WIDMAIER v. CITY OF NEWARK et al

Filing 78

OPINION. Signed by Judge John Michael Vazquez on 4/29/2019. (dam, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

NANCY F. WIDMAIER AND VINCENT A.
WIDMAIER, individually and as administrator
•
ad prosequendum for the estate of MICHAEL
WIDMAIER,

Civil Action No. 16-2533
OPINION

PlaIn tUJA’,
V.

CITY OF NEWARK, et al,
Defendants.

John Michael Vazguez, U.S.D.J.
This matter comes before the Court by way of the motion to dismiss filed by the City of
Newark (“Newark” or the “City”); former Newark Police Chief Eugene Venable; Detective Silas
Smith, Jr.; Lieutenant John Rodrigues; Detective Rui Domingues; Sergeant Joseph Frost; and
Anthony Campos. D.E. 73. Plaintiff is now deceased. As a result, Nancy F. Widmaier and
Vincent A. Widmaier (“Plaintiffs”) are now Plaintiffs as administrators ad prosequendum of
Michael Widmaier’s estate. Plaintiffs oppose the motion. D.E. 76. The Court reviewed the
submissions made in support and opposition to the motion and considered the motions without
oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b).’ For the reasons that follow,
Defendants’ motion is GRANTED in part and DENIED in part.

The Defendants’ brief in support of their motion to dismiss, D.E. 73-2, will be referred to as
“Defs. Br.” and Plaintiffs’ memorandum in opposition, D.E. 76, will be referred to as “Plfs. Opp.”.

INTRODUCTION

I.

The Court previously discussed at length in deciding a prior motion to dismiss. D.E. 54.
As a brief overview, Plaintiffs allege that on July 21, 2015. after Michael Widmaier fled from a
Jeep on foot, the driver of the Jeep caught up with him, struck him with the Jeep, knocked him to
the ground. and drove directly over his leg before coming to a stop. Fifth Am. Compl. (tAC”)

¶flJ 21-36.

The driver opened the door, looked down and saw Widmaier under the car, then put the

car in reverse and drove over his torso. Id. ¶]j 36-39. The driver of the Jeep was later identified
as Defendant Newark Police Detective Silas Smith. Id.

¶ 40.

Plaintiffs assert Section 1983, New

Jersey constitutional, and tort law claims against multiple Newark police officers, the City of
Newark, and the Newark Police department because this alleged wrongM conduct.
On June 14, 2017, this Court dismissed every Defendant in this matter except for Defendant
Silas Smith, Jr. for failure to state a claim. D.E. 54, 55. The claims against the Newark Police
Department were dismissed with prejudice.

Widmaier, however, was provided with an

opportunity to file an amended pleading to reassert claims against the other Defendants. kL On
September 25, 2017, Nancy F. Widrnaier and Vincent A. Widmaier filed a Fourth Amended
Complaint as administrator ad

prosequendum

for the estate of Michael Widmaier because

Widmaier passed away. D.E. 61. Defendants filed a motion to dismiss, and Plaintiffs filed a crossmotion for leave to file a Fifth Amended Complaint. On May 17, 2018, Plaintiffs’ cross-motion
was granted and Defendants’ motion to dismiss was denied without prejudice. D.E. 67. As a
result, Plaintiffs filed the FAC.
As will be discussed in detail below, the FAC includes a number of new factual allegations
regarding the July 21 incident as to Plaintiffs’ claims against the City and supervisors within the
Newark Police Department. D.E. 72. Defendants subsequently filed the instant motion to dismiss

pursuant to Rule 12(b)(6) seeking to dismiss the FAC in its entirety except as to the claims asserted
against Defendant Smith.2 D.E. 73.
II.

LEGAL STANDARD
For a complaint to survive dismissal under Rule 12(b)(6). it must contain sufficient factual

matter to state a claim that is plausible on its face. Ashcrofi v. Iqbal. 556 U.S. 662, 678 (2009)
(quoting Bell AtE Coip.

ic

Twomblv. 550 U.S. 544. 570 (2007)). A claim is facially plausible

“when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id.

Further, a plaintiff must al1ege

sufficient facts to raise a reasonable expectation that discovery will uncover proofof her claims.”

Connally

i’.

Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016). In evaluating the sufficiency of

a complaint, district courts must separate the factual and legal elements.

Fouler

i’.

UPMC

Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements of the elements of a claim are
legal conclusions, and therefore, not entitled to a presumption of truth. Thatch v. Milberg Factors,
Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however, “must accept all of the complaint’s
well-pleaded facts as true.” Fowler, 578 F.3d at 210.
Much of Plaintiffs’ opposition to this motion is premised on a belief that discovery will
uncover proof of their claims. See, e.g.. Pit’s. Opp. at 29-30. In so doing. PlaintitTh appear to he
arguing that this Court should apply the notice pleading standard as derived from Conlçv

i.

