SUMMERVILLE et al v. NEW JERSEY STATE POLICE et al

Filing 51

OPINION AND ORDER denying 37 Motion to Dismiss Third Amended Complaint. Signed by Judge Kevin McNulty on 3/11/2016. (ld, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

STANLEY SUMMERVILLE, et al.,

No. 14-cv-7653 (KM)(MAH)

Plaintiffs,
OPINION AND ORDER

V.

DETECTIVE SERGEANT M. GREGORY,
et al.,
Defendants.
KEVIN MCNULTY, U.S.D.J.:
This Section 1983 case arises from an allegedly unconstitutional
detention of the plaintiffs by a number of New Jersey State Troopers. It now
comes before the Court on the Rule 12(b)(6) motion (ECF no. 37) of one
defendant, State Police Colonel Joseph R. Fuentes, to dismiss the Third
Amended Complaint (“3AC”, ECF no. 33). That Third Amended Complaint was
filed in response to Col. Fuentes’s motion to dismiss the Second Amended
Complaint. Magistrate Judge Clark, in granting leave to amend (ECF no. 32),
put off Col. Fuentes’s substantive arguments, stating that they would be better
addressed in a motion to dismiss the Third Amended Complaint. Hence this
motion.
Col. Fuentes argues that any liability based on the actions of the troopers
does not extend to him, because the complaint does not adequately allege a
pattern and custom of violations that he knew of or acquiesced in. However
cogent those contentions may be, they cannot be settled at the pleading stage.
The allegations of the complaint are adequate, and the motion to dismiss will
be denied.

1

Standard
To withstand a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), a complaint must contain (1) a short and plain statement of the
grounds for the court’s jurisdiction; (2) a short and plain statement of the claim
showing that the pleader is entitled to relief; and (3) a demand for the relief
sought. Fed R. Civ. P. 8(a). For purposes of a motion to dismiss, the facts
alleged in the complaint are accepted as true and all reasonable inferences are
drawn in favor of the plaintiff. N.J Carpenters & the Trs. Thereof v. Tishman
Const. Corp. of N.J., 760 F.3d 297, 302 (3d Cir. 2014). 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 a formulaic recitation of the
elements of a cause of action will not do.” Bell Ati. Corp. v. Twombly, 550 U.s.
544, 555, 127 S. Ct. 1955, 1964—65 (2007). Thus, the complaint’s factual
allegations must be sufficient to raise a plaintiff’s right to relief above a
speculative level, so that a claim is “plausible on its face.” Id. at 555, 570; see
also W. Run Student Hous. Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165,
169 (3d Cir. 2013).
The Underlying Incident
These allegations have not been tested by any fact finder, but are
accepted as true for purposes of a motion to dismiss only.
This action under 42 U.S.C

§

1983 alleges that State troopers confronted

and detained the plaintiffs, in violation of their Fourth Amendment rights and
on the basis of racial profiling, and thereafter filed a misleading police report.
Plaintiffs are “African male[sj whose color is black and who appear[j to be
African-American.” (3AC

¶J

5, 6) They allege that they were in a shopping

center mall, loading items into newly purchased suitcases in the rear
compartment of their car. At that point, several unmarked police cars chased
and then blocked a Lexus driven by an African-American male (whose name
was later revealed to be Parker), about 30 to 40 yards away from the plaintiffs’

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car. Parker was arrested. Several of the officers, guns drawn, ran over to the
plaintiffs; white persons nearby were left undisturbed. Plaintiffs were
handcuffed, forced to the ground, and asked if they knew Parker. The officers
checked for warrants; asked for and got consent to search the plaintiffs’ car;
and checked mall surveillance tapes to verify whether the plaintiffs had been
shopping. The handcuffs were then removed. Later, the officers wrote an
investigative report. This omitted the fact that plaintiffs were 30 to 40 yards
from the location of the arrest. (3AC

¶J

36—67)

