ABDUL-AZIZ v. THE CITY OF ELIZABETH N.J. POLICE DEPARTMENT et al

Filing 13

OPINION. Signed by Judge Madeline C. Arleo on 5/5/2016. (JB, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ABDUL-AZIZ,
Plaintiff,
v.

Civil Action No. 14-7675
OPINION

THE CITY OF ELIZABETH N.J. POLICE
DEPARTMENT, et al.,
Defendants.

ARLEO, UNITED STATES DISTRICT JUDGE
I.

INTRODUCTION
This matter comes before the Court on Plaintiff Abdul-Aziz’s (“Plaintiff”) motion to

proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915. Dkt. No. 11. At this time the Court
will GRANT Plaintiff’s IFP application and screen the Amended Complaint, pursuant to 28 U.S.C.
§ 1915(e)(2)(B), 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 such relief. For the reasons set forth below, the Amended
Complaint is DISMISSED in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff shall be
provided 30 days to cure the deficiencies cited herein. If Plaintiff fails to amend the Complaint in
this time, the Complaint shall be dismissed with prejudice.
II.

BACKGROUND
Plaintiff is a pretrial detainee currently confined at Union County Jail.

His initial

Complaint was submitted to prison officials on November 10, 2014, Dkt. No. 1-6, and was

docketed on December 10, 2014. Compl., Dkt. No. 1. His submission included an application for
IFP status and a number of attachments. Id. On July 24, 2015, the Court denied Plaintiff’s IFP
application for failure to include the required certified account statement. Dkt. No. 2. Plaintiff
subsequently submitted the statement but did not submit the required certification. Dkt. Nos. 3, 4.
Plaintiff also submitted an application for pro bono counsel and a request to file an Amended
Complaint. Dkt. Nos. 5, 6. Noting that Plaintiff’s Complaint had not yet been screened, Magistrate
Judge Wettre denied without prejudice Plaintiff’s application for pro bono counsel and granted his
motion to amend the Complaint. Dkt. No. 8. Plaintiff also filed a motion to consolidate the instant
action with a related state court action, and this Court denied that motion pursuant to Fed. R. Civ.
P. 42, which permits consolidation of only federal cases. Dkt. No. 9. Plaintiff filed his Amended
Complaint on October 29, 2015, which included another IFP application. Dkt. No. 11. The
Amended Complaint contains claims pursuant to 42 U.S.C. § 1983 arising from allegations that he
attempted to report a shooting incident to officers at the Elizabeth Police Department on July 11,
2011, but the officers allegedly refused to accept his report or investigate the incident and then
sought to cover up their misconduct. Am. Compl., Dkt. No. 11.
Plaintiff alleges that on July 11, 2011, he “walked into the Elizabeth Police Headquarters
located at One Police Plaza and ‘reported’ an incident which had only moments ago taken place.”1
Abdul-Aziz Aff., Dkt. No. 11 at 8. The Amended Complaint does not describe the “incident” that
Plaintiff allegedly attempted to report; however, Plaintiff attached to his Initial Complaint an
Investigation Report prepared by the Union County Prosecutor’s Office, which sheds some light
on the incident referred to in Plaintiff’s Amended Complaint. Investigation Report, Dkt. No. 1-3

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The Court notes that Plaintiff’s Amended Complaint appears to incorporate the allegations in the
Initial Complaint and the attachments submitted with the Initial Complaint. See Dkt. No. 11; Am.
Compl. ¶¶ 10, 12. Where necessary, the Court refers to these documents.
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Ex. A. This report, dated October 28, 2011, and prepared by Sergeant Edward R. Koenig, states
that an arrest warrant was executed on July 16, 2011 for Plaintiff Abdul Aziz in connection with
the shooting death of his girlfriend.2 Id. The report further states that Plaintiff told investigators
that he had “responded to Elizabeth Police Department Headquarters on July 11, 2011 and advised
the desk officer [that] he had shot his girlfriend[,] and he was turned away and he left.” Id. The
report appears to describe a subsequent internal investigation to determine which officers and staff
were working on July 11, 2011. Id. The report states that all of the Elizabeth Police Department
(“EPD”) officers interviewed in connection with the investigation denied Plaintiff’s allegations
that he had reported that he had shot his girlfriend/wife. Id.
Plaintiff’s Amended Complaint names the EPD and the EPD officers listed in the October
28, 2011 Investigation Report (hereafter referred to collectively as the “Officer Defendants”) as
Defendants, and provides the following additional facts in an unnumbered affidavit attached to the
Amended Complaint. See Am. Compl. at 9-12, Dkt. No. 11. Plaintiff alleges that an EPD Officer,
identified in the Amended Complaint as “officer number one,” called him a racial epithet and
refused to accept his report of the incident. Id. Plaintiff alleges that he left the building in disbelief,
but returned a short while later and again attempted to report the “incident.” Id. Officer number
one allegedly prevented another officer, referred to in the Amended Complaint as “officer number
two,” from assisting Plaintiff and taking the report. Id. After being denied assistance a second
time, Plaintiff allegedly cried out loudly, and a third officer came to assist him. Id. This officer,
referred to in the Complaint as “officer number three,” took out his notepad and appeared to write
down “all the information [Plaintiff] reported.” Id. After Plaintiff reported the incident, the Officer