Gibson.

355 L.S. 41 (1957). Since Tirom h/v and Iqhal. however, the notice pleading standard is no longer

2

Although Defendant Smith is included amongst the moving Defendants, Defendants clarify in
their brief that they are not actually seeking to dismiss any claims asserted against him. Defs. Br.
at I. As discussed, the Court denied the first motion to dismiss as to Smith and nothing in the FAC
changes the claims asserted against him. As a result, the Court considers this motion to dismiss
only as to the City, Venable, Roddgues. Domingues, Frost and Campos. As a result, the reference
to Defendants in this Opinion does not include Smith.
j

in effect in federal court. Rather, claims must he supported by sufficicnt factual allegations fi’om
the outset. See Twomh/i’, 550 U.S. at 555. Jqbal. 556 U.S. at 678. Thus, the Court rejects Plaintiffs’
argument that certain claims should survive this motion to dismiss solely based on thc assumption
that discovery will reveal the necessary factual support.
III.

ANALYSIS
1. CLAIMS AGAINST THE CITY3 AND THE SUPERVISORY
DEFENDANTS

a.

Monet! Claim (Count III)

Defendants argue that Count Ill. a Alone/I liability claim,4

must

be dismissed because

Plaintiffs fail to identify a municipal policy or custom that led to Widmaier’s injuries. Defs. Br.
at 2 1/25. A municipality cannot be liable under Section 1983 for the acts of its employees on the

basis of respondear superior. Thomas

ic

Cumberland County. 749 F.3d 217, 222 (3d Cir. 2014)

(citing Alone/I v. Dept of Soc. Sen. of N. IC, 436 U.S. 658. 690-91(1978)). Rather, to hold a

Defendants argue that Plaintiffs’ claims against the Newark Police Department must be dismissed
because a city and its police departments cannot be sued separately, and because the claims against
the Newark Police Department were dismissed with prejudice. Defs. Br. at 14-15. Plaintiffs state
that they are no longer asserting claims against the Police Department. Plfs. Opp. at I.
Accordingly, Defendants’ motion to dismiss to the extent it seeks dismissal of the Newark Police
Department is denied as moot. The police department has already been dismissed with prejudice.
Plaintiffs counsel should have rectified this issue before filing the FAC.
Defendants also maintain that to the extent Plaintiffs seek to assert conspiracy claims
pursuant to 42 U.S.C. § 1985 and § 1986, these claims must be dismissed because Plaintiffs fail to
plead facts demonstrating that a conspiracy existed, or Defendants’ actions were motivated by a
racial animus. Defs. Br. at 27-29. In their opposition, Plaintiffs state that the FAC does not
mention Section 1985 or 1986. Plfs. Opp. at 24. Accordingly, the Court does not construe the
FAC as asserting any conspiracy claims and Defendants’ motion to dismiss as to any conspiracy
claims is denied as moot.
In Monet/i’. Dep ‘t Soc. Sen’s. of N. Y.C. “the Supreme Court established that municipalities and
other government entities were ‘persons’ subject to liability under 42 U.S.C. § 1983.” Noble v.
City of Camden, 112 F. Supp. 3d 208, 221 (D.N.J. 2015) (citing MonelI, 436 U.S. 658, 690-92
(1978)).

‘

4

municipality liable, a plaintiff must demonstrate that the violation of rights was caused by a
municipal policy or

custom.

Id In addition, the Third Circuit recently clarified that a Alone/I

claim may also be premised on a munieipaIit’s failure to train. For a failure to train claim, a
plaintiff “must demonstrate that a city’s failure to train its employees ‘reflects a deliberate or
conscious choice:” Esrare at Roman

(Wv ofAeuw& 914 F.3d 789. 798 (3d Cir. 2019). For

claims involving police officers, a failure to train can only serve as a basis for Section 1983 liability
where the failure

“amounts

to deliberate indifference to the rights ofpersons with whom the police

come into contact.” 14. (quoting Cm’ ofCa;non u.

HanLv.

489 U.S. 378, 388 (1989)). DcliberaLe

indifference is plausibly pled by showing that “(1) municipal policy makers know that employees
will confront a particular situation, (2) the situation involves a difficult choice or a history of
employees mishandling, and (3) the wrong choice by an employee will frequently cause
deprivation of constitutional rights.” 14. (quoting Doe

i’.

