AZIZ v. ELIZABETH POLICE DEPARTMENT et al
OPINION. Signed by Judge Kevin McNulty on 7/12/17. (DD, ) N/M
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 14-7296 (KM) (MAH)
ELIZABETH POLICE DEPARTMENT,
KEVIN MCNULTY, U.S.D.J.
The plaintiff, Abdul Aziz, is detained at the Union County Jail in Union, New Jersey. Mr.
Aziz is proceeding prose with an amended civil rights complaint filed pursuant to 42 U.S.C.
1983. Previously, this Court screened Mr. Aziz’s original complaint. The federal claims were
dismissed without prejudice and this Court declined to exercise supplemental jurisdiction over
Mr. Aziz’s state law claims. Thereafter, Mr. Aziz filed an amended complaint. (See Dkt. No. 12)
Accordingly, the Clerk will be ordered to reopen this case so that the amended complaint can be
This Court must review the amended complaint pursuant to 28 U.S.C.
1915A to determine whether it should be dismissed as frivolous or malicious, for failure to state
a claim upon which relief may be granted, or because it seeks monetary relief from a defendant
who is immune from suit. For the reasons set forth below, the federal claims will be dismissed
without prejudice for failure to state a claim upon which relief may be granted. This Court will
also decline to exercise supplemental jurisdiction over Mr. Aziz’s state law claims. Mr. Aziz
shall be given one more opportunity to file a proposed second amended complaint should he
elect to do so.
The allegations of the amended complaint will be construed as true for purposes of this
opinion. The amended complaint names the following defendants: (I) Elizabeth Police
Department; (2) Humberto Alverez; (3) Paul McCrae; (4) Johnny Arrante; and (5) Niami
Mr. Aziz’s amended complaint centers on an incident that occurred at the Elizabeth
Police Department headquarters on July 11, 2011. Mr. Aziz states that he went to the
headquarters on July 11,2011 to report an incident involving an injury to another person. He was
met there by Alverez. who asked for Aziz’s identification in order to check for outstanding
warrants. Alverez also asked him where the incident had taken place. Mr. Aziz responded that he
did not know the name of the street.
Alvarez allegedly responded to Mr. Aziz’s statement as follows:
Well there is no such report of anything even close to what you
have just described to me. But I would love to lock your black ass
up. But. whatever you did, you got away with that one. Now get
the fuck oufla here!!
(Dkt. No. 12 at p.9) Mr. Aziz then left police headquarters.
A short time later, Mr. Aziz returned to police headquarters. This time, he was met by
McCrae. Mr. Aziz explained the situation to McCrae, who asked to see Mr. Aziz’s identification.
While McCrae was checking Mr. Aziz’s identification, Alverez returned and consulted with
McCrae. Thereafter, both McCrae and Alverez returned to the reception area desk and dismissed
Mr. Aziz without further questioning. Mr. Aziz protested that he wanted someone to help him.
At this point, Arrante arrived and attempted to calm the situation. Arrante took down Mr.
Aziz’s name as welL as the name of the injured person. Mr. Aziz was again sent on his way.
Mr. Aziz states that it was not until twelve hours later, after a 911 call was made, that his
initial reports were deemed to be credible. Mr. Aziz states that a cover-up then began regarding
the Police Department’s failure to respond to his reports. Mr. Aziz was eventually charged with
Mr. Aziz’s original complaint was dismissed without prejudice. I noted that it was not
entirely clear upon what personal rights secured by the Constitution were allegedly violated by
the defendants. Mr. Aziz’s claim regarding Alverez’s direct statements to him, I
deserve further discussion. Nevertheless, I explained that verbal abuse or threats without any
injun’ or damage were not cognizable under
1983. (See Dkt. No. 7 at p.6)
Thereafter, Mr. Aziz filed an amended version of his complaint. Mr. Aziz now asserts
that he was discriminated against based on his race, in violation of the equal protection clause of
the Fourteenth Amendment. He seeks monetary damages in the amount of $5.5 million.
