WATERS v. THE NEW YORK CITY POLICE DEPARTMENT et al

Filing 58

OPINION. Signed by Judge Jose L. Linares on 3/9/16. (cm )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

EPHESIAN WATERS,

Civil Action No.: 15-2842 (JLL)

Plaintiff,

OPINION

NEW YORK CITY POLICE DEPARTMENT,
et a!,,
Defendants.
LINARES, District Judge.
Presently before the Court are two Motions to Dismiss Pro se Plaintiff Ephesian Waters
(“Waters” or “Plaintiff”)’s Second Amended Complaint. (ECF Nos. 46, 50). These Motions were
filed on behalf of Defendants the City of Newark, New Jersey, Newark Police Director Eugene
Venabie, Newark Chief of Police Anthony Campos, Former Newark Police Director Samuel A.
Demaio. and Former Newark Deputy Police Chief Ivonne Roman (collectively, “the Newark
Defendants”) (ECF No. 47, “Newark Mov. Br.”) and separately on behalf of Defendants New
York City Police Department (“NYPD”) Commissioner William J. Bratton, New York District
Attorneys Cyrus R. Vance, Jr., Robert Johnson, and Richard A. Brown, former New York District
Attorney Daniel M. Donovan, Jr. (sued herein as “Richard M. Donovan,”) and NYPD Lieutenant
Eugene Whyte (collectively “the New York Defendants”) (ECF No. 50, “NY Mov. Br. at 1).
Plaintiff has filed one opposition to the instant Motions (ECF No. 55), and the Defendants
filed letter replies (ECF Nos. 56, 57). Pursuant to Federal Rule of Civil Procedure 78, the Court
decides this matter without oral argument. For the reasons stated herein, the Court grants
the
Defendants’ motions to dismiss Plaintiff’s Second Amended Complaint.
1

PROCEDURAL HISTORY

This is the second time that this Court has had occasion to review Plaintiff’s Complaint.
Plaintiff first filed a Complaint on April 22, 2015. (ECF No. 1, “Compl.”). On October 19, 2015,
this Court issued an Opinion and Order granting motions to dismiss filed on behalf of the Newar
k
and New York Defendants.

(ECF No. 33, 34).

‘

The undersigned dismissed a number of

allegations with prejudice as time-barred, and dismissed additional allegations without prejudice
for failure to state a claim. The Court permitted Plaintiff sixty (60) days to file a new Complaint
that corrects the deficiencies identified in its Opinion. (ECF No. 34 at 2).
On December 18, 2015, the operative forty-six page Second Amended Complaint was
filed. (ECF No. 45, “SAC”). On January 29, 2016 and February 11, 2016, the Newark Defend
2
ants
and the New York Defendants, respectively, filed the instant Motions to Dismiss Plaintiff’s Second
Amended Complaint, arguing that Plaintiff’s claims should be dismissed for the same reasons this
Court previously dismissed his claims—that is, because the claims are either barred
by the
applicable statute of limitations or otherwise fail to state a claim for relief. Plaintiff submit
ted an
opposition brief on February 22, 2016 (ECF No. 55), and the Newark and New York Defend
ants
filed a one-page reply on February 26, 2016 and February 29, 2016, respectively (ECF No. 57).

On July 10. 2015, the Newark Defendants filed a Motion to Dismiss Plaintiffs Complaint
(ECF No. 7), and on July
20, 2015, Plaintiff filed a document entitled “Memorandum of Law in Opposition to Defendant’s
Motion to Dismiss”
(ECF No. 16, “Memorandum”). After reviewing the Memorandum, this Court determined
that same is more properly
construed as an amended complaint, and therefore administratively terminated the Newark
Defendant’s July 10, 2015
Motion to Dismiss and directed the Clerk of Court to file this Memorandum, along with
the original Complaint, in
one docket entry labeled “Amended Complaint.” (ECF No. 18; ECF No. 16, Amended
Complaint). It was this
Amended Complaint that the Court previously dismissed.
2
On January 8, 2016, Magistrate Judge Joseph Dickson granted Plaintiffs Motion to
Amend (ECF No. 39), and
Ordered that Plaintiff file the Second Amended Complaint containing an amended page
2 and additional pages 29 and
30 (ECF Nos. 39-3) within ten (10) days of the entry of that Order. (ECF No.41). However,
Plaintiff failed to comply
with Judge Dickson’s Order, and as such, Judge Dickson’s Court compiled and filed
the Second Amended Complaint
on Plaintiffs behalf (See ECF No. 54 at 1).

