMC

Shadvsidc. 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements of the elements of a claim are
legal conclusions, and therefore, not entitled to a presumption of truth. Bunch

i’.

MiIbei-g Factors,

Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however, “must accept all of the complaint’s
well-pleaded facts as true.” Fouler, 578 F.3d at 210.
In addition, because Plaintiff is proceeding pro se, the Court construes the pleadings
liberally and holds them to a less stringent standard than those filed by attorneys. Haines v. Kenien,
404 U.S. 519, 520 (1972).

“The Court need not, however, credit a p,o sc plaintiffs ‘bald

assertions’ or ‘legal conclusions.’”

D ‘Agostino

i’.

CECOM RDEC, No. 10-4558, 2010 WL

3719623, at *1 (D.N.J. Sept. 14, 2010) (quoting Morse v. Lower Merion Sc/i. Dist., 132 F.3d 902,
906 (3d Cir. 1997)).
III.

ANALYSIS
A.

NEW PARTIES TO THE MATTER

Through the TAC, Plaintiff seeks to include J.P.S.R. as a plaintiff Federal Rule of Civil
Procedure 20 governs the joinder of parties. “Joinder under Rule 20 is discretionary and when the
District Court exercises that discretion, it ‘must provide a reasoned analysis that comports with the
requirements of the Rule.” Jslaarn

i’.

Greco, No. 12-7022, 2014 WL 672985, at *3 (D.N.J. Feb.

21, 2014) (quoting Hogan v. Rogers, 570 F.3d 146, 157 (3d Cir. 2009)). In addition, Rule 21
provides that “on motion or on its own, the court may.

.

.

on just terms, add or drop a party.” Fed.

R. Civ. P. 21. Pursuant to Rule 21, “[w]here a plaintiff fails to satisfy the conditions of permissive
joinder under Rule 20(a), a court may ‘grant severance or dismissal to the improper party if it will
not prejudice any substantial right’ [in orderj to remedy improperjoinder.” Tredo v. Ocu’en Loan

6

Servicing, LLC, No. 14-3013, 2014 WL 5092741, at *3 (D.N.J. Oct. 10, 2014) (quoting Saboisky
v. Th,dzanoski, 457 F.2d 1245, 1249 (3d Cir. 1972)) (dismissing improperly joined plaintiffs
pursuant to Rule 21).
In this instance, Plaintiff is not permitted to join J.P.S.R. as a plaintiff. Rule 20(a) provides
that plaintiffs may be joined if: “(A) they assert any right to relief jointly. severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise
in the action.” Although many factual allegations in the TAC relate to J.P.S.R.’s care and custody,
the TAC does not appear to seek remedies for harm that J.P.S.R. allegedly suffered. Consequently,
J.P.S.R. is misjoined as a party to this action and he will be dismissed.
The TAC also includes many new defendants in this matter despite clear directions from
Judge Arleo that Plaintiff was only permitted to file an amended complaint as to the EPD. D.E.
15 at 9-10. Rule 20(a)(2) provides that defendants may be joined in an action if: “(A) any right to
relief is asserted against them jointly severally, or in the alternative with respect to or arising out
of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question
of law or fact common to all defendants will arise in the action.” Rather than addressing whether
the new defendants have been improperly joined, the Court will address the substantive arguments
raised in each parties’ motion to dismiss.
B.

CLAIMS PREMISED ON FEDERAL STATUTES

Judges Chen and Arleo previously determined that Plaintiff could not bring claims under
multiple federal statutes because they did not create private causes of action. D.E. 6 at I ni. D.E.
12 at 5.

The TAC lists twelve new, largely criminal, federal statutes under which Plaintiff

apparently attempts to bring claims against Defendants. But Plaintiff cannot bring claims pursuant

7

to any of these statutes because none of the statutes create a private cause of action. Gross
Cormack. No. 134152. 2013 W[ 6624051, at *2 (D.N.J. Dcc. 16, 2013) (concluding that claims
predicated on four federal criminal statutes where “none of [the statutes] contain language that
explicitly confers a private cause of action” did not satisfy pleading standards). Consequently, any
claim that is premised on these federal statutes3 is dismissed as to the FBL, the State Defendants,
the Jersey City Defendants, and the Elizabeth Defendants.
C.

