SHARROCK v. GRAZIADIO
OPINION. Signed by Judge Kevin McNulty on 4/11/2016. (seb)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 15-cv-1877 (KM)
FRANCO GRAZIADIO, et al.,
KEVIN MCNULTY, U.S.D.J.:
The plaintiff, Shawn Sharrock, has brought this action against a number
of police officers, based on a number of separate incidents. Now before the
Court are two motions (ECF nos. 8, 9) to dismiss the complaint, pursuant to
Fed. R. Civ. P. 12(b)(6), for failure to state a claim. No opposition to the motions
has been filed. For the reasons stated herein, the motions will be granted.
The motions to dismiss are unopposed. Even if granted, however, these
initial motions, directed to the original complaint, would result at most in a
dismissal without prejudice. See Aiston v. Parker, 363 F.3d 229, 235 (3d Cir.
2004). I therefore do not invoke the Poulis factors that would apply, for
example, to a dismissal with prejudice for failure to comply with court orders or
rules. See Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d
Cir. 1984). Nevertheless, it is quite clear that the Court may not simply grant
the motions as unopposed, but must consider whether the complaint sets forth
a cause of action for purposes of Fed. R. Civ. P. 12(b)(6). Stackhouse v.
Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991).
Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in
part, if it fails to state a claim upon which relief can be granted. The defendant,
as the moving party, bears the burden of showing that no claim has been
stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a
Rule 12(b)(6) motion, a court must take the allegations of the complaint as true
and draw reasonable inferences in the light most favorable to the plaintiff.
Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (traditional
“reasonable inferences” principle not undermined by Twombly, see infra).
Federal Rule of Civil Procedure 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 (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
570; see also Umland v. PLANCO Fin. Seru., Inc., 542 F.3d 59, 64 (3d Cir. 2008).
That facial-plausibility standard is met “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) (citing Twornbly, 550 U.S. at 556). While “[t]he plausibility standard
is not akin to a ‘probability requirement’.
it asks for more than a sheer
possibility.” Iqbal, 556 U.S. at 678.
Where, as here, the plaintiff is proceeding pro se, the complaint is “to be
liberally construed,” and, “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Pardus, 55]. U.S. 89, 93-94 (2007). 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). “While a litigant’s pro se
status requires a court to construe the allegations in the complaint liberally, a
litigant is not absolved from complying with Twombly and the federal pleading
requirements merely because s/he proceeds pro Se.” Thakar v. Tan, 372 F.
App’x 325, 328 (3d Cir. 2010) (citation omitted).
The allegations of the Complaint (“Cplt.”, ECF no. 1) have not been tested
by any fact finder. They are assumed to be true solely for purposes of these
motions to dismiss. The complaint does not state what legal claim is being
asserted, or establish a basis for federal jurisdiction. The cover sheet
designates the case as “Other Civil Rights.” It cites 42 U.S.C.
§ 14141, an
inapplicable statute, but I will assume that Plaintiff intends to assert a claim of
deprivation of constitutional rights under 42 U.S.C.
Complaint page 1 (“Clifton Officer pull over”)
Page 1 of the complaint (there are no numbered paragraphs) is directed
against an unnamed officer, who apparently is Franco Graziado. On March 24,
2013, Plaintiff was driving, when a police car came up behind him and turned
on its flashers. The police car came up beside plaintiff’s car, the officer yelled at
him for not getting out of the way, and the police car then passed him. Plaintiff
apparently snapped a photo and began to chase the police car. The police
officer then pulled plaintiff over, yelled at plaintiff for tailgating the police car,
and told plaintiff he was lucky the officer didn’t have his gun drawn. “Threaten
me with feeling tickets including air freshener.” The officer let plaintiff off with
a warning but declined to shake his hand. Three weeks later, plaintiff came in
to fill out a complaint and was “harassed.”
Accepting these allegations as true, I can still discern no constitutional
claim against the unnamed officer. Flashing lights to signal that an automobile
should get out of the way violates no constitutional right. Yelling at the Plaintiff
or declining to shake his hand, however impolite, violates no constitutional
right. Indeed, there is not even a minimal basis for a Fourth Amendment claim,
absent an actual seizure. Graham v. Connor, 490 U.S. 386, 109 5. Ct. 1865
(1989) (no seizure where police were chasing, but had not caught or stopped,
the defendant). In the end, plaintiff alleges, he was briefly stopped. But again,
confronting the plaintiff and issuing a warning for tailgating (let alone
interfering with the police) violates no constitutional right. N.J. Stat. Ann.
39:4-89 (“follow[ing} another vehicle more closely than is reasonable and
prudent”). See United States v. Defin-Colina, 464 F.3d 392, 396—98 (3d Cir.
2006) (brief investigative traffic stop requires only reasonable suspicion that a
traffic violation has occurred).
Complaint p. 2 (“Elmwood Park officers”)
At an unspecified time, Plaintiff was at his son’s wrestling match. His son,
undefeated until then, was disqualified. Plaintiff had in the past “had it out”
with the coaches, who also are EMTs, firefighters, and police. On this occasion,
Plaintiff “became upset at the ref and coaches” and was “told to leave.” At some
point, officers surrounded Plaintiff and his family. Plaintiff got in his car and,
as he drove past the officers, took a video of them with his cell phone. “Officer
86” got angry and pulled Plaintiff over for using a cell phone while driving. The
officer approaching on the other side had his hand on his gun. When Plaintiff
objected, the officer replied that he did not know who was in the car. Plaintiff
was issued three tickets. Plaintiff identifies the officers as Sgt. Pasquale and
Again, taking the allegations at face value, I can discern no claim.