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It is not clear from the report whether the shooting victim was Plaintiff’s girlfriend or wife.
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Defendants allegedly did nothing to follow up on Plaintiff’s report until receiving a 911 call
“nearly twelve hours later[.]” Id.
Plaintiff alleges that the EPD and the Officer Defendants then attempted to cover up their
failure to respond, assist, or investigate. Id. at 11-12. Plaintiff also appears to allege that the Union
County Prosecutor’s Officer issued an arrest warrant, searched and seized his vehicle, arrested
him, and set his bail at one million dollars in order to “make up for Elizabeth Police Department
dropping the ball and failing to act” on Plaintiff’s report. Id. at 12.
The Amended Complaint describes the causes of action brought by Plaintiff as “bias
intimidation, official misconduct, official deprivation of [Plaintiff’s] civil rights . . . wanton
negligence and blatant refusal to perform the duty which is imposed upon by law and clearly
inherent in the nature of his office.” Am. Compl. ¶ 13. Plaintiff’s Amended Complaint further
alleges that the Defendants’ conduct “violated Plaintiff Abdul-Aziz[’s] rights and [that their
actions] violated various amendments to the United States Constitution.” Id. Elsewhere in the
Amended Complaint, Plaintiff alleges that the Officer Defendants
Did knowingly, purposely, and openly refused to perform their
official duties, intimidated Plaintiff with the use of racially
motivated epithet and arbitrarily chose to prevent and hinder
[Plaintiff] from a right and privilege secured by the Constitution or
laws of the United States while acting under the color of state law.
Due to their actions and false statements, Plaintiff has wrongly been
charged with murder.
Dkt. No. 11 at 17. Finally, Plaintiff alleges that the Officer Defendants committed a number of
state law crimes. Id. at 16. Plaintiff seeks declaratory relief and damages. Am. Compl. ¶¶ 1520.)

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III.

STANDARD OF REVIEW
Under the PLRA, district courts must review complaints in those civil actions in which a

person is proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B). The PLRA directs district
courts to sua sponte dismiss any claim that is frivolous, 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.
Id.
Here, Plaintiff’s Complaint is subject to screening under 28 U.S.C. § 1915(e)(2)(B). “The
legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) 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.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Courteau v. United States, 287 F. App’x 159, 162
(3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)). To state a claim that survives a Rule 12(b)(6)
motion to dismiss, a complaint must contain “enough facts to state a claim to relief that is plausible
on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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).
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. Kerner, 404 U.S. 519,
520 (1972). “The Court need not, however, credit a pro se plaintiff’s ‘bald assertions’ or ‘legal
conclusions.’” D’Agostino v. CECOM RDEC, No. 10-4558, 2010 WL 3719623, at *1 (D.N.J.
Sept. 10, 2010). That is, “[e]ven a pro se complaint may be dismissed for failure to state a claim
if the allegations set forth by the plaintiff cannot be construed as supplying facts to support a claim

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entitling the plaintiff to relief. Gibney v. Fitzgibbon, 547 F. App’x 111, 113 (citing Milhouse v.
Carlson, 652 F.2d 371, 373 (3d Cir. 1981)).
IV.

ANALYSIS
At the outset, the Court grants Plaintiff’s application to proceed in forma pauperis without

prepayment of fees and costs pursuant to 28 U.S.C. § 1915(a). The Court now reviews the merits
of the Complaint pursuant to 28 U.S.C. § 1915(e)(2). For the reasons below, the Complaint is
dismissed.
a. City of Elizabeth Police Department
From the outset, Plaintiff may not maintain a cause of action under Section 1983 against
the EPD. In New Jersey, a municipal police department is not an entity separate from the
municipality. See N.J. Stat. Ann. § 40A: 14-118 (municipal police department is “an executive
and enforcement function of municipal government”). As such, the EPD is not a proper defendant
in this action. See Padilla v. Twp. of Cherry Hill, 110 F. Appx. 272, 278 (3d Cir. 2004) (“In
Section 1983 actions, police departments cannot be sued in conjunction with municipalities,
because the police department is merely an administrative arm of the local municipality, and is not
a separate judicial entity.”) (quoting DeBellis v. Kulp, 166 F. Supp. 2d 255, 264 (E.D. Pa. 2001));
Aycox v. City of Elizabeth, No. 08-751, 2009 U.S. Dist. LEXIS 111345, at *7 (D.N.J. Dec. 1,
2009) (“Because the Police Department is merely an arm of the Township, Plaintiff’s claim against
the department cannot stand.”). The Court therefore dismisses with prejudice the claims against
the EPD.3

