MESADIEU v. CITY OF ELIZABETH et al

Filing 2

OPINION. Signed by Judge John Michael Vazquez on 9/7/17. (cm, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GUILIO MESADIEU,

Plaintiff
Civil Action No. 17-3252
V.

OPINION
CITY OF ELIZABETH, et al.,

Defendants.

John Michael Vazguez, U.S.D.J.

Plaintiff seeks to bring this action informapatiperis pursuant to 2$ U.S.C.

§ 1915. D.E.

1. For the reasons discussed below, the Court GRANTS Plaintiffs application to proceed informa
pauperis but Counts I, II, III (as to alleged searches and the 2002 arrest only), IV, V, VI, VII, VIII,
X, XI (as to the 2002 arrest only), and XII of the Complaint are DISMISSED without prejudice

pursuant to 2$ U.S.C.

§ 1915(e)(2)(B) for failing to state a claim upon which relief can be granted.

Counts III and IX remain as to Plaintiffs 2001 and 2006 arrests.
Under Section 1915, the Court may excuse a litigant from prepayment of fees when the
litigant “establish[es] that he is unable to pay the costs of his suit.” Walker v. People Express
Airlines, Inc., $86 F.2d 598, 601 (3d Cir. 1989). Plaintiff sufficiently establishes his inability to
pay, and the Court grants his application to proceed informa pauperis without prepayment of fees
and costs.
However, when allowing a plaintiff to proceed informa pauperis, 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. 28 U.S.C.

§ 1915(e)(2). When considering dismissal under § 1915(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 Fed. App’x 120, 122 (3d Cir. 2012). To state a claim that survives a Rule

1 2(b)(6) motion to dismiss, a complaint must contain “enough facts to state a claim to relief that
is plausible on its face.” Belt Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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). Because Plaintiff is proceedingpro 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 a pro se plaintiffs ‘bald

assertions’ or ‘legal conclusions.” D ‘Agostino v. CECOM RDEC, No. 10-4558, 2010 WL
3719623, at *1 (D.N.J. Sept. 10, 2010).
I.

Background

This case appears to concern allegations of racial profiling, among others. Complaint
(“Compl.”) (D.E. 1) at 3. Plaintiff alleges that, “[s]everal times throughout the course of his life,”
Plaintiff, an African-American man, “was arrested by the defendants[1] and charged with crimes

Plaintiff brings this case against the following entities: City of Elizabeth, Elizabeth Police
Department, and Union County. Because “[a] municipality and its police department are a single
entity for the purposes of § 1983 liability,” the claims against the Elizabeth Police Department
must be dismissed. McCann v. Winslow Thtp., No. 07-0052, 2007 WL 3349324, at *1 (D.N.J.
Nov. 7, 2007) (citing Boneberger v. Plymouth Th1p., 132 F.3d 20. 25 n.4 (3d Cir. 1997))
(dismissing claims against police department when plaintiffs also asserted claims against the
municipality). Thus, the City of Elizabeth and Union County together will be referred to as the
“Entity Defendants.”
2

based on the color of his skin.” Id. at 10. On January 10, 2001, Plaintiff alleges that as he was
leaving the store, he was “stopped and frisked” by Defendant Gunter and his partner “for no
reason.” Id. at 10-11. He alleges that Gunter proceeded to go into the backyard and returned “with

[] there.” Plaintiff was subsequently charged with

some drugs he claimed [were] stashed

possession of drugs. Id. at 11. Plaintiff then describes an incident in May of 2002 when “[t]he
cops were in [his] building doing a random raid” and although Plaintiff alleges he had no drugs or
money at the time, “Defendant Micros

.

.

.

charged [him] with possession with the intent to

distribute.” Id.
Then, in November of 2006, Plaintiff alleges that he ran into an “associate” and received a
ride from him. Id. During the drive, the car was stopped by the police, who allegedly “snatched
[Plaintiff and his associate] out of the vehicle and began searching [the car and the men].” Id.
Plaintiff alleges the police searched them without their “consent or a warrant.” Id. Plaintiff also
alleges that, despite not having drugs on him, he was arrested for possession with the intent to
distribute. Id.