Plaintiff admits to becoming upset at a sporting event, to the point that he was
asked to leave. The police approached, but did not detain him. Plaintiff admits
to recording with his cell phone at the same time he was driving, and being
issued a ticket for it. There being a valid objective basis for the ticket, it is
immaterial whether the officer was subjectively angry at Plaintiff for some other
reason. See Delfirt-Colina, 464 F.3d at 396—98 (traffic stop requires only
reasonable suspicion that a traffic violation has occurred, based on objective
facts, even if officers had some other subjective motivation); see also Whren v.
United States, 517 U.S. 806, 810, 116 S.Ct. 1769 (1996) (claim of “pretext”
irrelevant where objective facts justified stop).
Complaint pp. 3-4 (“Lodi officers”)
These pages of the complaint relate a number of events, but I focus on
those that seem central to Plaintiff’s potential claims.
An officer ticketed Plaintiff for cutting through a private parking lot
(apparently a veterinarian’s office) to avoid a traffic light. Plaintiff objected that
if he had to go to the vet, and the vet were open, it would be a legal turn. When
Plaintiff approached the officer’s car on foot to continue the argument, the
officer sped away, nearly running over his foot. This, too, falls under the rubric
of a legitimate traffic stop. Defin-Colina, supra. See N.J. Stat. Ann.
(“Operation of motor vehicles on public or private property to avoid traffic
signals or signs prohibited”).
Sometime later, when Plaintiff went to the police station to complain, two
officers (Sgt. Perrelli and Sgt. Mobilio) allegedly cursed at him. Lieut. Scorezetti
attempted to show Plaintiff his officer handbook, which he said would explain
what the traffic violation had been. Some delays in taking Plaintiff’s complaint
followed. Scorezetti allowed that Mobilio might have been unprofessional in
getting so angry, but said Plaintiff had been unclear about what he wanted.
Plaintiff alleges that racism was involved, as he is an African American man.
On 3/15, Plaintiff received a call to come to the station and make a
statement. Two officers, Scorezetti and Capt. Schrieks, were present. He was
invited inside an office while they set up a “recording room” (to take a
statement, apparently). He was asked, and then searched, for keys, phones, or
recording devices “for officer safety.” I take note, again looking only at the
allegations of the complaint, that the officers could reasonably have thought
(correctly or not) that the Plaintiff was angry and excitable.
The officers’ unpleasant tone violates no constitutional right. Without
any more facts, I cannot find based on these allegations that the stationhouse
security frisk for weapons, keys, or recording devices violated any right. A
person voluntarily entering a nonpublic, secure area of a stationhouse, may
expect to be frisked for weapons as a condition of entry. Nothing in the
complaint establishes that the plaintiff was not free to simply leave in response
to the officers’ request, or to speak to them in the lobby or on the street.
As stated, I find no adequate allegation of a constitutional violation. A
fortiori, the officers’ acts are shielded by qualified immunity.
“[Q]ualified immunity shields government officials from civil liability as
long ‘as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”
McGreevy v. Stroup, 413 F.3d 359, 364 (3d Cir. 2005) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). In analyzing whether qualified immunity
attaches to a government official, a court must “first determine whether the
facts, and inferences drawn therefrom, taken in the light most favorable to the
plaintiff, establish that the official’s conduct violated a constitutional right.”
McGreevy, 413 F.3d at 364 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). If
that first step is satisfied, the court must then “determine whether, as a legal
matter, the right that the defendant’s conduct allegedly violates was a clearly
established one, about which a reasonable person would have known.”
Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000).
A right is “clearly established” when the “contours of the right” are
“sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Saucier, 533 U.S. at 202. A clearly established right
is not limited to one that “has previously been held unlawful.” Hope v. Pelzer
536 U.S. 730, 739 (2002). Instead, “it merely means that in light of preexisting
law, the unlawfulness of the official’s conduct was reasonably and objectively
At any rate, where the police are not searching for evidence, the “special needs”
exception permits such a frisk for legitimate security purposes. See New Jersey v.
T.L.O.,469 U.S. 325 (1985) (school may search students’ effects for evidence of
infractions); O’Connor v. Ortega, 480 U.S. 709, 725 (1987) (workplace searches);
Mac Wade v. Kelly, 460 F.3d 260, 263 (2d Cir. 2006) (upholding bag search as
condition of entering subway).
apparent.” McGreevy, 413 F.3d at 366 (citing Wilson v. Layne, 526 U.S. 603,
615 (1999)). The knowledge of a reasonable person “js measured by an
objective standard; arguments that the defendants desired to handle or
that they had handled
the incidents properly are
irrelevant.” Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726 (3d Cir.
1989) (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)). Thus, the party
asserting that qualified immunity applies is “entitled to [it] if reasonable
officials in the defendants’ position at the relevant time could have believed, in
light of clearly established law, that their conduct comported with established
legal standards.” Stoneking, 882 F.2d 726.
Although qualified immunity often requires development of a factual
record, here it does not. As noted above, the first prerequisite—a violation of a
constitutional right—is lacking. Setting that aside, the second prerequisite—
that such a violation be clear and well established—is likewise lacking. The
facts, even as alleged in the complaint, establish that an officer could
reasonably have concluded that the traffic stop, issuance of tickets, and
protective frisk for weapons at the police station were justified and did not
violate any clearly established constitutional right.
For the foregoing reasons, the motions to dismiss filed by defendants are
GRANTED. Because this is an initial dismissal the court will, as is its practice.
dismiss the complaint WITHOUT PREJUDICE to the filing, within 30 days, of
an amended complaint. If no such amended complaint is filed within that time,
this order shall become final. An appropriate Order will issue.
Dated: April 11, 2016
United States District Ju4jV
The officers have much more to say about the facts, but I set that aside for
purposes of this motion.
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