Lazerne County, 660 F.3d 169, 180 (3d

Cir. 2011) (internal brackets omitted)).
In Roman. the plaintiff’s More/I claim alleged that Newark was liable, with respect to
police searches, because it failed to train police officers and engaged in a pattern or practice of
constitutional violations. Id, at 797. The plaintitIs claims were based in part on a consent decree
between thc Department of Justice and the City of Newark that pertained to police misconduct.
14. at 799. The Third Circuit determined that the plaintiff adequately pled failure to train and
unconstitutional custom Monell claims. The court determined that the plaintiff’s allegations as to
an improper search of his apartment, coupled with the consent decree, which addressed similar
police misconduct, provided sufficient factual support to survive a motion to dismiss. Id at 799801. Although the consent decree was not in place when the events giving rise to Roman’s claims
occurred. the court determined that it “may fairly infer that the problems that led to [the consent

5

decree] were occurring during the time of (Roman’s] allegations and for some time before that.”
Id. at 799. Consequently, the Third Circuit determined that the consent decree “foftifie[d]” the
plaintiffs Alone!! claims “because it acknowledges a pattern or practice of conduct by the Newark
Police Department that deprives individuals of rights, privileges, and immunities secured by the

Constitution.” Id. (internal quotation omitted). Finally, the Third Circuit determined that these
violations were widespread and causally linked to the plaintiffs allegations because the Police
Department was aware of complaints but rarely acted upon them. Id.
Plaintiffs’ Alone!! allegation resembles the claim in Roman. Plaintiffs’ claim is premised
on Newark’s custom of failing to adequately train its police officers as to the use of force and
pedestrian stops. Specifically, Plaintiffs allege that Newark failed to adopt policies and training

programs to ensure that the Newark Police Department and its officers complied with state and
federal law as well as the Constitutional rights of individuals in custody or being pursued by
Newark police officers. FAC ¶ 113. Further, Plaintiffs allege that Newark failed to train its police

officers as to the use of excessive force, or to take actions to prevent injury and death due to the
use of excessive force. Id. ¶ 115. While not as clear, PlaintifTh also appear to allege that there was
a custom within the Newark Police Department of unconstitutional and discriminatory behavior
surrounding arrests and the use of force. Id.

¶ 147.

Like Roman, Plaintiffs’ Alone!! claim relies heavily on a July 22, 2014 Department of

Justice, Civil Rights Division Investigative Report of the Newark Police Department (the “DOJ
Report”) and the resulting Consent Decree. To that end, the FAC asserts new factual allegations
regarding the DOJ Report. See FAC ¶ 117. Defendants respond that Plaintiffs cannot rely on the
DOJ Report. Defendants maintain that because Newark entered into a consent decree to correct

the deficiencies outlined in the DOJ Report, the Report is settlement material, Defs. Br. at 25.

6

Defendants provide no legal support for this argument, and the Court is not aware of any reason
why it cannot consider Plaintiffs’ factual allegations that address the DOJ Report.

f

Roman,

914 F.3d at 796 (stating that court could consider undisputedly authentic settlement material that
plaintiffs claims were based upon). Accordingly, the Court will consider Plaintiffs’ allegations
that pertain to the DOJ Report.
Pertinent to Plaintiffs’ claims, the DOJ Report thund reasonable cause to believe that
approximately 75% of reported pedestrian stops by the Newark Police Department violated the
Fourth Amendment, and that unjustified and excessive force occurred in more than 20% of the
incidents reviewed. FAC ¶j 119, 122. Moreover, during the review period, Newark police officers
“made thousands of stops of individuals described as milling, loitering, or wandering. without any
indication of reasonable criminal activity’,”

fiL

¶

120.

Plaintiffs allege that the DOJ report

“concluded that at least part of the pattern of unlawful stops could be traced to Police Department
training and policies.” Id. ¶1129. In addition, Newark Police Officers are required to complete a
“Field Inquiry Report,” which among other things, documents the legal support for the stop. But
the DOJ Report found that the Police Department’s use of such reports was not consistent with its
policy. Id.

¶{

124-26.

