OLMO v. PATERSON POLICE DEPARTMENT et al
Filing
24
OPINION. Signed by Judge John Michael Vazquez on 4/16/18. (DD, ) N/M
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DONALD T. OLMO,
Plaint iff;
Civil Action No. 16-9414 (JMV)
v.
PATERSON POLICE DEPARTMENT, CHIEF
OF PATERSON POLICE DEPARTMENT,
OFFICER RAFAEL CAMPOS, K-9 UNIT
TRAINING DEPARTMENT, and K-9
OFFICER,
OPINION
Defendants.
John Michael Vazguez, U.S.D.J.
Plaintiff Donald Olmo (“Plaintiff’) seeks to bring this action in forma pailperis pursuant
to 28 U.S.C.
§ 1915. D.E. 8. Plaintiff filed his initial Complaint on December 21, 2016. D.E. 1.
Afier review pursuant to 2$ U.S.C.
§ 1915(e)(2), this Court dismissed the Complaint without
prejudice for failure to state a claim upon which relief may be granted because Plaintiff had not
brought his claims under any specific law or statute. Id. The Complaint also lacked plausible
factual allegations in certain areas.
Id.
Plaintiff was granted the opportunity to cure the
deficiencies in an amended complaint. id. at 3.
Plaintiff then filed his First Amended Complaint (“FAC”) on August 23, 2017. D.E. 14.
Because Plaintiff is still proceeding in forma pauperis, the Court will screen Plaintiffs FAC
pursuant to 28 U.S.C.
§ 1915(e)(2)(B). For the reasons expressed in the Court’s original screening
opinion, D.E. 5, the Court GRANTS Plaintiffs application to proceed informa pauperis. While
1
Plaintiff has not broken his allegations into formal counts in this FAC, he has sufficiently alleged
facts consistent with Section 1983 claims for excessive force against the “K-9 Officer on Duty 516-2016” and the “Female Officer,” and claims for failure to intervene against Officer Rafael
Campos, “Female Officer,” and “Other Officers” under the fourth Amendment.1 All other claims
are DISMISSED without prejudice pursuant to 28 U.S.C.
§ 1915(e)(2)(B) for failing to state a
claim upon which relief can be granted.
I.
FACTUAL BACKGROUND2
Plaintiffs that Paterson Police Department officers used excessive force when arresting
him on May 16, 2016. Plaintiffs specific allegations are as follows. Several days before the
arrest, Plaintiff interacted with Patterson Police officers concerning an argument between Plaintiff
and his wife. FAC at 7. One of these officers was the “Female Officer” named in this action. Id.
The police told Plaintiff to “get in [his] vehicle and leave before [Plaintiff] went to jail.” Id. at 8.
Plaintiff alleges that over the “next few days [Plaintiff] was being harassed by some of the same
officers stating they would f--k [him] up and lock [him] up if they [caught] [him] doing the wrong
thing.” Id. These interactions included one instance where police officers allegedly shined their
spotlights in Plaintiffs face and threatened him. Id. These events led Plaintiff to find some old
license plates and place them on his vehicle in order to avoid being recognized by the police. Id.
Plaintiff also states that he purchased two gold chains around this time, totaling $2,000 in value.
Id.
The Court’s role at this stage is to perform an initial screening function pursuant to Section
1915(e)(2)(B). The Court’s niling does not prejudice Defendants from litigating this matter as
they see fit, including the decision whether to file a motion to dismiss pursuant to Rule 12(b)(6).
2
For the purposes of screening the FAC, the Court takes all facts alleged by Plaintiff as true and
construes the pleadings liberally due to Plaintiffs pro se status. Names v. Kerner, 404 U.S. 519,
520 (1972).
On May 16, 2016, while driving to his sister’s house, Plaintiff was followed by police for
some time until they signaled for him to pull over by switching on their overhead lights. Id, at 8.
Plaintiff states that he panicked and “took off,” leading police on a chase that ended when the
Plaintiff crashed his vehicle taking a corner too fast. Id. After crashing, and fearing that his car
was on fire, Plaintiff stepped out of the car and was immediately surrounded by officers with guns
drawn. Id. The officers ordered Plaintiff to the ground. Id. at 9. Plaintiff states that “I was trying
but told [the officers] it was very hard for me because of my disability, polio on right leg which is
a lot shorter and thinner than the other.” Id. Before he was able to comply, Plaintiff claims that a
“female officer” kicked him in the chest, knocking him onto his back and causing him to bang his
head against the ground. Id. Officers then ordered Plaintiff to roll onto his stomach and spread
his hands out, and Plaintiff complied. Id.
