RIVERA v. CITY OF NEWARK et al
OPINION. Signed by Judge Susan D. Wigenton on 4/7/17. (cm, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NEW JERSEY TRANSIT et al.,
Civil Action No. 2:16-cv-05308-SDW-LDW
April 7, 2017
WIGENTON, District Judge.
Before this Court is the Motion to Dismiss of Defendants New Jersey Transit, New Jersey
Transit Police Department (collectively, “NJT”), 1 and New Jersey Transit Police Officer D. Miller,
as well as the Motion to Dismiss of Defendants New Jersey Transit Police Officer DeBiase and
New Jersey Transit Police Officer Fermin, (collectively, “Defendants”), pursuant to Federal Rule
of Civil Procedure 12(b)(6). 2
This Court, having considered the parties’ submissions, decides
Although the Second Amended Complaint refers, at times, to New Jersey Transit and the New Jersey
Transit Police Department as separate defendants, the parties treat them as a single entity in their briefs. As
the New Jersey Transit Police Department is a statutorily created arm of the New Jersey Transit
Corporation, this Court treats New Jersey Transit and the New Jersey Transit Police Department as one
entity for the purposes of this Opinion. See N.J. Stat. Ann. (“N.J.S.A.”) § 27:25-15.1 (“There is established
in the New Jersey Transit Corporation a New Jersey Transit Police Department . . . .”).
Venue is proper in this District pursuant to 28 U.S.C. § 1391(b).
To the extent NJT’s Motion to Dismiss argues for dismissal of claims against NJT on the basis of sovereign
immunity, the Motion is actually a Motion to Dismiss for lack of subject-matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1). See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 n. 2
(3d Cir. 1996).
this matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons
stated below, Defendants’ Motions are GRANTED.
According to the Second Amended Complaint, on or about August 29, 2014, Defendants
Miller, DeBiase, and Fermin (the “Officer Defendants”) confronted Plaintiff Michael Rivera
(“Plaintiff”) as he stood alone at the Raymond West Plaza of Newark Pennsylvania Station. (2d
Am. Compl. ¶¶ 15-17.) Upon confronting Plaintiff, the Officer Defendants began asking Plaintiff
questions regarding an anonymous call they had previously received. (Id. ¶ 17.) The call reported
that “a black female traveling with a male subject with an infant in a stroller punched a toddler in
the face several times on Raymond West Plaza.” (Id.) Plaintiff cooperated with the Defendant
Officers’ questioning. (Id. ¶ 18.) However, at some point Plaintiff’s wife, who had been in a
restroom, returned and provided the Defendant Officers with her identification. (Id. ¶¶ 18-19.) The
Defendant Officers then asked Plaintiff for his identification. (Id. ¶ 19.) In response, Plaintiff
asked why the Officer Defendants needed his identification. (Id. ¶ 20.) The Defendant Officers,
in turn, threw Plaintiff to the ground, yelled that Plaintiff was under arrest, and “brutally beat[ ]”
him until he lost consciousness. (Id. ¶¶ 21-23.)
After his arrest, Plaintiff was charged with obstruction, resisting arrest, and disorderly
conduct. (Id. ¶¶ 23-24.) However, Plaintiff was subsequently exonerated after a trial. (Id. ¶ 32.)
According to Plaintiff, his arrest, which was for crimes he did not commit, was part of a “pervasive
and systematic pattern, custom and practice within [the New Jersey Transit Police Department of
using] excessive force by rendering vicious beatings to members of the general public . . . .” (Id.
The Second Amended Complaint in this matter, which Plaintiff filed on October 5, 2016
(Dkt. No. 6.), seeks damages, costs, and fees from Defendants for battery as well as for violations
of Plaintiff’s rights under the Fourth and Fourteenth Amendments to the United States
Constitution. (See generally 2d Am. Compl.) Specifically, Counts I to IV allege Defendants
Miller, DeBiase, Fermin, and NJT; respectively, violated 42 U.S.C. § 1983. 4 (Id. ¶¶ 40-80.) Count
V alleges Defendants violated 42 U.S.C. § 1985(3). (Id. ¶¶ 81-83.) Finally, Count VI alleges the
Officer Defendants are liable for battery and Count VII alleges NJT is liable for battery. (Id. ¶¶
On October 26, 2016, Defendants NJT and Miller filed a Motion to Dismiss Plaintiff’s
Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 7
(“NJT Br. Supp.”).) That Motion argues for dismissal of Counts IV, V, and VII. On November
17, 2016, Defendants Fermin and DeBiase filed a Motion to Dismiss Plaintiff’s Second Amended
Complaint, also pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 10 (“Fermin Br.