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In order for the City of Elizabeth to be held liable on a § 1983 claim Plaintiff must allege either:
(a) an official policy or custom or practice which results in constitutional violations; or (b) conduct
by officials in authority evidencing implicit authorization or approval or acquiescence in the
unconstitutional conduct. See Monell v. Dept. of Soc. Serv. Of the City of N.Y., 436 U.S. 658,
(1978); Rizzo v. Goode, 423 U.S. 362 (1976). It is only when “execution of a government policy
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b. Section 1983 Claims against the Remaining Officer Defendants
i. Alleged Misconduct by the Officer Defendants on July 11, 2011
“Section 1983 does not, by its own terms, create substantive rights; it provides only
remedies for deprivations of rights established elsewhere in the Constitution or federal laws.”
Hansell v. City of Atl. City, 152 F. Supp. 2d 589, 602 (D.N.J. 2001) (citations omitted), aff’d, 46
F. App’x 665 (3d Cir. 2002)). Notably, § 1983 does not create a cause of action based upon
violations of state statutes. See Brown v. Grabowski, 922 F.2d 1097, 1113 (3d Cir.), cert. denied,
501 U.S. 1218 (1991); Hansell v. City of Atl. City, 152 F. Supp. 2d 589, 602-03 (D.N.J. 2001),
aff’d, 46 F. App’x 665 (3d Cir. 2002) (same). Here, the gravamen of Plaintiff’s allegations against
the Officer Defendants is that they failed to perform their duties as police officers when they
refused to take his report regarding the shooting incident and subsequently failed to investigate the
incident. Plaintiff further alleges that one of the Officer Defendants used a racial epithet against
him when refusing to take his report. Neither of these allegations, together or alone, appears to
state a claim for relief under § 1983.
Furthermore, it appears that Plaintiff’s claims regarding the misconduct by the Officer
Defendants that occurred on July 11, 2011 would be time barred under the two-year statute of
limitations applicable to section 1983 actions. It is well established that there is no independent
statute of limitations for bringing a claim under 42 U.S.C. § 1983 in federal court. Instead, “the
[forum] state’s statute of limitations for personal injury” applies to claims filed under 42 U.S.C. §
1983. Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1988).

or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an entity is responsible under
Section 1983.” Monell, 436 U .S. at 694. Here, Plaintiff has not set forth any policy or custom of
the City of Elizabeth.
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In New Jersey, the statute of limitations for a civil rights claim under § 1983 is two years. Disque
v. New Jersey State Police, 603 F.3d 181, 189 (3d Cir. 2009). The limitations period begins to run
on the accrual date. For federal claims brought pursuant to 42 U.S.C. § 1983, the accrual date of
the claim is determined in accordance with federal law. Disabled in Action of Pa. v. Se. Pa. Trans.
Auth., 539 F.3d 199, 209 (3d Cir. 2008). Generally, a claim accrues when the facts which support
the claim reasonably should have become known to the plaintiff. Sameric, 142 F.3d at 599 (citing
De Botton v. Marple Twp., 689 F. Supp. 477, 480 (E.D. Pa. 1988)); see also Large v. Cnty. of
Montgomery, 307 F. App’x 606, 606 (3d Cir. 2009).
Here, it is clear from the face of the Amended Complaint that the misconduct related to (1)
the failure to take Plaintiff’s report or investigate the incident and (2) the use of the racial epithet
occurred on July 11, 2011. Plaintiff gave his Initial Complaint to prison officials for mailing on
November 10, 2014, Dkt. No. 1-6, more than three years after the Officer Defendants allegedly
refused to take his report, investigate the incident, and used the racial epithet. See Robinson v.
Johnson, 313 F.3d 128, 135 & n. 3 (3d Cir. 2002) (explaining that statute of limitations defense
may be asserted on motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) where it is
apparent on the face of the complaint that the claims are time-barred); Ostuni v. Wa Wa's Mart,
532 F. App’x 110, 112 (3d Cir. 2013) (explaining that where that defense is obvious from the face
of the complaint and no development of the record is necessary, a court may dismiss a time-barred
complaint sua sponte under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim”). Because
the section 1983 claims described in this section plainly appear to be time barred, the Court
dismisses these claims without prejudice. Plaintiff is granted leave to file an Amended Complaint
to the extent he is able to provide facts that would show these claims are timely or that he is entitled
to tolling.

