JEFFERSON v. OFFICER GEORGE LIAS

Filing 2

OPINION. Signed by Judge Kevin McNulty on 2/19/15. (DD, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DEVIN JEFFERSON,
Plaintiff,

:

V.

Civ. No. 15-1086 (KM) (MAH)
OPINION

ELIZABETH POLICE DEPARTMENT, et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.
I.

INTRODUCTION

The plaintiff, Devin Jefferson, is a prisoner at the Southern State Correctional Facility
in
Delmont, New Jersey. He is proceeding pro se with a civil rights complaint filed pursua
nt to 42
U.S.C.

§

1983. Mr. Jefferson’s application to proceed injörmapauperis will be granted based on

the information provided therein. Accordingly, the Clerk will be ordered to file the complaint.
The Court must now review the complaint pursuant to 28 U.S.C.

§

1915(e)(2)(B) and

191 5A to determine whether it should be dismissed as frivolous or malicious, for failure to
state
a claim upon which relief may he granted or because it seeks monetary relief from a defend
ant
who is immune from suit. For the reasons set lbrth below, the complaint will be permitted to
proceed against defendant George Lias, but will be dismissed without prejudice for failure
to
state a claim against defendants F. Banos and the Elizabeth Police Department.

11.

BACKGROUND

The allegations of the complaint will be construed as true for purposes this
of
screening.
The complaint names three defendants: (1) Officer George Lias (2)
;
1
F. Bonos; and (3) the
Elizabeth Police Department.
The complaint alleges as follows: On January 1 5, 2014, Mr. Jefferson was driving
a truck
that was being chased by the police. Officers attempted to pull Mr. Jeffers
on over and block him.
Jefferson’s truck hit a fire hydrant, and he shifted the truck into reverse
so he could inspect the
damage. Jefferson alleges that, at that time, Officer Lias shot him through the
driver’s side
window. Mr. Jefferson then drove off and went to the hospital to get treatm
ent for his gunshot
wound. Jefferson claims that the shooting caused nerve and tissue damage, and
shattered an arm
bone. A bone graft was done and a metal plate was inserted in his arm. He seeks
damages for his
pain and suffering.
111.

STANDARD OF REVIEW

A. Standard for Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. 104-134,

801-810, 110 Stat. 1321-66 to

§

1321-77 (Apr. 26, 1996) (“PLRA”), district courts must review complaints in those
civil actions
in which a prisoner is proceeding informa pauperis, see 28 U.S.C.

§

redress against a governmental employee or entity, see 28 U.S.C.

1915A(b), or brings a claim

with respect to prison conditions, see 42 U.S.C.

§

§

1915(e)(2)(B), seeks

1997e. The PLRA directs district courts to sua

sponle 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.

The current docket lists this defendant’s last name as “Luis.” Because the complaint
has
not been answered, I do not possess further information. For purposes of this opinio
n, then, I will
adopt the plaintiffs spelling of”Lias.”
2

“The legal standard for dismissing a complaint for failure to state
a claim pursuant to 28
U.S.C.

§ 191 5(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) (per
curiarn) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000))
; Mitchell v. Beard, 492 F.
App’x 230, 232 (3d Cir. 2012) (per curaim) (discussing 42 U.S.C.

§ 1997e(c)(l)); Courteau v.

United States, 287 F. App’x 159, 162 (3d Cir. 2008) (discussing 28
U.S.C.

§ 1915A(b)). That

standard is set forth in Ashcroft v. Iqhal, 556 U.S. 662 (2009) and
Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), as explicated by the United Slates Court
of Appeals for the Third
Circuit.
To survive the court’s screening for failure to state a claim, the compl
aint must allege

“sufficient factual matter” to show that the claim is facially plausible.
See Fowler v. UPMC
Shadyside, 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.” Belmont v. MB
mv. Partners, Inc., 708
F.3d 470, 483 n.17 (3d Cir. 2012) (quoting Iqhal, 556 U.S. at 678). “[A]
pleading that offers
‘labels or conclusions’ or ‘a formulaic recitation of the elements of
a cause of action will not
do.” Jqbal,556U.S. at678 (quotingTwombly, 550U.S. at555).
Pro se pleadings, as always, will be liberally construed. Nevertheless,
“pro se 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 omitted) (emph
asis added).
B. Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C.
his constitutional rights. Section 1983 provides in relevant part:

3

§ 1983 for certain violations of

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 within 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
unavailable.
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 v. Plains Twp.
Police Dep ‘t, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see
also West v. Atkins, 487
U.S. 42, 48 (1988).
IV.

DISCUSSION

A. George Lias
The Court construes Mr. Jefferson’s complaint against Lias as a claim of use
of excessive
force, Excessive force claims during arrests and investigatory stops are govern
ed by the Fourth
Amendment. See Rivas v. City ofPassaic, 365 F.3d 181, 198 (3d Cir. 2004)
(citing Graham v.
Connor, 490 U.S. 386, 395 (1989)). In analyzing an excessive force claim,
the defendant’s use of
tbrce is analyzed to determine whether it was objectively reasonable under
the circumstances.
See Graham, 490 U.S. at 397. That reasonableness inquiry “requires careful attentio
n 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.” IcL at 396.