The DOJ Report also found reasonable cause to believe that the Police Department engaged
in a pattern or practice of unconstitutional use of force. The DOJ Report stated that the Police
Department failed to refer serious use of force cases to the Essex County Prosecutor’s Office for
review, that it did not hold police officers accountable for failing to document the use of force, and
that this inadequate supervision contributed to the pattern of Constitutional violations. kL ¶j 132—
36. Finally, Plaintiffs contend that the City. Campos. Domingues, Frost and Venable knew of and
helped to continue the customs and practices documented in the DOJ Report, and that these policies

7

proximately caused Widmaier’s injuries, hi A149-64.
The FAC adequately asserts a Mont’!? claim. As discussed in the prior Opinion. Plainti iTs
sufficiently alleged that Smith attempted to stop Widmaier without any indication that criminal
activity was occurring, and that Smith used unlawful and unreasonable force on Widmaier after
Widmaier had already been knocked to the ground by Smith’s Jeep. In addition. Plaintiffs alleged
that Defendants failed to con-cctly document the incident and failed to take proper disciplinary
action with respect to Smith. Opinion at 9—15. The FAC asserts additional allegations that neither
a use of force or field inquiry report were completed after the incident, and that there was no
internal investigation. FAC ¶ 150—55. Like Roman, the wrongdoing doing set ftwth in the DOJ
Report covers the same type of wrongful conduct that Plaintiffs allege occurred here, Thus, the
Court can infer that the alleged Constitutional violations surrounding Widmaier’s arrest had been
occurring within the Newark Police Department for some time, were widespread within the Police
Department. and were causally linked to Widmaier’s injuries.

Sec Roman, 914 F.3d at 799.

Consequently, Plaintiffs plead a failure to train and municipal custom claim as to Newark.
Defendants’ motion to dismiss is denied on these grounds.
Plaintiffs appear to assert their Alone?! claim against all Defendants. Mont’?? liability,
however, pertains to government entities not individuals.

See Alone?!. 436 U.S. at 690—95

(explaining that local governing units are subject to Section 1983 liability): tAt cv ret LALK.
Lu:erne Civ. Juvenile Dci.

Op.,

i’.

372 F.3d 572. 586 (3d Cir. 2001) .As a result. Count Three is

dismissed as to the remaining Defendants.
b.

Supervisory Liability (County X)

Defendants also contend that Plaintiffi’ supervisory liability claim against the City. Frost.
Rodrigues, Venable, and Campos must he dismissed because Plaintiffs fail to plead that these

S

Defendants were personally involved in the alleged wrongdoing. Defs. Br. at 35-36. As discussed,
a municipality cannot be liable tinder Section 1983 fir the acts of its employees on the basis of
respo;zdcar superior.

ihamus.

749 F.3d at 222 (citing MonelL 436 U.S. at 690-91). Accordingly.

Count X is dismissed as to the City.
There are two cognizable theories of supervisory liability tbr Section 1983 claims. First.
factual allegations that suggest “personal direction or of actual knowledge and acquiescence” may

he sufficient to establish the necessary involvement thr a supervisory liability claim. Id. At least
prior to Iqbal,5 a plaintiff asserting such a supervisory liability claim must (I) identify a specific
supervisory practice that the defendant failed to employ: (2) “contemporaneous knowledge of the
offending incident or knowledge of a prior pattern of similar incident”; and (3) “circumstances

under which the supervisor’s inaction could be found to have communicated a message of
approval.” Janouski v. Lelloc*. 649 F. App’x 184. 187 (3d Cir. 2016) (quoting CII. cx ref. Z.H.
v. 0/ira. 226 F.3d 198, 202 (3d Cir. 2000)). The second theory of liability may he asserted against

policymakers if it is shown that such defendants. ‘with deliberate indifference to the
consequences. established and maintained a policy, custom, or practice which directly caused the
constitutional hanm” AM. cx rd J.ALK. v. Luzerne Civ, Juvenile Detention Cu’ 372 F.3d 572,
586 (quoting Stoneking v. Brad,/brd Area Sc/i. DisL, 882 F.2d 720, 725 (3d Cir. 1989)).
Here, Plaintiffs allege that Frost was Smith’s immediate supervisor. FAC

¶

II. Plaintiffs

allege that Widmaier was initially approached by a Jeep, which was driven by Frost, and a minivan.
Smith rolled down the window of the Jeep, told Widmaier to “Drop the t***ing gun,” and then

The precise scope of a Section 1983 supervisory liability claim after Iqbal is not settled within
the Third Circuit. See Argucta v. US. Imnugration & Customs Enf’t. 643 F.3d 60, 70 (3d Cir.
2011). This issue has not been addressed by the parties and is not vital to resolve the instant motion
to dismiss.
9

proceeded to follow Widmaier as he fled from the Jeep. Id.

¶ 21, 24, 26-36.