2

BACKGROUND

Plaintiffs Second Amended Complaint repeats the allegations made in the earlier
Amended Complaint and offers a few additional allegations. Plaintiff again alleges that over the
past thirty-eight (38) years she has been harassed by neighbors and others in her community and
that the New York and Newark Police Departments have failed to enforce the laws to prevent these
actions. (SAC at 8-10). Moreover, Plaintiff alleges that Defendants have actively engaged in
violating Plaintiffs civil rights. (Id.).
According to Waters, the New York Police Department “played a major role in inflicting
many of these offenses against [her]” by, among other things engaging in “surveillance that is
unjustifiable; negligence; monitoring of [her] mail; failure to investigate false reports against [her];
carrying out a scheme to deny [her] housing; phone tampering; and cast[ing] her in a false light.”
(Id. at 8-9). For example, Plaintiff alleges that in 1986 “[t]he New York City police and fire
departments help[ed] destroy [Plaintiffs] night club performances.”

(Id., Incident 27).

Specifically, “[a] former [unnamed] New York City Police Officer pretended to be a fan of [hers]
by signing along and clapping his hands, but his loud off key singing and other distractions
drowned [Plaintiff] out and destroyed [her] audition.” (SAC, Incident 28). Plaintiff lodges similar
allegations against the Newark Police Department. (Id. at 9-10). For example, Plaintiff alleges
that during the month of August 2015 “[a]n experiment was conducted which showed that
dogs
being used by stalkers were acts of intentional intimidation and harassment,” and that “[t]here

were

times when the Newark, NJ special police units witnesses some of these acts.” (Id., Incident
42B).
Plaintiff traces the “conspiracy problem” back to 1974, when she was “hired by the Glen
Cove Board of Education as the first black band director.” (Id. at 10). After Waters was
fired
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from that job, she allegedly “filed a civil rights complaint with the New York human
rights
division.” (Id.). Immediately thereafter, the conspiracy “began to manifest.” (Id.).
Plaintiff alleges federal jurisdiction under 42 U.S.C.
for conspiracy to interfere with civil rights) and 42 U.S.C.

§ 1985(3) (providing a cause of action

§ 1983 (providing a cause of action for

deprivation of civil rights under color of state law) and seeks relief under 42 U.S.C.
(prohibiting racial discrimination in employment).

(Id. at 2).

3
§ 198 1(a)

This Court, having liberally

construed Pro se Plaintiff’s Complaint, as it is obliged to do, see, e.g., Higgs v. Atry
Gen. of the
United States, 655 F.3d 333, 339 (3d Cir. 2011), also construes the Second Amend Compl
ed
aint
as an attempt to seek relief under 42 U.S.C.

§ 1986 (providing a cause of action for failure to

prevent a 1985 violation).
4

LEGAL STANDARD
To withstand a motion to dismiss for failure to state a claim, “a complaint must
contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausib
le on its face.”
Ashcroft

i’.

Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell
Ati.