Supp.”).) That Motion argues for dismissal of Count V only. Plaintiff filed a brief in opposition
on November 7, 2016, (Dkt. No. 8), and Defendants NJT and Miller filed a brief in reply on
November 14, 2016. (Dkt. No. 9.)
Although Count IV is titled “Excessive Force Against Defendant City,” it appears that Plaintiff intended
to refer to NJT instead of “City” in Count IV and in several other instances throughout the Second Amended
Complaint. This Court, therefore, treats the Second Amended Complaint’s references to “City” as
references to “NJT.”
A. Federal Rule of Civil Procedure 12(b)(1)
A defendant may move to dismiss a complaint for lack of subject-matter jurisdiction under
Fed. R. Civ. P. 12(b)(1) by challenging jurisdiction facially or factually. Constitution Party of
Pennsylvania v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014). A facial challenge to subject-matter
jurisdiction “considers a claim on its face and asserts that it is insufficient to invoke the subjectmatter jurisdiction of the court because, for example, it does not present a question of federal law
. . . .” Id. at 358. In contrast, a factual challenge “is an argument that there is no subject matter
jurisdiction because the facts of the case . . . do not support the asserted jurisdiction.” Id. Drawing
this distinction is important because it “determines how the pleading must be reviewed.” Id. at
357-58 (citing In re Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012)). In analyzing
a facial challenge, “the court must only consider the allegations of the complaint and documents
referenced therein and attached thereto . . . .” Constitution Party of Pennsylvania, 757 F.3d at 348
(citing In re Schering Plough Corp. Intron, 678 F.3d at 243). Whereas in considering a factual
challenge to subject-matter jurisdiction, the court “may look beyond the pleadings to ascertain the
facts.” Constitution Party of Pennsylvania, 757 F.3d at 348. Furthermore, in considering a factual
challenge to subject matter jurisdiction, “the plaintiff’s allegations enjoy no presumption of
truthfulness, and [the plaintiff] bears the burden of establishing jurisdiction.” Meehan v. Taylor,
No. CIV. 12-4079, 2013 WL 4517943, at *2 (D.N.J. Aug. 26, 2013) (first citing CNA v. United
States, 535 F.3d 132, 139 (3d Cir. 2008); then citing Mortensen v. First Fed. Sav. ¶ Loan Ass’n.,
549 F.2d 884, 891 (3d Cir. 1977)).
B. Federal Rule of Civil Procedure 12(b)(6)
The adequacy of pleadings is governed by Fed. R. Civ. P. 8(a)(2), which requires that a
complaint allege “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). This Rule “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations omitted); see also Phillips v. Cty. of Allegheny, 515 F.3d
224, 231 (3d Cir. 2008) (stating that Rule 8 “requires a ‘showing,’ rather than a blanket assertion,
of an entitlement to relief”).
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must “accept all
factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to
relief.” Phillips, 515 F.3d at 231 (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7
(3d Cir. 2002)) (internal quotation marks omitted). However, “the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining whether the allegations
in a complaint are “plausible” is “a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. If the “well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct,” the complaint
should be dismissed for failing to “show that the pleader is entitled to relief” as required by Rule
Count IV, Count V (as it applies to NJT), and Count VII
NJT argues in its Motion that it is entitled to immunity from suit in this Court pursuant to
the Eleventh Amendment. (See NJT Br. Supp. at 6-23.) Therefore, this Court first considers
whether NJT is entitled to sovereign immunity under the Eleventh Amendment and, if so, whether
there is an applicable exception which would terminate NJT’s immunity regarding Counts IV, V,
In addition, this Court considers whether NJT is a “person” subject to potential liability
under 42 U.S.C. §§ 1983 and 1985.
NJT Is Entitled to Immunity Under the Eleventh Amendment
The Eleventh Amendment states:
The Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI. Although these terms provide states with immunity from private claims
in federal court by citizens of other states, the Supreme Court has held that the Eleventh
Amendment also provides immunity for states from claims by their own citizens. See Pennhurst
States Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). In addition, Eleventh Amendment
immunity extends to entities, such as state departments and agencies, in cases where the “state is
the real party in interest,” because the entity is an arm of the state. Fitchik v. N.J. Transit Rail
Operations, Inc., 873 F.2d 655, 659 (1989) (citing Edelman v. Jordan, 415 U.S. 651, 663 (1974));
Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 545 (3d Cir. 2007), amended on reh’g
(Mar. 8, 2007) (first citing Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); then
citing Pennhurst State Sch. & Hosp., 465 U.S. at 101).