Although Plaintiffs

do not allege that the minivan also followed Widmaier as he was fleeing, Plaintiffs allege that Frost
exited from the driver’s side of a minivan when he arrived on the scene as Widmaier lay on the
ground. Id. ¶ 49. Accordingly, the Court can infer that Frost had contemporaneous knowledge of
the alleged wrongthl arrest. Moreover, Plaintiffs allege that Frost knew about the July21 incident
hut failed to request an investigation, complete a field inquiry or use of force report. and failed to
take any other action after the fact. Id

41

75—79. These allegations are sufficient to sufficiently

state a supervisory claim as to Frost. especially in light of Plaintiffs allegations with respect to the
DOJ report See .Iaizottski, 649 F. App’x at 187 (stating that supervisory liability may exist ifthe
supervisor “as the person in charge, had knowledge or and acquiesced in the unconstitutional
conduct” (quoting A,A’L exreL J.AIK., 372 F.3d at 586).
Plaintiffs also allege that Rodrigues was Smith’s supervisor. Id

¶ 98.

Plaintiffs plead that

Rodrigues knew or should have been aware that Plaintiff was hospitalized after the incident
because of the staffing and overtime required to provide security at tiw hospital.

Rodrigues,

however, failed to notify his supervisors, failed to ensure that the appropriate reports were
completed. and failed to investigation the incident. Id.

¶j

98-102. These allegations are also

sufficient to establish a supervisory claim as to Rodrigues.
Although Plaintiffs do not plead facts demonstrating that Venable and Campos had
knowledge of the incident or were otherwise personally involved. Plaintiffs assert a cognizable
policy-maker theory of supervisory liability. Plaintiffs seemingly plead that Venahie and Campos
were

policymakers in light of their positions. Venahle was the Chief of Police and Campos is

employed by the Police Department as the Agency Executive. FAC

¶t

9. 12. 148. Moreover, as

To be a policymaker for Section 1983 purposes, the defendant must be responsible for making
10

discussed with respect to the Mono/I liability claim. Plaintiffs plead that \‘enahle and Campos were
involved in the continuation of unlawful customs that directly caused the alleged constitutional
violations

Accordingly. Defendants motion to dismiss is denied as to their supervisory liability

claim.
2. CLAIMS AGAINST TIlE OFFICER DEFENDANTS

a.

Excessive Force, False Arrest, Unreasonable Seizure and
False Imprisonment Claims (Counts 1. U, V, VI, and XI)7

This Court previously dismissed all the Section 1983 and NJCRA claims asserted against
the Officer Defendants because except for Smith. Widmaicr failed to plead facts setting forth each
Defendants’ personal involvement in the alleged wrongful conduct. Opinion at 8-9. Although
Plaintiffs include additional facts in the FAC to bolster the claims against the Officer Defendants,
Defendants still maintain that the FAC is “vague and ambiguous,” such that it fails to establish
each Defendants’ personal involvement in the wrongdoing.

Defs. Br. at 18-20. As a result,

Defendants contend that Plaintiffs’ excessive force, false arrest. unreasonable seizure and false

policy in the particular area at issue and his authority to make policy in that area must be final and
unreviewable. Hill i Borough ofKutnrnrn, 455 F.3d 225, 245 (3d Cir. 2006). Whether Campos
and Venable are in fact policymakers is arguably unclear from the pleadings. Defendants,
however, did not attack the plausibility of such allegations.
Counts V and VI allege that Defendants violated Widmaier’s rights under the New Jersey State
Constitution. The New Jersey Civil Rights Act (“NJCRA”), N.J.S.A. 10:6-2, “was modeled after
42 U.S.C. § 1983, and creates a private right of action for violations of civil rights secured under
the New Jersey Constitution.” Trajion City of Woodhiny, 799 F. Supp. 2d 417, 443-44 (D.N.J.
2011). “[C]ourts in New Jersey have consistently looked at claims under the NJCRA through the
lens of* 1983 and have repeatedly construed the NJCRA in terms nearly identical to its federal
counterpart” Velez v. Fuentes, No. 15-6939, 2016 WL 4107689, at *5 (D.N.J. July 29, 2016)
(internal quotations and citation omitted). While Plaintiffs do not specifically name the NJCRA,
the Court construes Counts V and VI as being brought under the NJCRA and considers them
together with the Section 1983 claims. However, the Court notes that it pointed out this pleading
deficiency in its earlier Opinion, and Plaintiff’s counsel should have rectified the deficiency in the
FAC.
.

II

imprisonment claims must be dismissed.
When asserting a Section 1983 claim, a plaintiff must plead facts setting forth each
defendant’s personal involvement in the alleged violations. See Jqbal, 556 U.S. at 676; see also
Rode. 845 F.2d at 1207-08 (affirming dismissal of First Amendment retaliation claim where
plaintiff failed to allege personal direction of or knowledge and acquiescence in retaliatory actions
by individual defendants). Although Plaintiffs add additional facts to the FAQ, the FAQ continues
to allege that only Smith was present when the alleged excessive force and arrest occurred.
Plaintiffs allege that on July 21,2015, Smith and Domingues were partners and were working with
Frost, Smith’s immediate supervisor.