When one of the officers went to put Plaintiff in handcuffs, Plaintiff alleges that a “K-9
Police Officer” on the scene said “[l]et him go I got something for him,” after which a police dog
was released and commanded to attack the Plaintiff. Id. The dog allegedly bit the Plaintiff on his
lower back. Id. Plaintiff states that “[o]nce the dog sunk his fangs into my lower back I screamed
in such pain and agony.” Id. Plaintiff alleges that the K-9 Police Officer then forcefully pulled on
the dog’s vest, causing further damage to Plaintiffs back. Id. Plaintiff claims that the officer
repeated this on the other side of his back. Id. After Plaintiff rolled onto his back “begging the
officers to stop,” they started screaming insults and cursing at him. Id. The K-9 Police Officer
allegedly again ordered the dog to attack Plaintiff, biting and chewing into his disabled leg. Id. at
10. The officer pulled on the dog’s vest again, causing “the flesh to rip open over and over again
exposing the bone and tendons.” Id. at 10. The dog then allegedly began shaking Plaintiffs leg
violently and Plaintiff states that “it felt like it was gonna [sic] break.” Id. As Plaintiff grabbed
his leg, the dog bit him on both of his hands. Id. The bites to Plaintiffs hands ripped open his
right thumb, exposing bone and leaving gashes on the other hand. Id. All through this Plaintiff
states that the officers “laughed and cursed insults as [he] cried, begged and pleaded with them.”
‘a.
An ambulance was called, and Plaintiff was handcuffed and “practically dragged to [it]
because [he] couldn’t walk.” Id. Plaintiff was then brought to a hospital for treatment. Id. At the
hospital police officers allegedly took photos of Plaintiffs wounds their cell phones. Id. at 10-11.
Plaintiff asked why they were taking pictures and the Sergeant said that he “needed to put them in
their reports.” Id. Plaintiff was later moved to the Passaic County Jail and placed in the Medical
Unit to receive more treatments for his wounds. Id. at 11. Plaintiff “had to sleep for almost two
weeks on a mat.” Id. Several of Plaintiffs stiches broke open from sleeping like this and the
wounds on his back became infected. Id.
Plaintiffs injuries are the wounds that he received to his back, right leg, and both hands.
Id. at 12. Additionally, Plaintiff has been diagnosed with P.T.S.D. and has been receiving
medication for “[his] horrible nightmares and even day dreams.” Id. Plaintiff also that his gold
chains were stolen from him.
A. Plaintiffs Claims Against Each Defendant3
Plaintiff sues one identified officers and other unidentified officers. Plaintiff first brings
claims against Officer Rafael Campos who “is the officer [who] chased and arrested [Plaintiffi.”
Id. at 4. Plaintiff claims that Officer Campos used “brutality and excessive force by allowing [the]
K-9 unit to use K-9 to maul my leg, back and hands and allow female officer to kick me in the
While Plaintiff does not clearly delineate his claims against each defendant, the Court
summarizes Plaintiffs factual allegations against each named party for clarity.
chest causing me to bang my head.” Plaintiff next asserts claims against the “K-9 Officer on Duty
5-16-2016” (hereinafier the “K-9 Officer”). Plaintiff claims that afier laying on the ground, the
K-9 Officer repeatedly had the dog attack Plaintiff and then pulled the dog off Plaintiff in a manner
to worsen the injuries. Id. Plaintiff also contends that the K-9 Officer lied on his police report,
claiming that Plaintiff was punching and kicking the police dog. Id. at 6.
Plaintiff further sues
the unnamed “female Officer” and “[a]ll Officers at [the] scene of my arrest.” Id. Plaintiff alleges
that the Female Officer kicked him on the chest causing him to hit his head on the ground. Id.
Plaintiff claims that the other unknown officers were cursing and “mentally abusing me” and
“lying on police reports.” Id.