In order to determine whether a defendant-entity in a particular federal case is an arm of
the state such that the state is the real party in interest, courts apply the three-factor test outlined in
Fitchik, 873 F.2d at 659. The three-factor test requires the court to determine: “(1) Whether the
money that would pay the judgment would come from the state . . . ; (2) The status of the agency
under state law . . . ; and (3) What degree of autonomy the agency has.” Id.
In Fitchik, the Third Circuit determined that NJT was not entitled to immunity under the
Eleventh Amendment. Id. at 644. However, in reaching this conclusion, the Third Circuit gave
primacy to the first Fitchik factor (whether the state would pay a judgment against NJT). Id. at
659-60; see also id. at 664 (“The majority reaches this result by relying, in essence, only on its
analysis of . . . the impact of a judgment against [NJT] on the treasury of the State of New Jersey.”)
(Rossen, J., dissenting). The Third Circuit subsequently determined in Benn v. First Judicial Dist.
Of Pa., that this approach was no longer appropriate after the Supreme Court’s holding in Regents
of the Univ. of Cal. v. Doe, 519 U.S. 425 (1997). 426 F.3d 233, 239 (3d Cir. 2005). In other words,
courts “can no longer ascribe primacy to the first [Fitchik] factor.” Id. The reason for “[this]
relegation of financial liability to the status of one factor co-equal with others in the immunity
analysis” is the underlying purpose of Eleventh Amendment sovereign immunity:
[w]hile state sovereign immunity serves the important function of shielding state
treasuries . . . the doctrine’s central purpose is to accord the States the respect owed
them as joint sovereigns . . . . [and to] protect against the indignity of any kind of
Id. at 240 (first citing Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 765 (2002); then
citing Hampe v. Butler, 364 F.3d 90, 97 (3d Cir. 2004)) (internal quotation marks omitted).
As the Third Circuit has not reconsidered its holding regarding NJT since issuing its
decision in Fitchik, this Court must determine whether NJT is an arm of the state when the Fitchik
factors are given equal consideration.
In Fitchik, the Third Circuit found that the first Fitchik factor (whether the state would pay
a judgment against the entity) weighed against NJT being immune under the Eleventh
Amendment, but that the second and third factors (the entity’s status under state law and its degree
of autonomy, respectively) weighed in favor of immunity. See Fitchik, 873 F.2d at 664.
Specifically, the Fitchik Court found that the funding factor weighed against NJT being entitled to
immunity because, inter alia, NJT is self-insured, NJT can borrow funds, and “NJT’s money does
not come predominantly from the state.” Id. at 660. However, in more recent decisions, the Third
Circuit has held that Eleventh Amendment immunity applies when only two of the three Fitchik
factors weigh in favor of immunity. See Benn, 426 F.3d at 240-41 (holding that the First Judicial
District of Pennsylvania was entitled to immunity even though it was “locally funded”); Bowers,
475 F.3d at 549 (holding that the University of Iowa was entitled to immunity even though the
“State of Iowa [was] not obligated to pay a judgment against the University.”).
In this instance, the second and third Fitchik factors weigh in favor of NJT being entitled
to immunity as an arm of the state. Specifically, New Jersey state law indicates that NJT is “an
instrumentality of the State.” N.J.S.A. § 27:25-4. New Jersey courts also have repeatedly held that
NJT is a “state agency.” See, e.g., N.J. Transit PBA Local 304 v. N.J. Transit Corp., 675 A.2d
1180, 1181 (N.J. Super. Ct. App. Div. 1996), aff’d, 701 A.2d 1243 (1997) (“Defendant [NJT] is a
state agency responsible for operating and improving public transportation in New Jersey.”); see
also Davis v. N.J. Transit, No. A-4901-10T1, 2012 WL 3192716, at *3 (N.J. Super. Ct. App. Div.
Aug. 8, 2012) (“NJT is ‘a surrogate of the State . . . .’” (quoting GEOD Corp. v. N.J. Transit Corp.,
678 F. Supp. 2d 276, 288 (D.N.J. 2009))). Furthermore, NJT lacks autonomy from the state
because, in addition to other factors, the Governor has veto power over all NJT Board decisions
under N.J.S.A. § 27:25-4.