FAQ

¶J

11, 22, 26.

Although the FAQ includes new

allegations that Frost failed to get medical assistance for Widmaier and assisted in a cover-up of
the wrongdoing by failing to investigate or document the occurrence (Id.

i1

75-79), as pled, Frost

did not appear until after Smith allegedly backed over Widmaier in the Jeep and Widmaier was
lying on the pavement. Id.

¶ 49.

Frost appears to have had only limited interaction with Widmaier

and had left the scene of the incident before the ambulance even arrived. EL ¶ 50-55. Thus, the
FAQ fails to assert facts plausibly suggesting that Frost was involved in the alleged use of force,
or that he was involved in Widmaier’s arrest, false imprisonment, or any search.
As for Domingues, outside of the allegation that he was Smith’s partner and was operating
an unmarked police car on July21 (Id.

¶ 22),

Plaintiffs only allege that “[u]pon information and

belief, Domingues was a party to [Widmaierj’s arrest and force utilized therein.” Id.

¶

89. This

conclusory statement is insufficient to establish that Domingues participated in the alleged
wrongful conduct. In fact, neither Domingues or an unmarked police car are mentioned in the
FAQ again. Finally, the FAQ asserts no facts demonstrating that Venable, Rodrigues, or Qampos
were involved in the events on July 21. Accordingly. Defendants’ motion is granted on these

12

grounds, and the excessive force, false arrest, unreasonable seizure and false imprisonment claims
arc dismissed as to the Individual Defendants.
b.

Failure to Intervene (Count XII)

In Count Xli. Plaintiffs allege that once Frost arrived at the scene, he failed to intervene to
prevent Smith’s continued constitutional harms. Plaintiffs also allege that Domingues tad the
opportunity to intervene immediately following [Widmaier’s] arrest.”

FAC ¶5! 2 14-15.

Defendants contend that the failure to intervene claim should be dismissed. Defs. Br. at 36-39.
Under some circumstances, an officer’s failure to intervene to protect a victim from another
officer’s use of force may give rise to a Section 1983 claim. “A police officer has a duty to take
reasonable steps to protect a victim from another officer’s use of excessive force.” Ewing

i’.

Czunberland County, 152 F. Supp. 3d 269, 309 (D.N.J. 2015). An officer, however, is liable for
failing to intervene only if “there was a ‘realistic and reasonable opportunity to intervene.” Id.
(quoting Smith v Mesinger, 293 F.3d 641, 650 (3d Cir, 2002)). Accordingly, to state a claim a
plaintiff must plead facts demonstrating that (I) the defendant had reason to know that excessive
force was being used; and (2) there was a realistic opportunity to intervene. See Norman v. Haddon
Toi*nship, No. 14-6034, 2017 WL 2812876. at *5 (D.N.J. June 29, 2017). Here, Frost arrived on
the scene after the alleged use of force occurred (FAC ¶ 49) and outside the allegation that
Domingues was Smith’s partner. Plaintiffs fail to plead facts demonstrating that Domingues was
involved in the wrongdoing on July 21. As a result, Plaintiffs fail to sufficiently plead that Frost
or Domingues could have stopped Smith’s alleged excessive force or even knew that it was
occurring.
Plaintiffs base their failure to intervene claim on acts that occurred after the excessive force
occurred. Thus, they appear to contend that a failure to intervene claim may be premised on

13

constitutional violations more generally, and is not limited to the use of excessive force. Namely,
Plaintiffs allege that Frost failed to intervene because he reffised to provide Widmaier with medical
care once he arrived and that Domingues did not inform supervisors of Smith’s purported
wrongdoing or ensure that the incident was properly documented. Plfs. Opp. at 30. Plaintiffs.
however, do not support their argument with any legal authroity. and the Court is not aware of
cases that would support this argument. As discussed, in order to state a failure to intervene claim,
a defendant must have had a realistic and reasonable opportunity to intervene to prevent or stop a
fellow officer’s use of force. Ewing. 152 F. Supp. 3d at 309. Consequently, Defendants’ motion
to dismiss is granted on these grounds and Plaintiffs’ failure to intervene claim is dismissed.
Tort Claims

c.

Plaintiffs assert claims for assault and battery against the Officer Defendants (Count IV),
and gross negligence and negligence against all Defendants (Counts VII and VIII). With respect
to Counts VII and VIII, Plaintiffs allege that Defendants owed Widmaier a duty of exercising
minimal care to ensure that there was probable cause to arrest and to use appropriate force during
the arrest, and that Defendants breached these duties. FAC
i.