CLAIMS UNDER THE ADA

Plaintiff also appears to assert claims under the ADA. Judge Arleo, however, already
concluded that Plaintiff failed to plead ADA claims. Judge Arleo determined, in part. that Plaintiff
failed to allege that any Defendant intentionally discriminated against her. D.E. 12 at 5-6, D.E. IS
at 7-8. The ADA claims in the TAC fail for the same reasons-- Plaintiff does not plead that she
was discriminated against, in any respect or by any of the moving Defendants, because of a
disability. As a result, the ADA claims will be dismissed as to the FBI, the State Defendants, the
Jersey City Defendants, and the Elizabeth Defendants.
D.

THE FBI’S MOTION TO DISMISS

The FRI argues that it should be dismissed from the matter because it is immune from suit.
FBI Br. at 2-3.

“Without a waiver of sovereign immunity, a court is without subject matter

jurisdiction over claims against federal agencies or officials in their official capacities.” Treasurer

The TAC references the following federal criminal statutes 8 U.S.C. § 1325(c) (marriage fraud),
18 U.S.C. § 47 (use of aircraft or motor vehicles to hunt certain wild horses or burros and pollution
of watering holes), 18 U.S.C. § 287 (making false claims to the federal government), 18 U.S.C. §
1028 (fraud). 18 U.S.C. § 1204 (international parental kidnapping), 18 U.S.C. § 1546 (visa fraud),
18 U.S.C. § 1621 (perjury).42 U.S.C. § 121 (repealed),and42 U.S.C. §408(social secudtyfraud).
The TAC also references the following non-criminal statutes: 21 U.S.C. § 1706 (establishing the
“High Intensity Drug Trafficking Areas Program”) and 42 U.S.C. § 13031 (setting child abuse
reporting requirements), and 20 U.S.C. § 33 (repealed).
8

a/N.J v. US. Dept of Treasmy, 684 F.3d 382, 395 (3d Cir. 2012) (citing United States

i’.

Mitchell,

445 U.S. 535, 538 (1980)). A waiver of sovereign immunity “must be unequivocally expressed in

the statuton’ text.” Lane

.

Pena, 518 U.S. 187, 192 (1996). Moreover, a waiver of immunity “is

construed strictly in favor of the sovereign.” Clinton Ctv. Comm ‘us
(3d Cir. 1997) (quoting United States

i’.

i’.

E.P.A., 116 F.3d 1018, 1021

Von1ic Village. Inc.. 503 U.S. 30, 33 (1992)). Here,

Plaintiff fails to establish that Congress expressly waived sovereign immunity as to the Section
1983 claims that she asserts against the FBI. See, e.g., Mierzwa v. United States, 282 F. App’x
973, 976-77 (3d Cir. 2008) (“Neither the United States nor its agencies have waived sovereign
immunity for constitutional claims.”). In addition, Section 1983 permits individuals to bring suit
against persons who act under color of state law. See 42 U.S.C.

§ 1983. By its express terms,

however, “Section 1983 does not apply to the federal government or its officers in their official
capacities.” Soobrokoi v. Holder. No. 10-6260, 2011 WL 2293853, at *6 (D.N.J. June 7,2011).
The FBI, therefore, is immune from this suit and is dismissed as a party.
E.

THE STATE DEFENDANTS’ MOTION TO DISMISS

The State Defendants argue that the TAC must be dismissed as to them because it is barred
by the Eleventh Amendment.

State Defs’ Br. at 7.

The Eleventh Amendment protects

unconsenting States from suit in a federal court by one of its own citizens. Blanciak i’. Allegheny
Lztdlum Corp., 77 F.3d 690, 694 (3d Cir. 1996) (citing U.S. Const. amend. Xl). It is clear that
states are immune from Section 1983 claims; states are not “persons” within the meaning of
Section 1983, and cannot be held liable under Section 1983. Blanciak, 77 F.3d at 697 (citing Will
v. Mich. Dept. of State Police, 491 U.S. 58,66(1989)). Eleventh Amendment immunity extends
to state departments and agencies that are arms of the state. Bowers v. Nat? Collegiate Athletic
Ass ½. 475 F.3d 524, 545 (3d Cir. 2007) (citing Regents of the Univ. of Ca. v. Doe, 519 U.S. 425,

9

429 (1997); Pennhurst State Sd:. & Hosp., 465 U.S. at 101)). The DCF, the State of New Jersey
Judiciary

Union Vicinage, and the New Jersey State Police are all arms of the state.