Moreover, since the Third Circuit’s holding in Fitchik, this Court has repeatedly found that
NJT is a surrogate of, and lacks autonomy from, the state. See GEOD Corp., 678 F. Supp. 2d at
287-88; Joseph v. N.J. Transit Rail Operations, Inc., No. CIV.A. 12-1600, 2013 WL 5676690, at
*14 (D.N.J. Oct. 17, 2013), aff’d, 586 F. App’x 890 (3d Cir. 2014); Mancini v. N.J. Transit Corp.,
No. 12-CV-5753, 2013 WL 2460342, at *2 (D.N.J. June 5, 2013). 5 In fact, in Henry v. Jersey City
Police Dep’t., this Court held that NJT is entitled to immunity under the Eleventh Amendment
because two of the three Fitchik factors weigh in that direction. No. 214CV05480(SDW)(LDW),
2016 WL 1586875 (D.N.J. Apr. 20, 2016); see also Karns v. Shanahan, 2016 U.S. Dist. LEXIS
45402, *14 (D.N.J. Mar. 31, 2016) (holding that NJT is entitled to Eleventh Amendment
In light of both the Third Circuit’s holding in Benn that the Fitchik factors must be given
equal consideration, and the fact that two of the three Fitchik factors weigh in favor of Eleventh
Amendment immunity for NJT, this Court finds that NJT is an arm of the state of New Jersey
entitled to Eleventh Amendment immunity.
As NJT is entitled to immunity under the Eleventh Amendment, this Court lacks subjectmatter jurisdiction over all of Plaintiff’s claims against NJT to the extent that immunity has not
been waived or abrogated. Immunity may only be waived or abrogated if either the state
“unequivocally express[ed] consent to suit in federal court,” Hyatt v. Cty. of Passaic, 340 F. App’x
833, 837 (3d Cir. 2009) (citing Pennhurst, 465 U.S. at 99); or, if Congress “(1) unequivocally
express[ed] its intent to abrogate that immunity; and (2) act[ed] pursuant to a valid grant of
This Court notes that the cited cases determined that NJT is a surrogate of, and lacks autonomy from, the
State of New Jersey in the context of an “analytically distinct” analysis, i.e., determining whether NJT is a
“person” under 42 U.S.C. § 1983. See Estate of Lagano v. Bergen Cty. Prosecutor’s Office, 769 F.3d 850,
857 (3d Cir. 2014). Therefore, this Court relies on those cases in its immunity analysis only for their
recognition of NJT’s status under state law and NJT’s lack of autonomy, but not for their ultimate
conclusion that NJT is an arm of the state.
constitutional authority.” Bowers, 475 F.3d at 550. As discussed below, the state has not waived
immunity and Congress has not abrogated it regarding any of Plaintiff’s claims against NJT.
Counts IV and V of the Second Amended Complaint allege NJT is liable under 42 U.S.C.
§§ 1983 and 1985(3). (2d Am. Compl. ¶¶ 67-83.) However, the state has not waived, and Congress
has not abrogated, the state’s immunity regarding claims under either of these statutes. See Quern
v. Jordan, 440 U.S. 332, 342 (1979) (holding that 42 U.S.C. § 1983 does not override a state’s
Eleventh Amendment immunity); Rhett v. Evans, 576 F. App’x 85, 88 (3d Cir. 2014) (“Section
1983 does not abrogate states’ immunity . . . .”); Collins v. Sload, 212 F. App’x 136, 140 n.5 (3d
Cir. 2007) (“[T]he Eleventh Amendment barred the suit under [§§ 1983 and 1985] . . . .”); Owens
v. Armstrong, No. CV 15-4911, 2016 WL 1117945, at *6 (D.N.J. Mar. 22, 2016) (“Congress did
not expressly abrogate sovereign immunity when it passed §§ 1983 and 1985 . . . .”). For that
reason, Plaintiff’s claims against NJT under 42 U.S.C. §§ 1983 and 1985 are dismissed.
In addition, Plaintiff has provided this Court with no basis to find that it has subject-matter
jurisdiction over Plaintiff’s battery claim against NJT in Count VII. (2d Am. Compl. ¶¶ 99-104.)
Specifically, the New Jersey Tort Claims Act “does not expressly consent to suit in federal courts
and thus is not an Eleventh Amendment waiver.” Hyatt, 340 F. App’x at 837 (citing N.J.S.A. §
59:2-2(a)). Accordingly, Count VII is also barred by NJT’s sovereign immunity.
NJT Is Not a “Person” Potentially Liable Under 42 U.S.C. §§ 1983 and 1985
Even if NJT was not entitled to immunity under the Eleventh Amendment, Plaintiff’s 42
U.S.C. §§ 1983 and 1985(3) claims against NJT would still fail because NJT is not a “person”
under §§ 1983 and 1985. Section 1983 states in relevant part:
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 . . . .
