HERNANDEZ v. MONTOYA et al

Filing 39

OPINION & ORDER denying Defendant's 23 Motion to Dismiss. Signed by Judge Kevin McNulty on 5/15/17. (cm, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ANGEL HERNANDEZ,

Civ. No. 16-4592 (KM/MAH)

Plaintiff,
OPINION & ORDER

V.

DET. E. MONTOYA, DET. JUDEH, DET.
SGT. ESPOSITO, DET. MACOLINO, DET.
SGT. HUNTINGTON, DET. E. GONZALEZ,
et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
The plaintiff, Angel Hernandez,

pro Se,

brings this action alleging that the

defendants, all police officers, injured him by using excessive force in
connection with his arrest. Now before the Court is the defendants’ joint motion
under Fed. R. Civ. P. 12(b)(6) to dismiss the Complaint for failure to state a
claim upon which relief may be granted. (ECF no. 23) The plaintiff has filed a
response (ECF no. 31), and the defendants have filed a reply (ECF no. 32). For
the reasons that follow, the motion will be denied.
I.
BACKGROUND
The essential factual allegations of the Complaint (“Cplt.”, ECF no. 1),
taken as true for purposes of this motion, are as follows:
On August 19, 2015 at approximately 2:30 pm Det. E.
Gonzalez accompanied with Det. Montoya, Det. Sgt. Huntingtopn,
Det. Judgeh, Def. Exposito, Det. Macolino of the Paterson, NJ
police dept. and other officers that are currently unknown at the
moment was conducting a narcotics investigative in the area of
Chadwick St. and Weiss St. in Paterson, N.J. and immediately the
officers jumped out of their vehicles chasing me by foot until Det.
1

Montoya grabbed me and violently body slammed me on the
concrete dislocating my arm hear a fence in front of a house near
610 Main St. in Paterson, N.J. While I was on the ground all
officers mention above and other officers not yet known began
kicking and punching me in the body and face and violently pulled
and twist my dislocated arm behind my while trying to force
handcuffs on me. I was immediately transported from the scne to
St. Joseph hospital by Det/Sgt. Huntington and Det. Judeh for my
injuries with the hospital bill totaling $8,098 for my injuries done
by the officers (see attach hospital bill). As a result of the
misconduct describe above, plaintiff experienced humiliation,
emotional distress pain and suffering, including medical fees in
connection to the physical injuries as a result of the conduct
described in this complaint.
(Cplt.

¶ 6) The complaint seeks compensatory damages, punitive damages,

attorney’s fees, costs, and all other appropriate relief. (Cplt.
II.

¶

7)

STANDARD OF REVIEW

FED. R. Civ. P. 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
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 motion
a
to dismiss, a court must take all allegations in the complaint as true and
view
them in the light most favorable to the plaintiff. See Warth v. Seldin,
422 U.S.
490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts
Inc., 140
F.3d 478, 483 (3d Cir. 1998); see also Phillips v. County of Allegheny, 515
F.3d
224, 231 (3d Cir. 2008) (“reasonable inferences” principle not undermined
by
later Supreme Court Twombly case, infra).

R. Civ. P. 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
FED.

conclusions, and formulaic recitation of the elements of a cause of action
will
not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
factual
allegations must be sufficient to raise a plaintiff’s right to relief above
a
2

speculative level, such that it is “plausible on its face.” See id. at 570; see also
Umland v. PLANCO Fin. Seru., Inc., 542 F.3d 59, 64 (3d Cir. 2008). 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) (citing
Twombly, 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 (2009).
...

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.” Erickson v. Pardus, 551 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).

III.