--

Consequently, they are entitled to immunity under the Eleventh Amendment for the Section 1983
claims asserted in the TAC. See Dongon v. Banar. 363 F. App’x 153, 156 (3d Cir. 2010) (“the
state courts

.

.

.

are entitled to immunity lLnder the Eleventh Amendment because they are part of

thejudicial branch of the State ofNew Jersey, and therefore considered ‘arms’ of the state” (citing

Johnson

i’.

NeirJerscv. 869 F. Supp. 289, 296-98 (D.N.J. 1994))); Simmennan

i.

Corino, 804 F.

Supp. 644. 650 (D.N.J. 1992) (concluding that state police was an arm of the state and entitled to
Eleventh Amendment immunity); Rich

i’.

Neu’Jerscv, No. M-2075, 2015 WL 2226029, at *73

(D.NJ. May 12, 2015) (stating that Section 1983 claims asserted against the DCF were barred by
sovereign immunity).
The Union County Prosecutor’s Office is also entitled to sovereign immunity. A suit may
be barred by the Eleventh Amendment “even though the state is not named a party to the action,

as long as the state is the real party in interest.” Carter

i’.

City ofPhiladephia, 181 F.3d 339, 347

(3d Cir. 1999) (quoting Fitchik i’. N.J. Transit Rail Operations, 873 F.2d 655, 658 (3d Cir. 1989)).
The Third Circuit has determined that county prosecutors act as agents of the state when they
“execute their sworn duties to enforce the law by making use of all the tools lawfully available to
them to combat crime.” Coleman

i

Kave, 87 F.3d 1491, 1499 (3d Cir. 1996). When county

prosecutor offices engage in this law enforcement function, they act “as an arm of the state and
[are] entitled to immunity under the Eleventh Amendment.” Beightier v. Office of/he Essex Ctv.
Prosecutor, 342 F. App’x 829, 832 (3d Cir. 2009). In this instance. Plaintiff’s claims against the
Union County Prosecutor’s Office are based on its alleged failure to investigate Plaintiffs
complaints. TAC at 10. The decision as to whether to pursue and investigate citizen complaints

10

is a quintessential example of a “law enforcement function” that entitles the office to immunity.
Consequently, the Union County Prosecutor’s Oftice is also immune from suit and is dismissed as
a party to this matter.
The Eleventh Amendment does not bar suits against individuals in all respects. However,
Plaintiffs claims against Defendants Rodriguez, Wilson, and Hudak, the New Jersey state judges,
are barred by the doctrine ofjudicial immunity. “A judicial officer in the performance of his duties
has absolute immunity from suit and will not be liable for his judicial acts.” Capogrosso v.
Supreme Court of New Jersey, 588 F.3d 180, 184 (3d Cir. 2009) (quoting Azithitho

i’.

Royal, 443

F.3d 302, 303 (3d Cir. 2006)). “A judge will not be deprived of immunity because the action he
took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject
to liability only when he has acted ‘in the clear absence of all jurisdiction.” Id. (quoting Stump v.
Sparkman, 435 U.S. 349, 356-57 (1978)). Judicial immunity protects judges from Section 1983

suits. Brow,i
i’.