Plaintiff also sues the “K-9 Training Department or Supervisor.” Plaintiff alleges that the
Training Department or Supervisor failed to train “K-9 Officers properly or purposely trained
officers to use K-9 to attack suspects once in a submissive position.” Id. at 5. In addition, Plaintiff
asserts claims against the Paterson Police Department and the Chief of Police. Plaintiff contends
that the Chief failed to supervise the “Patterson Police Officers, allowing excessive force and
police brutality to [Plaintiff] and many others abused before me.” Id. Plaintiff also claims that
inadequate training which resulted in the excessive force against him. Id.
Plaintiff seeks $5,000,000 in damages for “police brutality and using excessive force
causing me PTSD and an even further limited ability” to use Plaintiffs right leg. Id. at 12. Plaintiff
asks that all officers involved be removed from the police department, that the officers receive
better training and supervision, and that cameras be installed in all police vehicles and on all
officers. Idat 13.
II.
STANDARD OF REVIEW
Pursuant to
§ 1915, the Court excuses Plaintiff from prepayment of fees because he has
“establish[edl that he unable to pay the costs of his suit.” Walker v. People Exp. Airlines, Inc., $86
F.2d 598, 601 (3d Cir. 1989). However, when allowing a plaintiff to proceed informapauperis,
the Court must review the complaint and dismiss the action if it determines that the action is
frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief against a defendant who is immune. 2$ U.S.C.
under
§ 1915(e)(2). When considering dismissal
§ 191 5(e)(2)(B)(ii) for failure to state a claim on which relief can be granted, the Court must
apply the same standard of review as that for dismissing a complaint under Federal Rule of Civil
Procedure 12(b)(6). Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012). To survive
dismissal under Rule 12(b)(6), a complaint must contain sufficient factual matter to state a claim
that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 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.
In addition, because the Plaintiff is proceeding pro Se, the Court construes the pleadings
liberally and holds them to a less stringent standard than those filed by attorneys. Haines v. Kerner,
404 U.S. 519, 520 (1972). “The Court need not, however, credit apro se plaintiffs bald assertions
or legal conclusions.” D ‘Agostino v. CECOM RDEC, No. 10-4558, 2010 WL 3719623, at *1
(D.N.J. Sept. 14, 2010) (quoting Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.
1997)) (internal quotation marks omitted).
III.
ANALYSIS
A. Section 1983
42 U.S.C.
§ 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory. 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[.]
.
.
Section 1983 does not provide substantive rights; rather, Section 1983 provides a vehicle
for vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
In order to state claim under Section 1983, a plaintiff must demonstrate that “(1) a person deprived
him of a federal right; and (2) the person who deprived him of that right acted under color of state
or territorial law.” Burt v. CfG Health Sys., No. 15-2279, 2015 WL 1646849, at *2 (D.N.J. Apr.
14, 2015).
B. Qualified Immunity
When a state official’s actions give rise to a Section 1983 claim, qualified immunity may
shield the officer from liability. Wright v. City ofPhiladelphia, 409 F.3d 595, 599 (3d Cir. 2005).
The Supreme Court and the Third Circuit have stressed that questions of immunity should be
resolved at the earliest possible stage of litigation. Hunter v. Thyant, 502 U.S. 224, 227 (1991);
Miller v. Clinton Cty., 544 F.3d 542, 547 (3d Cir. 200$). However, because “{t]he defendant has
the burden of establishing qualified immunity,” and this Court is simply performing a screening
function, the Court is unable to determine qualified immunity at this juncture. Kopec
Tate, 361
f.3d 772, 776 (3d Cir. 2004) (stating that officer defendants must show that it was not clear
whether alleged conduct would be unlawful to be entitled to qualified immunity).
C. Consideration of Unnamed Defendants
As a threshold matter the Court must determine whether to allow claims to be brought
against the unnamed Defendants in Plaintiffs F AC. Rule 10(a) of the Federal Rules of Civil
Procedure requires that a pleading set forth, among other things, the names of all the parties. While
the “K-9 Police Officer,” the “Female Officer,” and the “Other Officers” mentioned in the
complaint are unnamed, this does not foreclose claims against the officers at this stage. Fictitious
parties, or “John/Jane Doe” defendants are routinely used as stand-ins for real parties until
discovery permits the intended defendants to be installed. See, e.g., Abels v. State farm fire &
Cas. Co., 770 F.2d 26, 3 1-32 (3d Cir. 1985); Varlackv. SWC Caribbean, Inc., 550 F.2d 171, 17475 (3d Cir. 1977). Fictitious parties must eventually be dismissed if discovery yields no identities.