4

Plaintiff alleges that he hit a fire hydrant while officers were attempting to pull
him over.
lie then backed up to survey the damage whereupon Lias shot him. For purpos
es of screening, I
must accept the allegations of the complaint as true, although they may of course
be disputed by
the defendant. The allegations of the complaint state an excessive force claim
against Lias that is
sufficient to get the complaint past the screening stage and put defendant Lias
to the burden of
filing an answer or other pleading in response.
B. F. Banos
F. Banos is named in the caption as a defendant, but the complaint is otherwise
completely silent as to Banos. To properly plead a Section 1983 claim, the compl
aint must allege
that the defendant was personally involved in the alleged deprivation of constit
utional rights. See
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); see also in re Baysid
e Prison Litig.,
No. 97-5 127, 2007 WL 327519, at *5 (D.N.J. Jan. 30, 2007). The personal involv
ement
requirement may be met by either personal direction of, or actual knowledge and acquie
scence
in, the allegedly tortious acts. See Rode, 845 F.2d at 1207; see also Baker v. Monro
e Twp., 50
F.3d 1186, 1190-91 (3dCir. 1995);Jacksonv. Camden Cnty. Corr. Facility,No.
12-7538, 2013
WL 1844636, at *3 n.1 (D.N.J. Apr. 29, 2013). The complaint makes such allegations
of
personal involvement—or indeed any allegations—against Banos. A fortiori, the
complaint fails
to meet the test of Twombly and Iqbal. Mr. Jefferson’s federal claims against Banos
will be
dismissed without prejudice for failure to state a claim upon which relief may be granted
.
To the extent that Mr. Jefferson may be intending to raise state law claims agains
t Banos,
I will dismiss them for lack of subject matter jurisdiction. The parties are not alleged
to be of
diverse citizenship. See 28 U.S.C.

§ 1332. Supplemental jurisdiction under 28 U.S.C. § 1367 is

declined because there are no federal law claims against Banos sufficient to withsta
nd the initial

5

screening of the complaint. See 28 U.S.C.

§

1367(c)(3); TR. v. Cnty. ojDelaware, No. 13-2931,

2013 WL 6210477, at *8 (E.D. Pa. Nov. 26, 2013) (declining supplemental jurisdiction
over
state law claims over one defendant where there are no viable claims against that defendant,
despite the fact that plaintiff may have pled plausible claims against another defend
ant) (citation
omitted); see also Nadal v. Christie, No. 13-5477, 2014 WL 2812164, at *8 (D.N.J. June
23,
2014).
C. Elizabeth Police Department
Mr. Jefferson also has named the Elizabeth Police Department as a defendant in the
caption of the complaint. The theory of liability as to this defendant is also not clear from
the
face of the complaint. Nevertheless, even liberally construing this pro se complaint, I cannot find
a viable claim.
First, the Elizabeth Police Department is not a “person” subject to liability under

§

1983.

A New Jersey police department is not an independent entity with the capacity to sue and be
sued, but only “an executive and enforcement function of municipal government.” N.J. STAT.
ANN.

§ 40A: 14-118.

Section 1983 uniformly holds that the proper defendant is therefore the

municipality itself, not the police department. See Jackson v. City qfErie Police Dep ‘1, 570 F.
App’x 112, 114 (3d Cir. 2014) (per curiam) (“We further agree with the District Court that
the
police department was not a proper party to this action. Although local governmental units may
constitute ‘persons’ against whom suit may be lodged under 42 U.S.C.

§

1983, a city police

department is a governmental sub-unit that is not distinct from the municipality of which it is a
part.”) (citation omitted); see also Bonenherger v. Plymouth Twp., 132 F.3d 20, 25 n.4 (3d Cir.
1997) (“Court “treat[s] the municipality and its police department as a single entity for purposes

6

of section 1983 liability”); Michaels v. Stale ofNew Jersey, 955 F. Supp. 315,
329 n.1 (D.N.J.
1996).
Second, even if the complaint properly named the municipality as a defendant, it
would
not state a claim upon which relief may be granted. A municipality cannot be held
vicariously
liable for the acts of its officers via respondeat superior. See Rode, 845 F.2d at
1207. The
complaint in this case fails to make any allegations of an unconstitutional policy or
custom that
would create municipal liability under Monell v. Dep ‘t ofSoc. Servs. New York City,
436 U.S.
658 (1978). See Hildebrand v. Allegheny Cnty., 757 F.3d 99, 110-11 (3d Cir. 2014)
(complaint
must plead facts to

sUpport

Monell liability); McTernan v. City of York, Pa., 564 F.3d 636, 658

(3d Cir. 2009) (stating to satisfy pleading standard for Monell claim, complaint “must
identify a
custom or policy, and specify what exactly that custom or policy was”); Karino v. Borou
gh of
Darby, No. 14-2797, 2014 WL 4763831, at *6 (E.D. Pa. Sept. 24, 2014) (same). The federal
claims against the Elizabeth Police Department (or the City of Elizabeth) will therefore
be
dismissed without prejudice for failure to state a Section 1983 claim upon which relief may
he
granted.
To the extent that the complaint may be attempting to raise state law claims against
Elizabeth or the Elizabeth Police Department, I decline to consider them for the same reason
s
discussed as to defendant Banos, supra.
V.

CONCLUSION

For the foregoing reasons the complaint shall be permitted to proceed as to defendant
Lias. The federal causes of action against defendants Banos and the Elizabeth Police Depart
ment
are dismissed without prejudice for failure to state a claim upon which relief can be granted
. The

7

Court declines to exercise supplemental jurisdiction over Mr. Jefferson’s state law claims against
defendants Banos and the Elizabeth Police Department. An appropriate order will be entered.
Dated: February 19, 2015

United States District Judge

8