Donio, No. 14-5697,2014 WL 5089579, at *2 (D.N.J. Oct. 9,2014) (citing Pierson

Ray, 386 U.S. 547, 553-55 (1997)). The allegations in the TAC that relate to the state judges

involve issuing orders and ruling from the bench; acts that are clearly judicial acts. Moreover,
Plaintiff provides no indication that any of the state judges acted in clear absence of their
jurisdiction. Consequently, the statejudges are dismissed from this suit because they are immune.
Finally, the Section 1983 claims against Agro and Ekama will be dismissed pursuant to the
doctrine of quasi-judicial immunity. Courts have extended quasi-judicial immunity to court clerks
who are alleged to have acted incorrectly or improperly in similar circumstances, namely in
carrying out their job as a court clerk. See, e.g., Wicks v. Lycoming County, 456 F. App’x 112,
115 (3d Cir. 2012) (“In transferring the case, [the county court administrator] was simply carrying
out part of his official duties as court administrator, and thus he is shielded from liability by the

11

doctrine of quasi-judicial immunity.”); Bartee

‘i’.

Ri/told, No. 16-0805, 2016 WL 4744137, at *2

(D.N.J. Sept. 12, 2016) (dismissing claims against court clerk on grounds of immunity). Agro and
Ekama’s alleged wrongfifl conduct, signing orders, falls squarely within their role as court
administrators. Consequently. they are also entitled to immunity and are dismissed from this
matter.
F.

THE JERSEY CITY DEFENDANTS’ MOTION

The Jersey City Defendants argue that the claims asserted against them should be dismissed
for failure to state a claim. Jersey City Br. at 8-12.
First, the Jersey City Police Department is dismissed as a party because a municipal police
department is not a separate entity from the municipality, and therefore is not an appropriate
defendant in a Section 1983 case. See Adams v. Civ of camden, 461 F. Supp. 2d 263, 266 (D.N.J.
2006). In addition, the claims against the City of Jersey City will be dismissed because Plaintiff
fails to identify a policy or custom of Jersey City that resulted in an injury. A municipality cannot
be held vicariously liable under Section 1983 for the actions of its agents. Instead, a municipality
will only be liable if”a municipal ‘policy’ or ‘custom’.
(quoting Rd. of Civ. Comm

‘is of

.

.

caused the plaintiff’s injury.” Id. at 267

Thyan Civ., OkL v. Bmw,,, 520 U.S. 397, 403-04 (1997)).

Plaintiffs sole allegation as to Jersey City, that officers improperly detained and transferred
Plaintiff to JCMC, falls far short of plausibly alleging a policy or custom that resulted in an injury
to Plaintiff. See, e.g., McGann

i’.

Collingswood Police Dept., No. 10-3458, 2012 WL 983686, at

*8 (D.N.J. Mar. 22, 2012) (concluding that allegations as to one encounter with a police officer
did not establish any policy or custom that would support a Section 1983 claim). Consequently,
the claims against Jersey City are dismissed pursuant to Rule 12(b)(6).

12

Next, Plaintiff cannot assert claims against Officer Peterson in the TAG because Judge
Arleo previously dismissed claims in the SAC that related to Officer Peterson and the JCMC
incident with prejudice. Judge Arleo concluded that any amendment would be futile because
Plaintiff had been given an opportunity to cure the pleading deficiencies but failed to heed the
Court’s advice as to how to fix those deficiencies in subsequent pleadings. D.E. 15 at 8. A
dismissal with prejudice operates as an adjudication on the merits and bars a later action against
the same defendants or their privies. Gambocz v. Yelencsics, 46$ F.2d 837, 840 (3d Cir. 1972).
Because the claims asserted against Officer Peterson here are virtually identical to Plaintiffs prior
pleadings, they cannot be asserted in any amended pleading.
G.

THE ELIZABETH DEFENDANTS’ MOTION TO DISMISS

As explained above, see supra at Section F, Plaintiffs claims against the EPD are
dismissed because a municipal police department is not a proper party for a Section 1983 claim.
See Adams, 461 F. Supp. 2d at 266.

Similarly, the claims against the City of Elizabeth are

dismissed because, as with the claims against the City of Jersey City, Plaintiff fails to plausibly
allege facts that establish a municipal policy or custom that caused Plaintiff injuries. Id. at 267.
While the TAC does mention the City of Elizabeth on numerous occasions, there are no direct
factual allegations as to Elizabeth. See, e.g., McGann, 2012 WL 983686, at *8.
Next, the TAG names Sergeant Hilongos and the Municipal Court of the City of Elizabeth,
but fails to attribute any specific facts to either of these Defendants. In bringing a Section 1983
claim, a plaintiff must allege the nature of the unconstitutional conduct, and the time, place, and
persons responsible. Eiancho

i

Fisher, 423 F.3d 347. 353 (3d Cir. 2005) (citing Bovkins v.