See Blakeslee v. Clinton Cly., 336 F. App’x 248, 249 (3d Cir. 2009) (stating that the “[u]se of John
Doe defendants is pennissible in certain situations until reasonable discovery permits the true
defendants to be identified”).
Here, allowing Plaintiffs claims to proceed into pretrial discovery would not prejudice the
“Doe” defendants and dismissing his claims would be unfairly prejudicial on the Plaintiff See
Scheetz v. Morning Call, Inc., 130 F.R.D. 34, 37 (E.D. Pa. 1990) (stating that due process problems
may arise ifjudgernent were to issue against Doe defendants, or if “findings of fact or law were to
occur before they had a chance to participate,” but that because Doe defendants must eventually
be dismissed if no identities are found, these are not overriding concerns). After pretrial discovery,
if the names of the K-9 Police Officer, the Female Officer, or the “Other Officers” are still
unknown, the claims will be dismissed. Btakeslee, 336 F. App’x at 249 (citing Scheetz, 130 F.R.D.
at 37).
B. Plaintiff’s Claims
Plaintiffs Complaint is not broken up into fonnal counts, nor does it clearly separate the
claims against individual Defendants. The Court will first address the excessive force claims
against each individual Defendant and then proceed to the failure to intervene against each
individual Defendant. Finally, the Court will analyze the failure to train and failure to supervise
claims against the Town of Patterson.
a. Excessive Force Against Individual Defendants
Plaintiff brings excessive force claims against the K-9 Officer, the female Officer, and
Officer Rafael Campos. “A cause of action exists under
§ 1983 when a law enforcement officer
uses force so excessive that it violates” the Fourth Amendment’s protection from unreasonable
search and seizure. Groman v. Twp. ofManalapan, 47 F.3d 628, 633-34 (3d Cir. 1995). “Police
officers are privileged to commit a battery pursuant to a lawful arrest, but the privilege is negated
by the use of excessive force.” Id. at 634 (citing Edwards v. City of Philadelphia, $60 F.2d 56$,
572 (3d Cir. 198$)). “A claim for excessive force under the Fourth Amendment requires a plaintiff
to show that a seizure occurred and that it was unreasonable.” Curtey v. Kiem, 298 F.3d 271, 279
(3d Cir. 2002); see Graham 490 U.S. at 396. The reasonableness inquiry is objective and is
measured by “careful attention to the facts and circumstances of each particular case, including (1)
the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety
of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest
by flight.” Graham, 490 U.S. at 396. The Third Circuit has also recognized other factors such as
the duration of the action, whether the action takes place in the context of an arrest, the possibly
that the suspect may be armed, and the number of persons with whom the police officers must
contend at one time. See Sharrar v. Felsing, 12$ F.3d 810, 822 (3d Cir. 1997).
Moreover, a court must consider whether a seizure was reasonable “from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Velez v.
Fuentes, No. 15-6939, 2016 WL 4107689, at *4 (D.N.J. July 29, 2016) (quoting Graham, 490 U.s.
at 396-97). As a result, a court must consider whether the officers’ actions were “objectively
reasonable in light of the facts and circumstances confronting them, without regard to the officers’
underlying intent or motivation.” Norcross v. Town of Hammonton, No. 04-2536, 2008 WL
9027248, at *4 (D.N.J. Feb. 5, 200$) (quoting Graham, 490 U.S. at 397). The reasonableness
inquiry is objective but must also consider that the circumstances of police action are often “tense,
uncertain, and rapidly evolving.” Graham, 490 U.S. at 396. When more than one officer is sued
on a Fourth Amendment excessive force claim, the district court must evaluate each officer’s
liability separately. See Kaucher v. Cly. of Bucks, 455 F.3d 41$, n.7 (3d Cir. 2006) (“In order to
prevail on a [Section] 1983 claim against multiple defendants, a plaintiff must show that each
individual defendant violated his constitutional rights” (emphasis added) (quoting Estate of Smith
v. Marasco, 430 F.3d 140, 151 (3d Cir. 2005))).
i.
