VERANO v. COUNTY OF ESSEX et al
OPINION. Signed by Judge Kevin McNulty on 7/20/17. (cm, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 16-6388 (KM) (JBC)
COUNTY OF ESSEX, ESSEX COUNTY
DEPARTMENT OF CORRECTIONS,
STATE OF NEW JERSEY,
SUPERIOR COURT OF NEW JERSEY,
ESSEX COUNTY PROBATION DIVISION,
ADMINISTRATIVE OFFICE OF THE
COURTS, JOHN DOES 1-20, ABC CORP.
This matter comes before the Court on separate motions of two groups of
defendants to dismiss the complaint in this removed action for failure to state a
claim, pursuant to Fed. R. Civ. P. 12(b)(6). (“Cplt.”, ECF no. 1 at 5) For the
reasons stated below, the motions will be granted in part and denied in part.
On September 21, 2016, the Complaint was filed in Superior Court of
New Jersey, Essex County, as ESX-L-006250-16. On October 4, 2016, the
County of Essex filed a notice of removal to this Court. (ECF no. 1) Removal
was based upon the Complaint’s allegations of a violation of federal law, 42
1983; the notice invoked the Court’s federal question jurisdiction
under 28 U.S.C.
1331. See also 28 U.S.C.
1343. No other defendant
objected, and no motion for remand has been made.
The allegations of the Complaint, assumed to be true for purposes of
these Rule 12(b)(6) motions, are as follows:
The plaintiff, Hamilton Verano, is a resident of Newark who was under
probation supervision at the time of the events related in the Complaint. On
August 8, 2014, the Hon. Siobhan A. Teare, J.S.C., entered an order of
violation of probation and issued a bench warrant (no. 14-4988) for the arrest
of Verano. On September 8, 2014, Verano was arrested and taken to the Essex
County Correctional Facility in Newark. Aside from the bench warrant, there
was no basis for his detention. On September 12, 2014, Verano appeared in
court. At the conclusion of the hearing, Judge Teare ordered that probation be
terminated and that all fines, fees, penalties, and assessments be turned over
to collections. (Cplt.
The clear implication of the allegations is that Mr. Verano should have
been released from custody at that time. On an unspecified date, the Superior
Court of New Jersey “issued a status change notice to the plaintiffs jailers
indicating that he was to he released.” (Cplt.
15) “Nevertheless, and for no
explicable reason, the plaintiff was held at the Essex County Correctional
facility an extra nineteen (19) days and he was finally released on October 1,
The Complaint asserts four causes of action for damages:
Count 1 42 U.S.C. § 1983 (false arrest and imprisonment without
probable cause or due process/Monell liability against government
Count 2 N.J. Civil Rights Act (“NJCRA”), N.J. Stat. Ann. § 10:6—1, N.J.
Const. art. I, fl 5 & 7 (false arrest and imprisonment without probable
cause or due process/Mondll liability against government defendants)
Count 3 New Jersey Tort Claims Act (“NJTCA”), N.J. Stat. Ann.
Demand for punitive damages.
The “State Defendants” (State of New Jersey, Administrative Office of the
Courts, Superior Court of New Jersey, and Essex County Probation Division)
have filed a motion to dismiss the Complaint for failure to state a claim,
pursuant to Fed. R. Civ. P. 12(b)(6). (ECF no. 15) The County of Essex has
likewise filed a motion to dismiss (incorrectly deemed a “cross-motion”),
essentially joining in the State Defendants’ motion and briefly supplementing
the arguments. (ECF no. 17)
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 u. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion
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 Wadh v. Seldin, 422 U.S.
490, 501 (1975); Trump Hotels & Casino Resorts, Inc.
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 case of Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
FED. R. Civ. P. 8(a) does not require that a complaint contain detailed
factual allegations. Nevertheless, “a plaintiffs obligation to provide the
‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and formulaic recitation of the elements of a cause of action will
not do.” Bell Atl. Corp. u. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual
allegations must be sufficient to raise a plaintiffs right to relief above a
speculative level, such that it is “plausible on its face.” See Id. at 570; see also
Umland a PLANCO Fin. Serv., 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 i-c Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[tjhe plausibility standard is not akin to a
it asks for more than a sheer possibility.” Iqbal,
556 U.S. at 678 (2009).
Counts 1 and 2
Count 1 asserts a federal Constitutional claim under 42 U.S.C.