Under the Prison Litigation Reform Act. Pub.L. 104-134,
801-810, 110 Stat. 132 1-66
to 1321-77 (Apr. 26, 1996) (“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding infonnapaziperis, see 28 U.S.C.
seeks redress against a governmental employee or entity, see 28 U.S.C.
claim with respect to prison conditions, see 42 U.S.C.
19l5A(b), or brings a
1997e. The PLRA directs district courts
to sua sponte dismiss any claim that is frivolous, is malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant who is immune from such
relief, see 28 U.S.C.
“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
1915(e)(2)(B)(jj) is the same as that for dismissing a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012)
(citing Allah v. Seh’erling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v Beard, 492 F. App’x
230, 232 (3d Cir. 2012) (discussing 42 U.S.C.
1997e(c)(I)); Courteau v United Stares, 287
Fed.Appx. 159, 162 (3d Cir. 2008) (discussing 28 U.S.C.
1915A(b)). That standard is set forth
Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v Twonibly, 550 U.S. 544
(2007), as explicated by the United States Court of Appeals for the Third Circuit. To survive the
court’s screening for failure to slate a claim, the complaint must allege ‘sufficient factual matter’
to show that the claim is facially plausible. See Fouler
UPMCShadyside, 578 F.3d 203, 210
(3d Cir. 2009) (citation omitted). “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.” Fair Wind Sailing, Inc. v. Denzpsi’er, 764 F.3d 303. 308 n.J (3d Cir. 2014)
(quoting Jqbal, 556 U.S. at 678). “[Aj pleading that offers ‘labels or conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’
Jqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555).
Pro se pleadings, as always, will be liberally construed. See Haines
Kerner, 404 U.S.
519 (1972). Nevertheless, ‘prose litigants still must allege sufficient facts in their complaints to
support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation
A plaintiff may have a cause of action under 42 U.S.C.
1983 for certain violations of
constitutional rights. Section 1983 provides in relevant part:
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 thin 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, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
Thus, to state a claim for relief under
§ 1983, a plaintiff must allege first, the violation of
a right secured by the Constitution or laws of the United States, and second, that the alleged
deprivation was committed or caused by a person acting under color of state law. See Harvey i’
Plains Thi’p. Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also liest v
Atkins. 487 U.S. 42,48(1988).
A. Federal Claims
Mr. Aziz’s amended complaint has not remedied the defects of his original complaint. As
noted above, Mr. Aziz attempts to bring an equal protection claim based on the treatment he
received from the defendants on July 11,2011 at the Elizabeth Police Department headquarters.
“The Equal Protection Clause of the Fourteenth Amendment commands that no State
shall deny to any person within its jurisdiction the equal protection of the laws,’ which is
essentially a direction that all persons similarly situated should be treated alike.” City of
Cleburne v Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202,
216 (1982)). Thus, to state a class-based claim under the Equal Protection Clause, a plaintiff
must allege that: (1) he is a member of a protected class; and (b) he was treated differently from
similarly situated persons. See id.
In this case, however, Mr. Aziz has only alleged verbal harassment and a racially-based
insult. Such language, assuming it was uttered, is indefensible, but without more it fails to
1983 claim. “the use of racially derogatory language, while unprofessional and
deplorable, does not violate the Constitution.” Gannaway v. Berks Cnty, Prison, 439 F. App’x
86, 91 (3d Cir. 2011) (quoting Dc Walt v. Carter, 224 F,3d 607, 612 (7th Cir. 2000); Mugavero
Town fKearny,No. 12-2439, 2013 WL 3930120, at *3 (D.N.J. July 30, 2013) (“[R]acially
discriminatory’ statements, racial slurs, and racial epithets, on their own, fail to establish liability
under section 1983.”) (citations omitted). I stated as much in my previous opinion.