“The K-9 Officer”
Plaintiff claims “The K-9 Officer” used excessive force in violation of the fourth
Amendment while apprehending Plaintiff. F AC at 4. Specifically, Plaintiff alleges that during the
arrest, the K-9 Officer “[t]umed [the] K-9 on me to attac[k], [the] K-9 was yanked really hard back
by [the] officer causing my flesh to be torn all over my body.” Id.
The “use of a police dog to bite and hold a suspect is not per se unreasonable.” Moore v.
Vangelo, 222 F. App’x 167, 170 (3d Cir. 2007). In Vangeto, the Third Circuit considered whether
an officer used excessive force when ordering his police dog to bite and hold a plaintiff, who, at
the time, was attempting to break up a violent fight. Id. at 169. Upon arriving on the scene, the
officer attempted, unsuccessfully, to verbally warn the combatants to stop fighting. Id. The officer
instructed the police dog to bite and hold the plaintiff. Id. The dog held its bite until he was
ordered off by the officer who then arrested the plaintiff. Id. Subsequently, the plaintiff sued the
officer pursuant to Section 1983, asserting that the officer violated his fourth Amendment right to
be free from excessive force. Id. Analyzing the case under the Graham reasonableness factors,
the district court, followed by the Third Circuit, found that the officer was entitled to qualified
immunity because the use of a police dog was a reasonable use of force in response to a violent
fight where combatants did not respond to verbal orders and the officer was outnumbered. See
Moore v. Vangelo, No. 03-4718, 2005 WL 217885 at *7 (E.D. Pa. Sept. 6, 2005), aff’d, 222 F.
App’x 167 (3d Cir. 2007).
Here, Plaintiff alleges that after he was on the ground, an officer put his knee on Plaintiffs
back and began to handcuff him. FAC at 9. Plaintiff contends that the K-9 Officer told the officer
subduing Plaintiff to “let him go I got something for him.” Id. at 9. The Officer then commanded
the dog to attack. Id. Plaintiff further claims that once the dog had a hold on him, the Officer
grabbed the vest of the dog and pulled back quickly
—
causing extreme pain and tearing Plaintiffs
flesh. Id. at 9. This was repeated on other parts of Plaintiffs body. Id. at 9-10.
Taking Plaintiffs factual allegations as true, the actions of the K-9 Officer could constitute
excessive force in violation of the fourth Amendment. Here, the severity of the crime is uncertain.
While Plaintiff admits to running from the police and placing fake license plates on his vehicle, he
also alleges that he had no warrant out for his arrest, that the vehicle was not stolen, and that he
did not have any contraband on his person or in the vehicle. FAC at 11. In addition, according to
the FAC, Plaintiff was already apprehended, and no longer posed a threat to the arresting officers,
when the K-9 Officer gave the command to attack. Id. at 9. Further, Plaintiff was unarmed and
outnumbered by the officers. Id. Analyzing these facts under Graham, the use of the police dog
to repeatedly injure and maim Plaintiff when he was no longer a threat plausibly pleads that the
K-9 Officer acted unreasonably. Accordingly, Plaintiffs excessive force claim against the K-9
Officer remains.
ii. “Female Officer”
Plaintiff also brings an excessive force claim against the Female Officer. Specifically,
Plaintiff claims that while he was attempting to get on the ground, the female Officer kicked him
in the chest, causing him to fall backwards and bang his head on the pavement. FAC at 9. Plaintiff
had allegedly been explaining to the police that his polio injury made it difficult for him to get
down on his stomach. Id.
By the time the alleged excessive force took place, Plaintiff had already exited his vehicle
and been surrounded by officers with guns drawn and trained on him. Id. Plaintiff claims that he
was attempting to comply with the officers’ instructions. At this point, the Court cannot determine
that the female Officer’s conduct was reasonable. See Wade v. Colaner, No. 06-3715, 2010 WL
1490590 at *8..9 (D.N.J. Apr. 13, 2010) (holding that a jury could find officer’s use of force
unreasonable when the suspect had been half hand-cuffed and was complying with officer’s
orders). Accordingly, Plaintiffs excessive force claim against the Female Officer remains.
iii.