Analysis
The only issue on this motion is whether the complaint, assuming it
alleges a cause of action against the individual State troopers, adequately
alleges a basis to hold Col. Fuentes liable as their commanding officer. His
liability is alleged to rest on failure to act, inadequate training of officers, and
acquiescence in a pattern and practice of unlawful stops. (See 3AC, Second and
Third Causes of Action) The complaint cites Monell v. New York City Dept. of
Social Servs., 436 U.S. 658, 694, 98 S. Ct. 2018 (1978).
The liability of a defendant in a Section 1983 civil rights action cannot be
predicated on respondeat superior. See Shaw by Strain v. Stackhouse, 920 F.2d
1135, 1147 (3d Cir. 1990); Monell, 436 U.S. at 694, 98S. Ct. 2018; Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parrat v. Taylor, 451
U.S. 527, 537 n. 3, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Hampton v.
Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976)). There must
be some personal responsibility.
A supervisor may be held liable under Section 1983 if that supervisor
was “involved personally, meaning through personal direction or actual
knowledge and acquiescence, in the wrongs alleged.” McKenna v. City of
Philadelphia, 582 F.3d 447, 460 (3d Cir. 2009) (citing Rode v. Dellarciprete, 845
F.2d 1195, 1207 (3d Cir. 1988)); see also A.M. ex rel J.M.K. v. Luzerne Cnty.
Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)(”A supervisor may be
personally liable

...

if he or she participated in violating the plaintiffs rights,

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directed others to violate them, or, as the person in charge, had knowledge of
and acquiesced in his subordinates’ violations.”)
The plaintiffs here rely specifically on a theory that Col. Fuentes, who
occupied a policymaking position, “with deliberate indifference to the
consequences, established and maintained a policy, practice or custom which
directly caused [the] constitutional harm.” Luzeme Cnty. Juvenile Det. Ctr., 372
F.3d at 586 (quoting Stoneking v. Bradford Area Scho. Dist., 882 F.2d 720, 725
(3d Cir. 1989). A “policy” may consist of an official announcement or statement.
Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (citing Andrews v. City of
Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990); Pembaur v. City of Cincinnati,
475 U.S. 469, 481 (1986)). A “custom” may be found where “a given course of
conduct, although not specifically endorsed or authorized by law, is so wellsettled and permanent as virtually to constitute law.” Id. (citing Andrews, 895
F.2d at 1480). The plaintiff must show (here, allege) that the municipal policy
or custom was the proximate cause of the injuries suffered. Id.
A liability-creating “policy” may stem from a failure to properly train
personnel. Such a theory, however, is a “most tenuous” basis for liability.
Connick v. Thompson, 563 U.S. 51, 61, 131 S. Ct. 1350, 1359 (2011). In
Thomas v. Cumberland County, 749 F’.3d 217 (3d Cir. 2014), the Court of
Appeals helpfully summarized the elements of such a “failure-to-train” claim:
Where the policy “concerns a failure to train or supervise
municipal employees, liability under section 1983 requires a
showing that the failure amounts to ‘deliberate indifference’ to the
rights of persons with whom those employees will come into
contact.” Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999)
(quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)
(“Canton”)). Additionally, “the identified deficiency in a city’s
training program must be closely related to the ultimate injury;” or
in other words, “the deficiency in training [must have] actually
caused” the constitutional violation. Canton, 489 U.S. at 391.
Id. at 222.
“Ordinarily, ‘[a] pattern of similar constitutional violations by untrained
employees’ is necessary ‘to demonstrate deliberate indifference for purposes of

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failure to train.” Connick v. Thompson, 563 U.S. 51, 131 S. Ct. 1350, 1360
(2011).” Ordinarily, but not always:
[Tihe Supreme Court posited in Canton that in certain situations,
the need for training “can be said to be ‘so obvious,’ that failure to
do so could properly be characterized as ‘deliberate indifference’ to
constitutional rights” even without a pattern of constitutional
violations. 489 U.S. at 390 n. 10. Connick offered a hypothetical
example of this “single-incident” failure-to-train liability. Because
“city policymakers know to a moral certainty that their police
officers will be required to arrest fleeing felons,” if the city arms the
officers with firearms, “the need to train officers in the
constitutional limitations on the use of deadly force” is “so obvious”
that a failure to provide such training could provide a basis for
single-incident municipal liability. Id. Liability in single-incident
cases depends on “[tihe likelihood that the situation will recur and
the predictability that an officer lacking specific tools to handle
that situation will violate citizens’ rights.” [quoting Bd. of Cty.
Comrn’rs of Bryan Cty., Oki. v. Brown, 520 U.S. 397, 409, 117 S.
Ct. 1382, 1391 (1997).
Thomas, 749 F.3d at 223—24. I read the Supreme Court to be saying that such
a claim would be out of the ordinary course.
Here are the relevant allegations of the complaint’ as to Col. Fuentes,
custom and policy, and failure to train:
Col. Fuentes entered the NJSP in 1978 and became Superintendent in
2003. He has broad power over personnel and hiring. As part of a 1999 consent
decree, the NJSP have adopted a protocol (“F-55”) designed to ensure that
motor vehicle stops are proper and race-neutral. (3AC