Plaintiff states that he “filed numerous complaints against these officers, with

[]

internal affairs, due to their constant harassment and filing of false charges,” but they were never
investigated. Id.
While in prison,2 Plaintiff was informed of a report published by the American Civil
Liberties Union (the “Report”), which “indicated severe disparities in the number of black/white
arrests” in four cities, including Elizabeth. Id. at 12. Plaintiff alleges that the Report “proves that

Plaintiff also brings this case against the following individuals: James Cosgrove (Chief of
Police for Elizabeth Police Department), Officer Mikros (Elizabeth Police Officer), TY Kelly
(Elizabeth Police Officer), Theodore Romankow (Prosecutor), Christopher Porrino (Attorney
General), and Officer Gunter (Elizabeth Police Officer) (the “Individual Defendants,” and
collectively, with the Entity Defendants, “Defendants”).
2

Plaintiff does not indicate the reason he was in prison or what his sentence was.
3

during the relevant time period[,] the Elizabeth police department had a well-established policy of
selectively enforcing the law against racial minorities” and that Defendants “agreed on a course of
conduct that was designed to discriminate against racial minorities for the purpose of depriving
them equal protection of the laws.” Id.
Plaintiff then describes specific instances of misconduct by the Individual Defendants. F or
instance, Plaintiff alleges that “Defendant Kelly assisted [DJefendant Micros in arresting Plaintiff
and falsifying police reports to cover up their misconduct.” Id. Also, Defendant Cosgrove,
according to Plaintiff, as the supervisor “failed to act to curb [the officers’] behavior or otherwise
correct the constitutional violations.” Id. at 13. Cosgrove also was allegedly aware of “the
selective policing policy” and “code of silence” in the department, “whereby officers would not
report misconduct of other officers and failed to take the necessary steps to break the ‘code of
silence.” Id. Additionally, Plaintiff states that Cosgrove “failed to inform the prosecutor about
exculpatory information,” thus preventing Plaintiff from being able to “mount an effective defense
against the state’s accusations” and getting his charges dismissed. Id.3
Plaintiff states that “[t]he full extent of these racial profiling practices” was crucial to the
evaluation of plaintiffs claims, and he is therefore “entitled to a vacation of his convictions.” Id.
at 14. In terms of Defendants City of Elizabeth, Union County, Porrino and Rornankow, Plaintiff
alleges they had supervisory roles and “permitted, encouraged, tolerated and knowingly
acquiesced to an official pattern, practice or custom of police officers.” Id. at 15. By adopting
policies and failing “to take proper action to protect the citizens of Elizabeth,” Plaintiff alleges that
these Defendants are “directly liable for Plaintiffs damages.” Id. In particular, Plaintiff alleges

Plaintiff also alleges, in conclusory fashion, that Defendants Romankow and Porrino suppressed
evidence of racial profiling. Id.
4

the following policies and customs: inadequate training, supervision, discipline, screening and
hiring. Id. at 16. In other words, Plaintiff alleges that these Defendants created “an atmosphere
where

[] unconstitutional conduct is tolerated, ratified and condoned, in deliberate indifference and

reckless disregard to the welfare of racial minorities, including Plaintiff.” Id. at 17.
Plaintiff alleges the following causes of action: (1) racial profiling in violation of the
Fourteenth Amendment; (2) racial discrimination in violation of the Equal Protection Clause; (3)
illegal search and seizure in violation of the Fourth and Fourteenth Amendments; (4) violation of
42 U.S.C.

§ 1985(3) and 42 U.S.C. § 1983 conspiracy; (5) preventing access to the courts, post-

conviction relief and civil remedies in violation of the First and Fourteenth Amendments; (6) 42
U.S.C. 1986 conspiracy; (7) failure to adequately train and/or supervise; (8) “arresting and/or
detaining Plaintiffbased on race” in violation of “the tort of assault under the law of New Jersey;”4
(9) wrongful imprisonment; (10) racial discrimination pursuant to New Jersey law; (11) intentional
infliction of emotional distress; and (12) negligence for failure to adequately train and/or supervise
employees. Id. at 19-21.
Due to these alleged violations, Plaintiff requests compensatory and punitive damages, as
well as an injunction stating that “Plaintiff was subjected to racial profiling,” prohibiting
defendants “from having any further contact with Plaintiff,” and ordering Defendants “to disclose
the full extent of their racial profiling practices to the Plaintiff and public at large.” Id. at 22-23 •6

“The Court is unclear as to what Plaintiff is claiming regarding the arrest, but construes this count
as Plaintiff alleging common law assault when he was arrested based on his race pursuant to.
Counts I, II, III, VIII, Villi, and X are brought against Defendants Mikros, Kelly and Gunter
only. Counts IV, VI and XI are brought against all Defendants. Counts VII and XII are brought
against Defendants Cosgrove, Romankow, Porrino and the Entity Defendants.
6

Plaintiff fails to set forth any of the requirements for injunctive relief. See Parkelt v. Senato, 639
F. App’x 115, 117 (3d Cir. 2016) (requiring the party moving for an injunction to establish: “(1) a
5

II.