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ii. Plaintiff’s Claim for Malicious Prosecution
Plaintiff also appears to allege that the Officer Defendants, with the assistance of the Union
County Prosecutor’s Office, attempted to cover up their failures to assist and investigate by
“excessively and improperly charg[ing Plaintiff] with the crime of murder.”4 Dkt. No. 11 at 11.
The Court construes Plaintiff to allege a claim for malicious prosecution.5 To prevail in a § 1983
action malicious prosecution action, a plaintiff must show:
(1) the defendants initiated a criminal proceeding;
(2) the criminal proceeding ended in the plaintiff's favor;
(3) the proceeding was initiated without probable cause;
(4) the defendants acted maliciously or for a purpose other than
bringing the plaintiff to justice; and
(5) the plaintiff suffered a deprivation of liberty consistent with the
concept of seizure as a consequence of a legal proceeding.
Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003). Here, Plaintiff, a pretrial detainee,
has not alleged facts showing that any of the Officer Defendants (1) initiated the criminal
proceeding against him or (2) that the criminal proceeding ended in his favor. As such, the Court
will dismiss the malicious prosecution claim without prejudice at this time.
c. Supplemental State Law Claims
Plaintiff has also alleged the violation of several state law criminal statutes. As noted
above, § 1983 does not create a cause of action based upon violations of state statutes. See Brown,

4

The Court does not construe Plaintiff to allege claims for false arrest or false imprisonment
against the Officer Defendants.
5
The Court notes that the statute of limitations for a malicious prosecution claim under Section
1983 accrues on the day that the criminal proceedings against a plaintiff are terminated in his or
her favor. Torres v. McLaughlin, 163 F.3d 169, 177 (3d Cir. 1998); see also Kossler v. Crisanti,
564 F.3d 181, 186–87 (3d Cir. 2009); Ginter v. Skahill, 298 F. App’x. 161, 163 (3d Cir. 2008)
(“When false arrest is the basis of the § 1983 action, the statute of limitations normally begins to
run at the time of arrest. Claims alleging malicious prosecution do not accrue until charges are
dismissed.”) (citing Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir. 1998) and Smith v.
Holtz, 87 F.3d 108, 111 (3d Cir. 1996)) (internal quotations omitted).
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922 F.2d at 1113. Because the Court has dismissed the federal claims, the remaining potential
basis for this Court’s jurisdiction over Plaintiff’s state law claims is supplemental jurisdiction
pursuant to 28 U.S.C. § 1367. “Supplemental jurisdiction allows federal courts to hear and decide
state-law claims along with federal-law claims when they are so related to claims in the action
within such original jurisdiction that they form part of the same case or controversy.” Wisconsin
Dept. of Corrections v. Schacht, 524 U.S. 381, 387 (1998) (citation and internal quotation marks
omitted). Where a district court has original jurisdiction pursuant to 28 U.S.C. § 1331 over federal
claims and supplemental jurisdiction over state claims pursuant to 28 U.S.C. § 1367(a), the district
court has discretion to decline to exercise supplemental jurisdiction if it has dismissed all claims
over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3); Growth Horizons, Inc. v. Delaware
Cnty., Pennsylvania, 983 F.2d 1277, 1284–85 (3d Cir. 1993). In exercising its discretion, “the
district court should take into account generally accepted principles of ‘judicial economy,
convenience, and fairness to the litigants.’” Growth Horizons, Inc., 983 F.2d at 1284 (quoting
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)). Where the federal claims are dismissed
at an early stage in the litigation, courts generally decline to exercise supplemental jurisdiction
over state claims. United Mine Workers, 383 U.S. at 726; Growth Horizons, Inc., 983 F.2d at
1284–85.
Here, the Court has dismissed the federal claims at the earliest possible stage of the
proceedings and exercises its discretion to decline supplemental jurisdiction at this time.
V.

CONCLUSION
For the reasons set forth herein, Plaintiff’s motion to proceed in forma pauperis is

GRANTED and the Complaint is DISMISSED for failing to state a claim upon which relief can
be granted. An appropriate order accompanies this Opinion.

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Date: May 5, 2016

/s Madeline Cox Arleo__________
Hon. Madeline Cox Arleo
United States District Judge

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