Officer Rafael Campos
Plaintiff also brings an excessive force claim against Officer Rafael Campos (“Officer
Campos”) of the Paterson Police Department. Plaintiff alleges that Officer Campos was the
“officer [who] chased and arrested me.
.
.“
FAC at 4. Plaintiff includes few facts and does not
allege any facts showing that Officer Campos using any force, beyond the use of handcuffs, against
Plaintiff. Therefore, the Court finds that Plaintiff has failed to make plausible allegations to
establish his excessive force claim against Officer Campos and this claim is dismissed.
b. Failure to Intervene
Next, Plaintiff brings claims for failure to intervene against the Female Officer, the “Other
Officers,” and Officer Rafael Campos. “It is not necessary that a police officer actually participate
in the use of excessive force to be held liable under section 1983.” Garbacik v. Janson, 111 F.
App’x 91, 94 (3d Cir. 2004) (quoting Webb v. Hiykel, 713 F.2d 405
($th
Cir. 1983)). Rather, if an
officer is present at the scene of the incident and fails to take reasonable steps to protect the victim
of another officer’s use of excessive force, the non-intervening officer can beheld liable. Id. The
officer, however, must have a “realistic and reasonable opportunity to intervene” in order to be
held liable. Smith v. Mensinger, 293 F.3d 641, 651 (3d Cir. 2002) (internal quotation omitted);
see Bryant v. City ofPhiladelphia, $90 F. Supp. 2d 591, 601 (E.D. Pa. 2012), affd (Mar. 15, 2013)
(finding that “if a police officer is present when another officer violates a citizen’s constitutional
rights, the first officer is liable under
§ 1983 if that officer had reason to know that a constitutional
violation, such as excessive force, was being used, and that officer had a reasonable and realistic
opportunity to intervene”) (internal quotation omitted).
In this case, based on Plaintiffs allegations, the Female Officer, the “Other Officers” at the
scene, and Officer Campos did not take reasonable steps to protect Plaintiff from the alleged
excessive force used by the K-9 Police Officer. See Smith, 293 F.3d at 652 (stating “if [he] can
show at trial that an officer attacked him while [another officer] ignored a realistic opportunity to
intervene, he can recover” (quoting Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000) (internal
quotation marks omitted))). Plaintiff recounts that all officers involved were “screaming out
insults and cursing at [Plaintiff]” while the K-9 Officer allowed the dog to bite Plaintiff and then
pulled the dog back in order to cause damage. FAC at 9. Plaintiff alleges that this went on for “a
while,” giving the other officers present the time and ability to try to stop the behavior of the K-9
Officer. Id. If true, then the Female Officer, the Other Officers, and Officer Campos would have
a duty to take reasonable steps to protect the Plaintiff from the K-9 Officer’s use of excessive force.
Thus, Plaintiffs failure to intervene claim remains.
c. Failure to Train and Failure to Supervise Against the Town of Patterson,
the K-9 Training Department, and the Chief of Police4
The Court will treat Plaintiffs claims against the “K-9 Training Department,” the Patterson
Police Department,5 and the Chief of Patterson Police in his official capacity as against the Town
of Patterson itself. Plaintiff claims that “[t]hey lacked to train [sic] K-9 Officers properly or
purposely trained officers to use K-9 to attack suspects once in a submissive position when not
running or fighting.” FAC at 5. Plaintiff alleges that the Chief of the Paterson Police Department
failed to supervise and failed to train the Department’s officers. Specifically, Plaintiff alleges that
the Chief of Police was liable for “[lack of] supervision [of] Paterson police officers [and] allowing
excessive force and police brutality.” Id. Further, Plaintiff alleges that the Chief of Police “[failed
At the outset, Plaintiff lists the Paterson Police Department, the ‘K-9 Training Department,” and
the Chief of Paterson Police as Defendants. For the purposes of this opinion, the Court assumes
that the “K-9 Training Department” is an entity within the Town of Paterson and therefore the
claims are against the Town of Paterson itself. Under Section 1983, the Third Circuit has treated
a municipality and its police department as a single entity. Bonenberger v. Pyrnoztth Tvp., 132
F.3d 20, 25 n.4 (3d Cir. 1997); see also Fadilla v. Tp. of Cheny Hill, 110 F. App’x 272, 278 (3d
Cir. 2004) (noting that police departments are not separate judicial entities but simply “an
administrative arm of the local municipality”). The claims against the Police Chief in his official
capacity are also claims against the municipality. See Kentucky v. Graham, 473 U.S. 159, 166
(1985) (holding that “[o]fficial-capacity suits [] ‘generally represent only another way of pleading
an action against an entity of which an officer is an agent.” (quoting Monell v. New York City
Dept. of Soc. Servs., 436 U.S. 658, 690 (1978)). Therefore, the Court analyzes these claims
together.