¶fflJ

185-93.

The New Jersey Tort Claims Act

Defendants argue they are entitled to absolute immunity for PlaintitTh’ tort claims pursuant
to the New Jersey Tort Claims Act (“NJTCA”) because Plaintiffs fail to plausibly plead that
Defendants acted with willthl misconduct. Defs. Br. at 34. Generally, the NJTCA provides public
employees such as police officers with immunity from tort liability. The NJTCA, however, does
not apply if the conduct at issue “constituted a crime, actual fraud, actual malice or willful
misconduct.” N.J.S.A. 59:3-14.

Willftil misconduct “is not immutably defined but takes its

meaning from the context and purpose of its use.” Fielder v. Stonack, 141 N.J. 101, 124(1995).

14

It falls somewhere “between simple negligence and the intentional infliction ofharnt” Id. (quoting
Foldi r. ic/fries. 461 A.2d 1145(1983)). While willful misconduct “need not involve the actual
intent to cause harm, there must be some knowledge that the act is wrongthl.” Id. (internal citation
omitted). Moreover,
[IJn order to satisfy the requirement of willfulness or wantonness
there must be a bbpositive element of conscious wrongdoing.” Our
cases indicate that the requirement may be satisfied upon a showing
that there has been a deliberate act or omission with knowledge of a
high degree of probability of harm and reckless indifference to
consequences.
Id. (quoting Berg v. Reaction Motors Div., Thiokol CI,e,n. Coip., 37 N.J. 396, 414 (1962)).
Here, the FAC pleads enough facts to establish that Frost acted with willful misconduct.
As discussed, the FAC alleges that Frost arrived on the scene, took a video recording of Widmaier
while Widmaier was laying on the ground and begging for help, and then departed without calling
for medical assistance.

FAC

¶J

49-55.

These allegations plausibly plead “a high degree of

probability of harm and reckless indifference to the consequences.” Fielder, 141 N.J. at 124.
Accordingly, at the motion to dismiss stage the Court cannot conclude that Frost is immune from
Plaintiffs’ tort claims.
This is not the case for the other moving Defendants. Plaintiffs argue that considering their
new factual allegations with respect to the Monell claim, the FAC demonstrates that all of the
Defendants acted with willflil misconduct. Plfs. Opp. at 24-28. Plaintiffs’ tort claims, however,
are limited to conduct surrounding Widmaier’s arrest and the use of force on July 21. FAC
185-36, 190-91. As pled, none of the other Defendants were involved on July21 and therefore
they could not have acted with willffil disregard.

Accordingly, except for Frost, the moving

Defendants are immune from Plaintiffs’ tort claims pursuant to the NJTCA.

15

ii.

Negligence and Gross Negligence (Counts VII and VIII)

Next, Defendants argue that Counts VII and VIII, claims for gross negligence and
negligence respectively, should be dismissed because Defendants “did not owe, violate or breach
any duty to PlaintifE” Defs. Br. at 29-30. Police officers have “a duty to act reasonably. and, in
the context of effectuating an arrest, they have a duty to exerciseS reasonahI care to preserve the
life. health, and safety of the person in custody.” Roccisano v. Toii;ship of Franklin. No. I 1
6558, 2013 \‘IL 3654101, at *11 (D.NJ. Jul. 12, 2013) (quoting Del TuJb

i

Township of Old

Bridge. 147 N.J. 90, 101(1996)); see also Dan,janj v. West DepUörd Township, No. 07-2834. 2008
WL 656041, at *34 (D.N.J. Mar. 7,2008) (refusing to dismiss a negligence claim where plaintiff
alleged that officers physically pulled her from a car without cause or explanation). As alleged,
the FAC sufficiently alleges that Frost breached this duty by videotaping Widmaier and failing to
provide him with medical care when Widmaier was in obvious need of such care. As to Frost,
therefore, Defendants’ motion to dismiss for Counts VII and VIII is denied.6 These claims are
also dismissed as to the remaining Defendants because they are immune under the NJTCA.
iii.