42 U.S.C. § 1983 (emphasis added). In Will v. Mich. Dep’t of State Police, the Supreme Court
held that a state is not a “person” potentially liable under 42 U.S.C. § 1983. 491 U.S. 58, 64 (1989).
In order to determine whether an entity is an arm of the state such that it is also not a person within
the meaning of § 1983, the Third Circuit applies the Fitchik factors. See Callahan v. City of
Philadelphia, 207 F.3d 668, 670 (3d Cir. 2000). As this Court discussed above, NJT is an entity
of the state of New Jersey for purposes of the Eleventh Amendment. See Karns, 2016 U.S. Dist.
LEXIS 45402, at *14 (holding that NJT is entitled to Eleventh Amendment immunity). While
recognizing that the Eleventh Amendment and § 1983 determinations are analytically distinct, this
Court finds that two of the three Fitchik factors weigh in favor of NJT being an arm of the state.
Therefore, NJT is not a “person” within the meaning of 42 U.S.C. § 1983. See, e.g., Joseph, 2013
WL 5676690, at *14 (holding that NJT is not a person under § 1983). Moreover, insofar as NJT is
not a person under § 1983, it is also not a person potentially liable under § 1985. See Estate of
Lagano, 769 F.3d at 854. Therefore, even if NJT was not entitled to sovereign immunity, dismissal
of Plaintiff’s §§ 1983 and 1985 claims against NJT would still be appropriate.
In Count V of the Second Amended Complaint, Plaintiff alleges Defendants acted in
violation of 42 U.S.C. § 1985. 6 In order to state such a claim, a plaintiff must allege: (1) a
42 U.S.C. § 1985 provides, in pertinent part:
If two or more persons in any State or Territory conspire . . . for the purpose of
depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under the laws ... in
any case of conspiracy set forth in this section, if one or more persons engaged
therein do, or cause to be done, any act in furtherance of the object of such
conspiracy, whereby another is injured in his person or property, or deprived of
conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive,
directly or indirectly, any person or class of persons 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. 1997)
(citing United Bhd. of Carpenters & Joiners of Am., Local 610 v. Scott, 463 U.S. 825, 828-29
(1983)). Section 1985(3) actions are limited to conspiracies predicated on “racial, or perhaps
otherwise class based, invidiously discriminatory animus.” Lake, 112 F.3d at 685 (quoting Griffin
v. Breckenridge, 403 U.S. 88, 102 (1971)).
Plaintiff's Section 1985 claim states that Defendants conspired to violate Plaintiff’s “civil
rights based on his race, and maliciously prosecuting [sic] Plaintiff without cause.” (2d Am.
Compl. ¶ 82.) However, Plaintiff’s Second Amended Complaint neither indicates Plaintiff’s race
nor whether he is a member of a protected class. See McArdle v. Hufnagel, 588 F. App’x 118, 121
(3d Cir. 2014) (holding that a plaintiff’s “failure to allege his membership in a protected class . . .
[is a] proper basis” on which to dismiss a § 1985 claim.) Furthermore, although Plaintiff alleges
that the Officer Defendants acted in concert to arrest him, he fails to allege “specific facts
supporting the inference that [Defendants] ‘had an understanding or agreement to conspire against
[him].’” Morton v. Arnold, 618 F. App’x 136, 142–43 (3d Cir. 2015) (quoting Startzell v. City of
Philadelphia, Pennsylvania, 533 F.3d 183, 205 (3d Cir. 2008)). Although it is theoretically
possible, in light of the factual allegations in the Second Amended Complaint, that the Officer
having and exercising any right or privilege of a citizen of the United States, the
party so injured or deprived may have an action for the recovery of damages,
occasioned by such injury or deprivation, against any one or more of the
42 U.S.C. § 1985(3).
Defendants conspired to violate Plaintiff’s constitutional rights because of his membership in a
protected class, Plaintiff failed to plausibly allege the existence of an “agreement and concerted
action” between Defendants. See Maxberry v. Sallie Mae Educ. Loans, 532 F. App’x 73, 76 (3d
Cir. 2013) (quoting Capogrosso v. Supreme Ct. of N.J., 588 F.3d 180, 184–85 (3d Cir. 2009)
(internal quotation marks omitted)). Accordingly, Count V is dismissed.
For the reasons set forth above, Defendants’ Motions to Dismiss are GRANTED.
Specifically, Counts IV and VII are dismissed with prejudice. Count V is dismissed with prejudice
as it applies to NJT and is dismissed without prejudice as it applies to the Officer Defendants. An
appropriate order follows.
s/ Susan D. Wigenton
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
Magistrate Judge Leda D. Wettre
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