‘
While Plaintiff lists the Patterson Police Department as a Defendant, he does not state any
specific claims against it.
to train] properly and [and is liable for] not having video cameras in Paterson NJ police vehicles,
[which was done] mainly to hide the excessive force and police brutality.” Id.
While a municipality may be liable under Section 1983, it cannot be held liable under a
theory of respondeat superior. Monell, 436 U.S. at 691. “A municipality may only be held liable
under
§ 1983 if the plaintiff identifies a municipal ‘policy’ or ‘custom’ that was the ‘moving force’
behind the injury.” Jewell v. Ridley TMp., 497 F. App’x 182, 185 (3d Cir. 2012) (quoting Monell,
436 U.S. at 694). “In other words, the plaintiff must show that the municipality, through one of
its policymakers, affirmatively proclaimed the policy, or acquiesced in the widespread custom,
that caused the violation.” Noble v. City of Camden, 112 F. Supp. 3d 208, 221 (D.N.J. 2015)
(internal citation omitted). “A plaintiff may show the existence ofapolicy when a decision-maker
with final authority issues an official proclamation, policy, or edict.
.
.
.
[A c]ttstom may be
established by showing that a given course of conduct, although not specifically endorsed or
authorized by law, is so well-settled and permanent as virtually to constitute law.” Id. (emphases
added) (internal quotations and citations omitted).
Concerning appropriate training, “the inadequacy of police training may serve as the basis
for
§ 1983 liability only where the failure to train amounts to deliberate indifference to the rights
of persons with whom the police come into contact.” City of Canton, Ohio v. Harris, 489 U.S.
378, 3 88-89 (1989) (“Only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by
a municipality—a ‘policy’ as defined by our prior cases—can a city be liable for such a failure
under
§ 1983.”). “Deliberate indifference’ is a stringent standard of fault, requiring proof that a
municipal actor disregarded a known or obvious consequence of his action.
.
.
.
Ordinaril, a
pattern of similar constitutional violations by untrained employees is necessary to demonstrate
deliberate indifference for purposes of failure to train.” Thomas v. Cumberland Cty., 749 f.3d
217, 223 (3d Cir. 2014) (emphasis added) (internal quotations, citations, and brackets omitted).6
Additionally, a plaintiff must show that the unlawful policy or custom was the proximate
cause of the plaintiffs injuries. The United States Supreme Court has observed the following as
to proximate cause:
As our § 1983 municipal liability jurisprudence illustrates, however,
it is not enough for a § 1983 plaintiff merely to identifi conduct
properly attributable to the municipality. The plaintiff must also
demonstrate that, through its deliberate conduct, the municipality
was the ‘moving force’ behind the injury alleged. That is, a plaintiff
must show that the municipal action was taken with the requisite
degree of culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of federal rights.
Bd. of Ctv. Comm’rs ofBiyan Ctv., Oki. v. Brown, 520 U.S. 397, 404 (1997); see also Watson v.
Abington Tup., 478 F.3d 144, 156 (3d Cir. 2007); Bielevicz v. Ditbinon, 915 f.2d 845, 850 (3d
Cir. 1990).
A failure to supervise claim is akin to failure to train. It is derived from a similar category
of policy or practice liability. Barkes v. first Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014),
cert. granted, reversed on other groitnds sub non?. Taylor v. Barkes, 135 S. Ct. 2042 (201 5).
Supervision entails training, establishing perfonuance parameters, promulgating rules, monitoring
adherence to performance standards, and responding to unacceptable performance. Sample v.