Anibuidge Area Sc/i. Dist., 621 F.2d 75, 80 (3d Cir. 1980)). Because the TAC fails to attribute
specific incidents or facts to Hilongos and the Municipal Court, Plaintiffs claims against these

13

Defendants fail and are dismissed. Similarly, the Court will dismiss the Section 1983 claims
against Defendant Wassel because Plaintiff does not attribute any wrongdoing to him. Although
Wassell is included in a number of Plaintiff’s claims, the only factual allegations that involve him
are that he responded to 911 calls from Plaintiff and reviewed a custody order. This conduct does
not amount to any constitutional violation.
Next, Plaintiff alleges that Mozza and Marshall issued fake warrants for Plaintiffs arrest.
TAC at 13. The claims against Judge Marshall will be dismissed pursuant to the doctrine of
judicial immunity as there are no facts indicating that Judge Marshall acted with a clear absence
of jurisdiction. See, supra (‘apogrosso. 58$ F.3d at 184 (3d Cir. 2009) (quoting Anthuko. 443
F.3d at 303). Similarly, the claims against Mozza will be dismissed pursuant to the doctrine of
quasi-judicial immunity. It appears to the Court that Mozza and Marshall engaged in the same
conduct here

--

issuing warrants.

Consequently, at least in this capacity, Mozza exercised

discretionaryjudgment and is therefore entitled to quasi-judicial immunity. See, supra 11icks, 456
F. App’x at 115 (“In transferring the case, [the county court administrator] was simply carrying
out part of his official duties as court administrator, and thus he is shielded from liability by the
doctrine of quasi-judicial immunity.”); Bartee, 2016 WL 4744137, at *2 (dismissing claims against
court clerk on grounds of immunity). As a result, the claims against Mozza are also dismissed.
That leaves the Section 1983 claims against the individual EPD police officers. Plaintiff
alleges that Officers Arena, Vazquez, Schalen, and Maloney harassed, used excessive force and
illegally detained Plaintiff

TAC at 13, 15.

Plaintiff additionally contends that Rodriguez

threatened and harassed Plaintiff Id. at 14. First, the allegations as to Plaintiffs illegal detention
fail. “To prevail on [a] false arrest claim, plaintiffs would have to demonstrate at trial that the
police lacked probable cause to arrest [plaintiffs).” Gronian v. Township of Manalapan, 47 F.3d

14

628, 634 (3d Cir. 1995). “[P]robable cause is defined in terms and circumstances sufficient to
warrant a prudent man in believing that the suspect had committed or was committing a crime.”
Merkie

i’.

Upper Dublin Sc/i, DIM., 211 F.3d 782, 789 (3d Cir. 2000) (citing Shan’ar

i’.

Peking,

128 F.3d 810, 817-18 (3d Cir. 1997)). Plaintiff alleges, in a conclusory manner, that she was
falsely arrested and illegally detained. But to state a claim for relief, Plaintiff must plausibly assert
why the Defendants lacked probable cause to arrest her. Plaintiff fails to do so.
As for Plaintiffs allegations of excessive force, “[a] cause of action exists under

§

1983

when a law enforcement officer uses force so excessive that it violates” the Fourth Amendment’s
protection from unreasonable search and seizure. Groman, 47 F.3d at 633-34. When a police
officer uses force to effectuate an arrest, that force must be reasonable. Id. at 634 (citing Graham
v. Connor, 490 U.S. 386, 396 (1989)). The reasonableness of the force used is measured by
“careful attention to the facts and circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.
(quoting G,vham, 490 U.S. at 396). Here, Plaintiff fails to allege sufficient facts to survive a
motion to dismiss. For example, the Court does not know what type of force was used on Plaintiff,
whether the Officers had reason to believe the Plaintiff posed an immediate threat to their safety
or had reason to believe that she was resisting arrest or attempting to flee. See, e.g., Bradley
Jersey City Police Dep