Corp. v. Twoinbly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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.” Iqbal
556 U.S. at
678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks
for more than
a sheer possibility that a defendant has acted unlawfully.” Id. Although court
a
is to liberally

Claims for violation of § 1981 claims are only actionable under section 1983.
McGovern v. City ofPhiladelphia,
554, F.3d 114, 116 (3dCir. 2009).
Plaintiff alleges additional constitutional rights violations under 18 U.S.C.
2511 (interception and disclosure of
wire, oral, or electronic communications prohibited), 42 U.S.C. 3601 (denial §
of fair housing), and violations of Title
§
VII of the Civil Rights Act of 1964 for discrimination based on religion. (SAC
at 43). However, Plaintiff cannot state
a claim under these statutes for the same reasons that Plaintiff’s Section 1983,
1985 and 1986 claims are deficient.
That is, Plaintiff has failed to allege any constitutional violations committed
by any Defendants.
‘

4

construe the Complaint of a Pro Se litigant in his favor, Higgs v. Atty Gen. of the United
States,
655 F.3d 333, 339 (3d Cir. 2011), the litigant must nevertheless plead sufficient facts
to support
the causes of action he alleges. Higgins v. Beyer, 293 F.3d 683, 688-89 (3d Cir. 2002).
To survive dismissal of a 1983 claim, a plaintiff must allege “two essential elemen
ts: (1)

that the conduct complained of was committed by a person acting under color of state law;
and (2)
that the conduct deprived the plaintiff of rights, privileges, or immunities secured
by the
Constitution or laws of the United States.” Schneyder v. Smith, 653 F.3d 313, 319
(3d Cir. 2011).
In order to survive dismissal of a 1985 claim, a plaintiff must allege:
(I) a conspiracy; (2) motivated by racial or class based discriminatory animus design
ed to
deprive, directly or indirectly, any person or class of person to the equal protection of
the
laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property
or
the deprivation of any right or privilege of a citizen of the United States.
Lake v, Arnold, 112 F.3d 682, 685 (3d Cir. 2011) (citing United Brotherhood of Carpen
ters and
Joiners of America, Local 610 v. Scott, 463 U.S. 825, 828-29 (1983)). A claima
nt alleging a
violation of section 1986 must first satisfy the elements of a conspiracy under section
1985, and
must also show that a person with knowledge of the conspiracy and the “power to preven
t or aid
in preventing the commission of the same,” has neglected or refused to do so. Robiso
n v.
Canterbury Village., Inc., 848 F.2d 424, 431 n. 10 (3d Cir. 1988); 42 US.C.

§ 1986.

ANALYSIS
A. The Majority of Plaintiff’s Claims are Properly Dismissed as Untimely

Where a pleading alleges claims that are barred by the applicable limitations
period, such
allegations are properly dismissed for failure to state a claim. See, e.g., Hunter
son v. Disabato,
et.al, 244 Fed. App’x 455, *1 (3d Cir. 2007) (unpublished) (citing Jones v.
Bock, 549 U.S. 199,
215 (2007)). In this Court’s earlier Opinion granting Defendants’ prior motion
s to dismiss, the
5

undersigned explained that the majority of Plaintiffs allegations were barred by the applicable
statute of limitations. (See ECF No. 33 at 6-7). Specifically, the Court noted that: New
Jersey
applies a two year statute of limitations to 1983 and 1985 claims, see Cito v. Bridgewater Tp.
Police Dep ‘t., 829 F.3d 23 (3d Cir. 1989); that New York applies a three year statute of limitat
ions
to same, see Paige v. Police Dep’t of City ofSchenectady, 264 F.3d 197, 199 (3d Cir. 2001);
and
that all actions filed under Section 1986 are subject to a one year statute of limitations, 42
U.S.C.

§ 1986. (Id.) (citations omitted). Accordingly, the Court dismissed as untimely the majority of
the “Incidents” alleged in Plaintiffs Amended Complaint, which dated as far back as the
1970s.
(Id.).
Notwithstanding this explanation, Plaintiffs Second Amended Complaint contains similar
allegations dating as far back as the 1 970s. For example, Plaintiff alleges, in Incident 2, that
from
l977l978 Plaintiff was stalked by “neighbors and people in the community.” (SAC
at 13).