Intentional Infliction of Emotional Distress (Count IX)

Defendants argue that the intentional infliction of emotional distress (“lIED”) claim must
be dismissed because Plaintiffs fail to identify extreme or outrageous conduct by any Defendant.
Defs. Br. at 35-36. Plaintiffs counter that there are sufficient facts to support a claim for intentional
infliction of emotional distress because Defendants were personally involved in acts related to the
Monell claim and as a result of Frost’s conduct on July21. Plfs. Opp. at 28-29.
To establish a claim for intentional infliction of emotional distress, a plaintiff’ must plead

Outside of the argument that Defendants immune, Defendants do not seek to dismiss the assault
and battery claim as to any of the remaining Defendants. As a result, the Court will not specifically
address this claim and it remains as pled as to Frost.
16

four elements: (I) defendants acted intentionally or recklessly; (2) defendant’s conduct was so
outrageous to go beyond all bounds of decency and be utterly intolerable in a civilized community;
(3) proximate cause: and (4) the distress suffered was so severe that no reasonable person could
be expected to endure it. Shuman

Raritan Township, No. 14-3658, 2016 WL 7013465, at *26

(D.NJ. Nov. 30, 2016) (quoting Konnelis v. S/wirer, 529 F. Supp. 2d 503, 532 (D.N.J. 2008)).
The Court agrees with Defendants. Although Defendants may have established and maintained a
system that resulted in unlawftil and unconstitutional police conduct. Plaintiffs fails to establish
that Defendants did so intentionally or recklessly. In addition, outside of a conclusory allegation,
Plaintiffs fail to plead facts demonstrating that Widmaier suffered emotional distress as a result of
the alleged wrongdoing. Defendants’ motion to dismiss, therefore, is granted as to this claim.
3. Punitive Damages
Finally, Defendants maintain that Plaintiffs’ claims for punitive damages must be
dismissed.

Defs. Br. at 39-40.

First, as to the state law tort claims asserted against Frost,

“individual officers may be liable for punitive damages in their individual capacity

Drake

v Andruczvk, No. 084249, 2011 WL 1402158, at *8 (D.N.J. Apr. 13, 2011) (citing Rannrez

&

United States, 998 F. Supp. 425, 438 (D.NJ. 199$)). Pursuant to the NJTCA, punitive damages
are appropriate if the “acts or omissions were actuated by actual malice or accompanied by a
wanton and willffil disregard of persons who foreseeably might be harmed by those acts or
omissions.” N.J.S.A. 2A:15-5.12(a). The Court already determined that the FAC sufficiently
pleads facts demonstrating willful misconduct as to Frost. Therefore, Defendants’ motion to
dismiss the punitive damages claims arising under the tort claims is denied. Further, as discussed
in the first motion to dismiss Opinion, whether an individual officer can be liable for punitive
damages for state constitutional claims does not appear to have been addressed by a court in this

17

district. See. e.g., Mar

i

Sanna, No. 09-3253, 2012 WL 1067686, at *14 n.20 (D.N.J. Mar. 29,

2012). Accordingly, the punitive damages claim as to Frost will not be dismissed at this time
either.
The other remaining claims are for supervisory liability and the Monell claim. To recover
punitive damages for a Section 1983 claim against an individual’, the defendant’s conduct must
be “motivated by evil motive or intent, or

...

involve[] reckless or callous indifference to the

federally protected rights of others.” Savarese v. Agriss, 883 F.2d 1194, 1204 (3d. Cir. 1989)
(quoting Smith v. Wade, 461 U.S. 30,56(1983)). At this stage, the allegations in Plaintiffs’ FAC
do not plead reckless or callous indifference such that an award of punitive damages appears to be
appropriate for any of the supervisory Defendants. .s a result, Defendants’ motion to dismiss is
granted as to the supervisory Defendants on these grounds.
4. Leave to Amend
When granting a motion to dismiss, a court must decide whether to dismiss with or without
prejudice, the latter of which provides a plaintiff with opportunity to amend. Dismissal with
prejudice is appropriate if an amendment would be inequitable or futile. See Alston v. Parker, 363
F.3d 229, 235-36 (3d Cir. 2004). This is Plaintiffs fifth attempt to assert cognizable claims. As a
result, the Court concludes that any further amendment would be futile. See. e.g., Henn v. Citi’ of
Allentown, No. 12-1380. 2013 WL 6409307, at *2 (E.D. Pa. Dec. 9.2013) (“Although the grant
ofa motion to dismiss is usually without prejudice. a District Court may exercise its discretion and
refuse leave to amend if such amendment would be futile, particularly when a plaintiff has had
multiple opportunities to improve the pleadings.’). The claims and parties that are dismissed

‘

As previously explained, Plaintiffs cannot recover punitive damages from Newark. Opinion at
19 n.12.

through this opinion, therefore, are dismissed with prejudice.
D.

CONCLUSION

For the reasons set forth above. Defendants’ motion to dismiss (D.E. 73) is GRANTED in
part and DENIED in part. An appropriate Order accompanies this Opinion.
Dated:

April 29, 2017
\.J {
John Michael Vazqu bkDJ.

—__

19