6
“{I]n certain situations, the need for training can be said to be so obvious, that failure to do so
could properly be characterized as ‘deliberate indifference’ to constitutional rights even without a
pattern of constitutional violations.” Thomas, 749 F.3d at 223 (internal quotations omitted) (citing
Canton, 489 U.S. at 390 n.10). These “single-incident” failure to train cases are, however, rare.
“Liability in single-incident cases depends on the likelihood that the situation will recur and the
predictability that an officer lacking specific tools to handle that situation will violate citizens’
rights.” Thomas, 749 f.3d at 223—24 (internal quotation, citation, and bracket omitted).
Diecks, $85 F.2d 1099, 1116 (3d Cir. 1989). In Sample, the Third Circuit developed a four-part
test for determining whether an official may be held liable on a claim for failure to supervise. Id.
at 1118. The plaintiff must identify a supervisory policy or practice that the supervisor failed to
employ, and then prove that: (1) the policy or procedures in effect at the time of the alleged injury
created an unreasonable risk of a constitutional violation; (2) the defendant/supervisor was aware
that the policy created an unreasonable risk; (3) the defendant was indifferent to that risk; and (4)
the constitutional injury was caused by the failure to implement the supervisory practice or
procedure. Id.
Plaintiff alleges that the K-9 Training Department “purposely trained officers to use K-9
to attack suspects once in a submissive position when not running or fighting.” FAC at 5.
However, Plaintiff makes no plausible factual allegations to support this conclusory allegation.
Plaintiff has not alleged any facts that point towards a “pattern” or “practice” of training the K-9
handlers to inflict gratuitous punishment or unreasonable pain. To survive review under the Rule
1 2(b)(6) pleading standard, Plaintiff must plead facts that “allow the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. Ashcroft, 556 U.S. at 678 (quoting
Bell Ati, Corp., 550 U.S. at 570). Regarding this claim, Plaintiff has essentially only offered a
conclusion that the K-9 Training Department failed to adequately train its officers. As a result,
these claims are dismissed.
The Chief cannot be held liable under a respondeat superior theory pursuant to Section
1983, nor has Plaintiff alleged plausible facts that would establish a “pattern” or “practice” of
training police officers in a way that evinces a “deliberate indifference” to the constitutional rights
of the people with whom they interact. Plaintiff also does not identify any supervisory policy or
practice in place at the time of the alleged injury, or any indifference to the risk of constitutional
violations by those he supervises. Plaintiff only provides conclusory statements about “excessive
force” and “police brutality” along with a “lack of training.” This is not sufficient to plausibly
allege a claim that the Chief is liable for either a failure to train or a failure to supervise.
Therefore, Plaintiffs failure to train claim against the K-9 Training Department, and his
claims for failure to train and failure to supervise against the Chief of Police, are dismissed without
prejudice.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs application to proceed informa
pauperis. Plaintiffs claims for (1) excessive force against the K-9 Officer, and the Female Officer,
and claims for (2) failure to intervene against Female Officer, Officer Rafael Campos, and the
Other Officers remain. All other claims are dismissed without prejudice.
When dismissing claims brought by a pro se plaintiff, a court must decide whether the
dismissal will be with prejudice or without prejudice, the latter allowing a plaintiff to correct any
deficiencies in their complaint. Grayson v. Mayview State Hosp., 293 F.3d 103, 110-111 (3d Cir.
2002). Typically, district courts will deny leave to amend only if: (a) the moving party’s delay in
seeking amendment is undue, motivated by bad faith, or prejudicial to the non-moving party or (b)
the amendment would be futile. Adams v. Gould, Inc., 739 F.2d 858, 864 (3d Cir. 1984). At this
point, the Court cannot conclude that Plaintiffs dismissed claims are futile. Therefore, the Court
shall provide Plaintiff thirty (30) days to file a second amended complaint that cures the
deficiencies set forth herein. If Plaintiff does not submit a second amended complaint curing these
deficiencies within thirty days, the dismissal of these claims will be with prejudice. A dismissal
with prejudice means that Plaintiff will not be able to file any future suit against the Defendants
concerning the allegations in the FAC. An appropriate form of Order accompanies this Opinion.
Dated: April 16, 2018
cff\f
John Michael Vazque, ‘tIS.D.J.
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