Count 2 asserts a parallel State Constitutional claim under the NJCRA. The
State Defendants and the County have moved to dismiss both.
“Person” (State Defendants)
The State Defendants assert that they are not “persons” amenable to suit
under Section 1983 or the NJCRA.1 I agree, and will grant their motion to
dismiss Counts 1 and 2.
Section § 1983 provides:
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).
A state and its departments are not considered “persons” amenable to
suit under section 1983. Will a Michigan Dep’t of State Police, 491 U.S. 58, 6770 (1989). The analysis is closely related to that under the Eleventh
Amendment, which bars section 1983 suits for damages against “governmental
entities that are considered ‘arms of the state’ for Eleventh Amendment
purposes,” which are “no different from a suit against the State itself.” Id. at
The County of Essex does not seek to join in this argument, which by its terms
applies to State entities, not counties or municipalities. The liability of such local
entities is governed by Monell v. Dep’t of Social Services, 436 U.S. 658 (1978).
The Eleventh Amendment does not literally apply, however. The defendants
have waived their Eleventh Amendment federal-forum immunity by removing the
action to federal court. Any other defenses that could have been asserted in a state
court action, including sovereign immunity, are not waived. See Lombardo v.
This case, as pled, does not present a viable
1983 claim against the
State Defendants. The lead State Defendant is, of course, the State of New
Jersey itself. The remaining State Defendants are arms of the state which
partake of the State’s sovereign immunity, and therefore are not subject to suit
as “persons” under Section 1983. Case law so holds as to the New Jersey
Superior Court. See Dongon v. Banar, 363 F. App5c 153, 156 (3d Cir. 2010);
Onyiuke v. N.J Supreme Court, 435 F. Supp. 2d 394, 401 (D.N.J. 2006); Hunter
v. Supreme Court of N.J., 951 F. Supp. 1161, 1177 (D.N.J. 1996), affd, 118
F.3d 1575 (3d Cir. 1997). The Essex County Probation Division, as an arm of
the New Jersey Judiciary, is likewise not a section 1983 “person.” See
Thurber, No. 14-7395, 2015 U.S. Dist, LEIS 99270, at
(D.N.J. Jul. 29, 2015); Gencarelli v. Superior Court of N.J, No. 04- 3332, 2005
U.S. Dist. LETS 42264, at *9Q (D.N.J. Jun. 21, 2005). So too as to the
Administrative Office of the Courts, a state agency. See, e.g., Johnson, 869 F.
Supp. at 297.
It follows that Count 1 must be dismissed as against the State
Count 2 alleges parallel claims against the State Defendants under the
New Jersey Civil Rights Act, N.J. Stat. Ann. § 10:6—1, for violation of the
plaintiffs rights under Article I, fl 5 & 7 of the New Jersey Constitution. The
NJCRA is modeled on Section 1983, and is construed in parallel with it. See,
e.g., Ingram v. Twp. of Deptford, 911 F. Supp. 2d 289, 298 (D.N.J. 2012);
Traflon a City of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011). Like
Pennsylvania, Dep’t of Pub. Welfare, 540 F.3d 190, 198 (3d Cfr. 2008); see also Quem
v. Jordan, 440 U.S. 332, 341 (1979).
A close call may be presented when it is not clear whether the State is the real
party in interest—i.e., whether an action against a person or entity is really one
against the State. In such a case, the court will consider the so-called Fitchik factors:
(1) whether the source of the money to pay ajudgment would be the State treasury, (2)
the status of the defendant entity under State law, and (3) the defendant entity’s
degree of autonomy. Fitthik v. N.J Transit Rail Ops., Inc., 873 F.2d 655, 659 (3d Cir.
1989). This, however, is not such a case.
Section 1983, NJCRA grants a cause of action against “a person acting under
color of law.” N.J. Stat. Ann.
§ 10:6-2 (emphasis added).