¶J

22—24, 30) Persons of

color are underrepresented in the NJSP, particularly at the higher ranks. (3AC
¶j 27—29, 32—33) There is at least claim of race discrimination involving Col.
Fuentes that is pending, and on information and belief there are more. (3AC
¶J34—35)

1 These allegations, too, are accepted as true for purposes of a motion to
dismiss only.

5

I now summarize certain of the allegations (there are more, overlapping
ones) which are stated “upon information and belief”:
(1)

There is a widespread practice in the NJSP, of which Col. Fuentes
is aware, of falsifying reports to disguise stops without reasonable
suspicion or probable cause Col. Fuentes has not remedied it by
disciplining or training officers. (3AC

(2)

¶J

68—69)

There is a widespread practice in the NJSP, of which Col. Fuentes
is aware through the 1999 consent decree, official reports and
civilian complaints, of racial profiling with respect to stops and
arrests. The 1999 decree put in place a salutary policy, but it has
not been adhered to. Col. Fuentes has not remedied it by
disciplining or training officers, despite an existing protocol
requiring periodic reviews. (3AC ¶j 70—7 1, 102—03)

(3)

Better antibias training method have been used to minimize
discrimination by police. Col. Fuentes is aware of them, but has
not implemented them. (3AC

(4)

flJ

112—14)

The State Attorney General’s rejection of the plaintiffs’ complaint
resulted from these widespread practices and the acquiescence of
Col. Fuentes. (3AC

¶J

72—74) The investigation was inadequate,

and did not involve contacting the plaintiffs. (3AC
(5)

¶

77)

The officers were not disciplined or subjected to increased
supervision, and Col. Fuentes was aware of this. (3AC

¶f

75—76,

78)
(6)

The defendant officers’ acts themselves demonstrate that training
was deficient, but were ignored by Col. Fuentes despite his
knowledge of the 1999 consent decree and past discrimination.
(3AC

¶

791

These allegations are not wholly without a basis in the history of the
NJSP, but they are not very specific, either. There is also a certain irony in
using the consent decree (now 17 years old) and the NJSP’s subsequent
promulgation of guidelines to avoid racial profiling as proof that there is a
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policy in favor of racial profiling. But that is for another day. Actual patterns
and practices within the NJSP may depend on information largely within the
control of defendants. I will deny the motion to dismiss and permit the claims
to go forward.
Finally, Defendant Fuentes expresses concern that this is a “fishing
expedition.” Such concerns are better addressed to discovery requests, should
they turn out to be overbroad. I am confident that the Magistrate Judge will
ensure that this relatively simple claim does not get out of hand. One method
might be to prioritize discovery relating to the incident itself, and to the officers
involved in it, in order to focus the claims.

ORDER
Defendant State Police Colonel Joseph R. Fuentes having filed a motion
(ECF no. 37) pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the Third Amended
Complaint (ECF no. 33); and the plaintiffs having filed a response (ECF no. 40);
and Fuentes having filed a reply (ECF no. 41); and the court having considered
the matter without oral argument; for the reasons stated in the foregoing
Opinion, and good cause appearing therefor:
IT IS this 11th day of March, 2016
ORDERED that the motion (ECF no. 37) of Defendant State Police
Colonel Joseph R. Fuentes to dismiss the complaint is DENIED.

Hon. Kevin McNulty
United States District

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