I will give Mr. Aziz a final opportunity to allege a federal constitutional claim in a
proposed second amended complaint, should he elect to do so.
For the guidance of this prose plaintiff, I also point out that these section 1983 claims
appear on their face to be barred by the applicable two-year statute of limitations. They would be
dismissed on that alternative grounds as well.
Section 1983 claims are subject to the New Jersey two-year statute of limitations for
personal injury claims. See Patyrakv. Apgar, 511 Fed.Appx. 193, 195 (3d Cir. 2013) (per
curiam) (citing Dique v. N.J Stale Police, 603 F.3d 181, 185 (3d Cir. 2010)). The date that a
cause of action under
1983 accrues is determined by federal law. See Kach v. Hose, 589 F.3d
626, 634 (3d Cir. 2009) (citing Geiny v. Resolution Trust. Corp., 937 F.2d 899, 919 (3d Cir.
1991)). “Under federal law, a cause of action accrues, and the statute of limitations begins to run
when the plaintiff knew or should have known of the injury upon which its action is based.” Id.
(internal quotation marks and citations omitted). “As a general matter, a cause of action accrues
at the time of the last event necessary to complete the tort, usually at the time the plaintiff suffers
an injury.” Id. (citing United Slates v. Kubrick. 444 U.S. 111. 120 (1979)).
The amended complaint arises from a purported incident that occurred at the Elizabeth
Police Department headquarters on July 11, 2011 Mr. Aziz’s claims surely accrued at that time,
as Mr. Aziz was present and knew of the injury upon which his action is based. Mr. Aziz did not
file the original complaint until more than three years later, in November, 2014.
“State law, unless inconsistent with federal law.
governs the concomitant issue of
whether a limitations period should be tolled.” McPherson v. United Stales, 392 Fed.Appx. 938,
944 (3d Cir. 2010) (quoting Dique, 603 F.3d at 185). New Jersey sets forth certain bases for
statutory tolling. See, e.g., N.J. STAT. ANN.
insanity); N.J. STAT. ANN.
2A: 14-21 (detailing tolling because of minority or
2A: 14-22 (detailing tolling because of non-residency of persons
liable). Additionally, New Jersey “permits equitable tolling where ‘the complainant has been
induced or tricked by his adversary’s misconduct into allowing the deadline to pass,’ or where a
plaintiff has ‘in some extraordinary way’ been prevented from asserting his rights, or where a
plaintiff has timely asserted his rights mistakenly by either defective pleading or in the wrong
forum.” Cason v. Auie Street Police Dep’t. No. 10-0497, 2010 WL 2674399, at *5 n.4 (D.N.J.
June 29, 2010) (citing Freeman v Stale, 347 N.J. Super. 11, 31 (N.J. Sup. Ct. App. Div. 2002)).
In any second amended complaint that Mr. Aziz may elect to file, he shall expressly and
specifically explain why his section 1983 claims are not barred by the two-year statute of
B. State Law Claims
Mr. Aziz is also attempting to bring state law claims in his amended complaint. The only
potential basis for this Court’s jurisdiction is supplemental jurisdiction pursuant to 28 U.S.C.
1367. When a court has dismissed all claims over which it had original federal-question
jurisdiction, however, it has the discretion to decline to exercise supplemental jurisdiction over
the remaining state law claims. See 28 U.S.C.
1367(c)(3). As Mr. Aziz’s federal claims have
been dismissed at the outset for failure to state a claim upon which relief may be granted, the
court will exercise its discretion to decline supplemental jurisdiction over his state law claims.
For the foregoing reasons, the amended complaint will be dismissed without prejudice to
the submission of a proposed second amended complaint that remedies the deficiencies of the
amended complaint. Because this is Mr. Aziz’s third opportunity to file an adequate complaint,
any subsequent dismissal is likely to be with prejudice. An appropriate order will be filed.
DATED: July 12, 2017
United Slates Districi Judge
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