As I have previously held, the NJCRA ties the definition of a “person” to
sovereign immunity in the same manner as
on those grounds under
§ 1983. Claims subject to dismissal
§ 1983 are therefore equally subject to dismissal
under the NJCRA:
The same sovereign immunity reasoning has been applied to
claims for damages against the state and its entities pursuant to
the NJCRA. Szemple v. Con-. Med. Servs., 493 Fed. Appx. 238, 241
(3d Cir.2012); Stroby v. Egg Harbor Twp., 754 F.Supp.2d 716, 721
n. 5 (D.N.J.2010) (quoting Chapman u. State of New Jersey, Civ. A.
*7 2009 WL
No. 08—4 130, 2009 U.S. Dist. LEXIS 75720, at
2634888, at *3 (Aug. 25, 2009)). NJCRA is construed nearly
identically to Section 1983. In particular, the definitions of
“person” under the two statutes have been interpreted in parallel.
Didiano v. Balicki, 488 Fed. Appx. 634, 638 (3d Cir. 2012)
(explaining that “person” as defined in the New Jersey Code does
not encompass the state or its functional equivalents).
Endi v. New Jersey, 5 F. Supp. 3d 689, 697 (D.N.J. 2014). See also See B.D. v.
Bd. of Educ. of the Greater Egg Harbor Regi High 5th. Dist., 2015 WL 4508303,
at *4 n.6 (D.N.J. July 24, 2015) (Hillman, J.) (“Both the NJCRA and § 1983
require that the party sued be a ‘person’ acting in their individual capacity, not
in their official capacity.”)
Count 2 is therefore dismissed as against the State Defendants.
“Person” (County Department of Corrections)
Relatedly, the Essex County Department of Corrections asserts that it is
not an independent entity amenable to suit as a “person” under § 1983 or the
NJCRA, citing Crawford v. McMillan, 660 F. App’x 113 (3d Cir. 2016). In
general, ajail or a department of a municipality is not properly sued; it is the
municipality, here the County, that is the suable “person.” See Ritchie v.
Hudson Cty. Con-. Ctr., No. CIV. 12-683 JLL, 2012 WL 3682910, at *2 (D.N.J.
Aug. 24, 2012) (citing, e.g., Vance a County of Santa Clara, 928 F.Supp. 993,
995 (N.D. Cal. 1996) (county department of corrections is an agency of the
county and cannot be sued separately from the county under
§ 1983); Renwick
u. U.C. Med. Dept, No. CIV.A. 10-6272 SRC, 2011 WL 1883810, at *2 (D.N.J.
May 11,2011) (citing, e.g., Mayes u. Elrod, 470 F.Supp. 1188, 1192 (N.D. Ill.
1979) (county department of corrections not entity that can be sued separate
from county)); Antoine c’. Belleville Mun. Court, No. CIV.A. 10-1212 (KSH), 2010
WL 2989991, at *2 (D.N.J. July 27, 2010).
Counts 1 and 2 will therefore be dismissed as against the County
Department of Corrections. This, however, is merely a technical amendment;
the County itself, already named as a defendant, is the proper defendant for
claims asserted against the Department.
Failure to state a claim/MoneU (Essex County)
The State Defendants, joined by Essex County, argue that Counts 1 and
2 fail to state a claim upon which relief may be granted. Because I have already
dismissed Counts 1 and 2 as against the State Defendants, the point is moot
as to them. 1 nevertheless briefly discuss it as to the County.
The plaintiff has pled some alternative theories, some more viable than
others. The most clearly applicable theories would seem to be false
imprisonment or denial of due process. The State objects that there was
probable cause for Verano’s arrest and that he did receive due process (i.e., a
hearing before Judge Teare) following his arrest on the bench warrant.
It is true, as the County says, that “false imprisonment in both the
common law and constitutional sense is defined as ‘detention without legal
process.”’ Wallace u. Kato, 549 U.S. 384, 389 (2007). Under the usual fact
pattern (arrest without probable cause, followed by detention), the false
imprisonment claim is exhausted once valid legal process comes into play. See
id. The County thus objects that Mr. Verano did receive legal process; he was
arrested pursuant to a warrant and he had a hearing before a Superior Court
Judge. Verano’s claim, however, does not fit the usual fact pattern. He alleges
that the judge essentially ordered his release by terminating probation, but
that he nevertheless was not released. He claims that his incarceration
subsequent to the hearing was therefore based on no legal process or
justification at all.