Plaintiffs original Complaint was filed on April 22, 2015. Thus, per the relevant
limitations
periods, all allegations of 1986 violations pre-dating April 22, 2014 are time-barred.

All

allegations sounding in 1983 and 1985 violations occurring in New Jersey and predating April
22,
2013, and those occurring in New York prior to April 22, 2012, are similarly barred
by the
applicable limitations periods. Accordingly, the following “Incidents” identified in
Plaintiffs
Second Amended Complaint (ECF No. 45) are properly dismissed as time-barred: 1-5,
6B-9B,
9D-9E, I lA15A, 16A-16D, 18, 20-22B, 26-34, 36-38, 40-41, 43, 45-46.
B. Plaintiff’s Remaining Claims are Dismissed for Failure to State a Claim

Defendants argue that to the extent Plaintiffs claims are not time-barred, they
are
nevertheless subject to dismissal for failure to state a claim. (Newark Mov. Br. at
14-18; NY Mov.
Br, at 5-7, 9-12). The Court agrees.

6

In its earlier Opinion dismissing Plaintiffs Complaint, this Court found that Plaintiff had
failed to state a claim against any of the Defendants because she “failed to show how the named
Defendants were personally involved in the factual allegations she asserts.” (ECF No. 33 at
7-8).
Indeed, the Court noted that Plaintiffs grievances lie primarily with “community memb
ers and
her neighbors; not the Newark or New York Police Departments.” (Id. at 7). The Court further
stated that “[tjo the extent Plaintiff has alleged that the New York and Newark Police Departments
were involved in the events alleged, Plaintiff does not identify the specific Defendants alleged
to
be involved, nor does Plaintiff provide any identifying information as to the unnamed individuals.”
(Id.). The same is true of Plaintiffs Second Amended Complaint.

That is, Plaintiff has once

again alleged that the New York and Newark Police Departments were involved in the events
alleged; however, with few exceptions, Plaintiff fails to identify the specific Defendants alleged
to
be involved.
To the extent Plaintiffs allegations do identify a particular Defendant, Plaintiff
nevertheless fails to allege the remaining elements of the civil rights claims she
asserts.
Specifically, Plaintiff has not sufficiently plead that her civil rights have been violate
d, nor that
Defendants are involved in a conspiracy to violate her civil rights, as required by the
relevant
statutes. See 42 U.S.C.

§ 1983, 1985, 1986. For example, in Incidents 24A, 24B, and 25, Plaintiff

alleges that Defendants Demaio, Roman, and Bratton, respectively, never responded
to her letters.
(SAC at 2 8-29). However, as this Court has already informed Plaintiff, mere “[fjailure
to respond
to a letter does not amount to a violation of one’s constitutional rights.” (ECF No. 33
at 8).
Accordingly, this Court finds that Plaintiff has again failed to state a plausible claim
for
relief. Moreover, it is apparent that Plaintiffs Second Amended Complaint fails to
correct any of
the deficiencies identified by this Court in its earlier Opinion dismissing Plainti
ff’s Complaint.

7

The Court previously dismissed Plaintiffs Amended Complaint without prejudice. As Plaintiff
was not able to amend her Complaint to state a claim for relief and because Plaintiffs Second
Amended Complaint suffers from the exact same deficiencies as the Amended Complaint, it would
be futile to permit Plaintiff yet another opportunity to file a new pleading. See Grayson v. Mayveiw
State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (“[T]he court must inform the plaintiff that he has
leave to amend within a set period of time, unless amendment would be inequitable or futile.”).
Thus, the Court grant’s Defendants’ request to dismiss the Second Amended Complaint with
prejudice.
CONCLUSION

For the reasons stated above, this Court hereby grants both the Newark and New York
Defendants’ Motions to Dismiss Plaintiffs Second Amended Complaint with prejudice. An
appropriate Order accompanies this Opinion.
IT IS SO ORDERED.
DATED:

March

,2016
2

JOL. LINARES
$fiTED STATES DISTRICT JUDGE

8