DISCUSSION

The defendants argue that the Complaint fails to meet the pleading
requirements of Twombly and Iqbal, supra. I do not accept their argument that
this complaint “is nothing more than a series of allegations that fail to imply
“more than a mere possibility of misconduct.” (Def. Br. 4) The plaintiff’s
allegations may be true, or they may not—that determination will come later.
But as allegations they are perfectly clear. The plaintiff alleges that, at a
particular time and place, certain named and unnamed police officers beat
him, sending him to the hospital. No necessity or even provocation for the
beating appears in the allegations of the complaint. Kicking, punching, armtwisting—these are anything but “bald assertions” or “legal conclusions.”
The defendants next point out that the Complaint erroneously cites the
Fifth, Eighth, and Fourteenth Amendments as the basis for the excessive force
claim. The Supreme Court has long held that such claims should be brought
3

under the constitutional provision that most specifically applies, rather than
under a general due process standard. Thus, “all claims that law enforcement
officers have used excessive force—deadly or not—in the course of an arrest,
investigatory stop, or other seizure of a free citizen should be analyzed under
the Fourth Amendment and its reasonableness standard, rather than under
a
substantive due process approach.” Graham v. Connor, 490 U.S. 386, 395
(1989). Given the plaintiff’s pro se status, I will not require amendment, but will
deem his claims to be brought under the Fourth Amendment.
Finally, the defendants claim qualified immunity. The qualified
immunity analysis has two prongs: “first determine whether the facts, and
inferences drawn therefrom, taken in the light most favorable to the plainti
ff,
establish that the official’s conduct violated a constitutional right.” McGre
ez’y v.
Stroup, 413 F.3d 359, 364 (3d Cir. 2005) (citing Saucier v. Katz, 533
U.S. 194,
201 (2001)). Second, 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. Sez, 225 F.3d 290, 298 (3d Cir. 2000).
When a qualified immunity issue is raised on a motion to dismiss, the
Court is obligated to address it. “[U]nless the plaintiff’s allegations
state a
claim of violation of clearly established law, a defendant pleading qualifi
ed
immunity is entitled to dismissal before the commencement of discov
ery.
Thomas v. Independence Twp., 463 F.3d 285, 291 (3d Cir. 2006) (quotin
g
Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806 (1985)). As Thoma
s
implies, at the pleading stage such a clear violation need only be alleged
, not
proven. “The focus of the qualified immunity inquiry is on the allegat
ions..
.

Estate of Lagano v. Bergen County Prosecutor’s Office, 769 F.3d 850,
859 (3d
Cir. 2014). Nevertheless, qualified immunity may present factual
issues that
cannot be resolved at the motion to dismiss stage. This is such a case.

“For purposes of this motion,” say defendants, “the Court must accept
as
true that Plaintiff was fleeing the scene of a narcotics investigation and

4

resisting an arrest.” (Def. Br. 9 (citing Cplt. p. 7)) Hardly; that is defendants’
version of the facts, not plaintiff’s. The plaintiff alleges that the officers chased
him, not that he was being arrested or that there was any basis for his arrest.
And absent a sufficient basis to detain him, the plaintiff, like any citizen, was
free to leave a scene where a narcotics investigation was going on.
Accepting arguendo that plaintiff intends to assert a Fourth Amendment
claim, the defendants cite a “highly fact specific” test, involving some eight
factors, in support of their claim of qualified immunity. (Def. Brf. 10, citing
Groman v. Twp. Of Malapari, 47 F.3d 628, 634 (3d Cir. 1995) The elements of
this fact-specific test cannot be met based on the allegations of the Complaint.
Again, the defendants ask the court to accept their version of the facts, which
the court, at this stage of the proceedings, cannot do.
Once again, defendants may at a later stage try to prove their version,
and may even succeed. Now, however, contested issues of fact preclude
dismissal.
Finally, defendants argue that any state tort claims must be dismissed
because the plaintiff has failed to file a notice of tort claim as required by state
law, see N.J. Stat. Ann.

§ 59:8-8, unless excused, see N.J. Stat. Ann. § 59:8-9.

This contention, which depends on facts extrinsic to the complaint, may await
summary judgment.

ORDER
For the reasons expressed in the foregoing Opinion,
IT IS this 15th day of May, 2015,
ORDERED that the defendants’ motion (ECF no. 23) to dismiss the
complaint, pursuant to Rule 12(b)(6), is DENIED.

HON. KEVIN MC
LT
United States Distric

5

e