That allegation may or may not be accurate, but it adequately sets forth
a claim. A legal claim being present, the Court must next consider the
argument that the County it is not liable for the acts of whatever persons were
The County is of course correct in stating that there is no respondeat
superior liability under
1983, and that its liability must rest, if at all, on the
principles enunciated in Monell v. Dep’t of Social Services, 436 U.S. 658 (1978).
The Complaint alleges that the County is liable “under the provisions of Monell
for maintaining and creating a custom, policy and practice where by
constitutional violations could occur, including the failure to properly train,
supervise, discipline their employees and, for failure to have in place a proper
system to prevent” the kind of violation that occurred here. (Cplt.
the circumstances, I will permit the allegation to stand. The plaintiff has not
even ascertained the names of those responsible. It is a reasonable inference
that, if a person ordered to be released was nevertheless held in prison,
something went wrong, and perhaps systematically wrong. Given that the
relevant facts are all in the hands of the County, that is enough for the present.
I will permit the claim to go forward so that it can be explored in discovery.
The County’s motion to dismiss Counts 1 and 2 for failure to state a
claim is therefore denied.
Counts 3 and 4
Count 3 asserts a state tort claim for negligence under the New Jersey
Tort Claims Act, N.J. Stat. Ann.
59:2-2 et seq. Count 4 is a demand for
punitive damages. The State Defendants, joined by Essex County, assert that
Counts 3 and 4 fail to state a claim.
The State and the County argue that Count 3 cannot be sustained
because emotional distress damages are not recoverable under the NJTCA
unless they surmount a certain injury threshold. See N.J. Stat. Ann.
2(d). The Complaint, however, does not allege that plaintiff’s feelings were hurt;
it alleges that he was confined in prison without justification for nineteen days.
Count 3 in particular alleges generally that “the plaintiff sustained damage” as
a result of the defendants’ negligence. It does not confine itself to emotional
damages. Nor is it an implausible inference that nineteen days of confinement
would have an economic impact. The motion to dismiss Count S on these
grounds is therefore denied.
Count 4 asserts that an award of punitive damages would be justified.
There is no need to dismiss it for failure to state a cause of action; it does not
even purport to state a cause of action. Rather, it is in the nature of a prayer
for relief. As such, it is superfluous; the Complaint’s prayer for relief already
contains a demand for punitive damages. I will permit it to stand, but with the
understanding that it is not a cause of action, but a demand for relief that
stands or falls with the underlying causes of action in Counts 1, 2, and 3. The
title “Fourth Cause of Action” preceding
41 is struck as surplusage. See Fed.
R. Civ. P. 12(f).
The claims remaining, then, are the following:
1983) and 2 (NJCRA) against the County only
Count 3 (negligence) against the State Defendants and the County
A question arises as to whether the Court may exercise subject matter
jurisdiction over the pure State law claims. As to the County, the answer is
clear. Because the Court has “original jurisdiction” over the § 1983 claim, and
the remaining claims are “so related
that they form part of the same case or
controversy,” I may exercise supplemental jurisdiction. 28 U.S.C. § 1367(a). As
to the State Defendants, the answer is clear enough. “Such supplemental
jurisdiction shall include claims that involve the joinder or intervention of
additional parties,” with irrelevant exceptions. Id. The claims against the State
Defendants rest on precisely the same facts as those against the County.
Consequently, the Court’s supplemental jurisdiction is broad enough to
encompass Count 3 as against the State,
The claims against the State Defendants and the County have obvious
defects. As pointed out by the plaintiff, the real claims and causes of action
here may well lie against individual State or County employees in their
personal capacities. Those John Doe defendants may not yet have been
identified, and an amended complaint may be in our future. For the present,
however, I have dealt with the Complaint as it is. Counts 1 and 2 are dismissed
as against the State Defendants, and the title of Count 4, which is more
properly regarded as a prayer for relief, is struck. The motions to dismiss are
Dated: July 20, 2017
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