‘t,

i

No. 12-5236, 2013 WL 4606710, at *5 (D.N.J. Aug. 29, 2013)

(dismissing excessive force claim due to “the absence of a thller factual description, and where the
only harm Plaintiff is aLleged to have suffered is the discomfort of tight handcuffs”). Finally,
“mere verbal threats do not provide a basis for a viable

§

1983 claim.” Sweetnian v Borough of

Norriston’n, PA, 554 F. App’x 86, 90 (3d Cir. 2014) (citing Hopson v. Predericksen, 961 F.2d

15

1374, 1378 (8th Cir. 1992)). Consequently, the Section 1983 claims against Arena, Vazquez,
Schalen, Maloney, and Rodriguez are dismissed.
Lastly, Plaintiff states that Maloney failed to investigate Plaintiffs complaints. Id. at 15.
“[Am allegation of a failure to investigate, without another recognizable constitutional right, is not
sufficient to sustain a section 1983 claim.” Graw v. Fantaskv, 68 F. App’x 378, 383 (3d Cir. 2003)
(quoting DeShanev v. Winnebago Ctv. Dep’t of Soc. Sen’s., 489 U.S. 189, 196 (1989)). Because
Plaintiff does not sufficiently allege any other constitutional violation, her failure to investigate
claim fails.
IV.

DISMISSAL WITH PREJUDICE
As discussed above, Plaintiff fails to state any federal cause of action against any of the

parties moving for dismissal. When dismissing a case brought by apm se plaintiff, a court must
decide whether the dismissal will be with or without prejudice. Gruvson

i.

Man’iew State Hosp..

293 F.3d 103, 110-lI (3d Cir. 2002). As discussed, a party may not amend a complaint that is
dismissed with prejudice because a dismissal with prejudice operates as an adjudication on the
merits and bars a later action against the same defendants or their privies. Gambocz. 468 R2d at

840. The district court may dismiss with prejudice, thus denying leave to amend only if (a) the
moving party’s delay in seeking amendment is undue, motivated by bad faith, or prejudicial to the
non-moving party or (b) the amendment would be thtile. Adams v Gottidhic., 739 F.2d 858, 864
(3d Cir. 1984).
In this instance, Plaintiff has already been granted two opportunities to cure. Judges Arleo
and Chen have already explained to Plaintiff that certain legal theories lack merit, yet Plaintiff
continues to assert these same legal theories in her amended pleadings. Moreover, although Judge
Arleo granted Plaintiff leave to re-plead her claims against the EPD. Plaintiff still fails to state any

16

federal causes of action against the EPD or any of the individual EPD parties that were included
in the TAC for the first time. Finally, the majority of the new parties that Plaintiff included in the
TAC are immune from suit. Consequently, the Court concludes that any amendment would be
futile. As a result, Plaintiffs claims are dismissed with prejudice.
V.

CONCLUSION
For the foregoing reasons, the Defendants’ motions to dismiss, D.E. 32, 41. 51, 54. are

GRANTED. The following Defendants are DISMISSED with prejudice from this matter because
they are immune from this suit: the Federal Bureau of Investigation, the Honorable Candido
Rodriguez, the Honorable James Wilson, the Honorable John Hudak, the Union County
Prosecutor’s Office, the State of New Jersey Department of Children and Families, the State of
New Jersey Judiciary

—

Union Vicinage, the New Jersey State Police, Agnes Ekama, James S.

Agro, Carmela Mozza, and Carl Marshall. In addition, the Jersey City Police Department and the
Elizabeth Police Department are DISMISSED with prejudice because they are not proper parties.
In addition, the claims asserted against Eric C. Peterson have already been DISMISSED with
prejudice and cannot be reasserted in this or any subsequent pleading. Finally, the claims asserted
against the City of Jersey City, Victor Arena, the City of Elizabeth, the Municipal Court of the
City of Elizabeth, Joseph Wassel, Ralph Vazquez, Sergeants Moloney and Hilongos, Lieutenant
Rodriguez, and Rense Schalen are DISMISSED with prejudice pursuant to Rule 12(b)(6) for
failure to state a claim.
Dated: December 29, 2016

Joh Michael Vazquk, U

17

.D.J.