Analysis
At the outset, the Court notes that it will not address potential defenses to the claims raised

herein. In particular, it appears that Plaintiffs allegations concern incidents whose statute of
limitations has run. See, e.g., Rolax v. Whitman, 175 F. Supp. 2d 720 (D.N.J. 2001), aff’d, 53 F.
App’x 635 (3d Cir. 2002) (“Actions filed under

§

1983 in New Jersey are subject to two-year

personal injury statute of limitations.”); Compi. at 11 (listing allegations that occurred in 2001,
2002 and 2006). The Court will not address the statute of limitations or any other defenses at this
time; Defendants may raise them at the motion to dismiss stage if they so choose.
Section 1983

—

Individual liability (Counts I, II, III, V. and X)7

Claims of constitutional violations must be brought pursuant to 42 U.S.C.

§

1983. See

Woodyard v. Cty. of Essex, 514 F. App’x 177, 180 (3d Cir. 2013). 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).
Plaintiff alleges violations of his federal constitutional rights, including his First, Fourth
and fourteenth Amendment rights against various state and municipal employees, in their

likelihood of success on the merits; (2) that [he] will suffer irreparable harm if the injunction is
denied; (3) that granting preliminary relief will not result in even greater harn to the nonmoving
party; and (4) that the public interest favors such relief.”)
The Court construes Plaintiffs Count X, racial discrimination under New Jersey law, as being
brought pursuant to the New Jersey Civil Rights Act (“NJCRA”). Panaretto v. City of Vinetand,
160 F. Supp. 3d 734, 744 (D.N.J. 2016), on reconsideration in part, No. 12-4 165, 2016 WL
3638108 (D.N.J. July 7, 2016) (construing pro se plaintiffs claims under the New Jersey
constitution as claims under the NJCRA). To the extent Plaintiffs NJCRA claims mirror his
Section 1983 claims, the NJCRA claims are addressed in tandem with his federal causes of action.
See Pettit v. New Jersey, No. 09-3735, 2011 WL 1325614, at *3 (D.N.J. Mar. 30, 2011) (“This
district has repeatedly interpreted [the] NJCRA analogously to § 1983.”).
6

individual and official capacities.8 For the purposes of this screening Opinion, the Court will
assume that Plaintiff has adequately alleged that Defendants are state actors. See Barna v. City of
Perth Arnbov, 42 f.3d 809, 816 (3d Cir. 1994) (“[A]cts of a state or local employee in her official
capacity will generally be found to have occurred under color of state law.”). Thus, the Court will
address the substance of each alleged constitutional violation.
Racial Profiling (Count I)
Plaintiff brings Count I against Defendants Mikros, Kelly and Gunter, alleging that they
“racially profil[ed] Plaintiff, a racial minority,” which “constituted selective enforcement of the
law in violation of the Fourteenth [Amendment].” Compl. at 19.
“A claim for racial profiling is typically advanced under two theories:
“selective enforcement

.

.

.

a claim for

or a claim for an equal protection violation.” Mitchell v. Twp. of

Pemberton, No. 09-810, 2010 WL 2540466, at *5 (D.N.J. June 17, 2010). Under either of these
theories, the mere use of the conclusory term “racial profiling” in a complaint is not sufficient to
demonstrate that such a policy, in fact, existed. See Id. (“Simply stating that [racial profiling]
exists, or that because the officers stopped [p]laintiff based on his race they must have been doing
so pursuant to a racial profiling policy or custom, is not sufficient to meet the proper federal court
pleading standards.”).

Since Plaintiff only generally alleges racial profiling, and gives no

additional factual support besides his own arrests and the Report (which he does not attach and
does not appear relevant to Plaintiffs particular arrests), he has not plausibly pled this cause of
action. Therefore, Count I is dismissed without prejudice.

8

Plaintiff brings some of his constitutional claims against both the Individual Defendants and the
Entity Defendants. Since local governments may only be held liable under Section 1983 consistent
with the Supreme Court’s decision in Monell v. Dep ‘t ofSoc. Sen’s. of City ofNew York, 436 U.S.
658 (1978), the liability of the Entity Defendants will be discussed in the “Monell Liability”
section.
7

fourteenth Amendment

—

Equal Protection (Count II)

Plaintiff also alleges that Defendants Mikros, Kelly and Gunter discriminated against
Plaintiff “based on considerations of race,” which “denied him equal protection of the laws” in
violation of the Equal Protection Clause. Compl. at 19. The Fourteenth Amendment’s Equal
Protection Clause provides that no State shall “deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV

§ 1. To prevail on an Equal Protection claim, a

plaintiff “must present evidence that s/he has been treated differently from persons who are
similarly situated.” Renchenski v. Williams, 622 F.3d 315, 337 (3d Cir. 2010) (quoting Williams
v. Morton, 343 F.3d 212, 221 (3d Cir. 2003)).
Plaintiff alleges that he was discriminated against because of his race. However, this is a
conclusory statement for which Plaintiff provides no supporting factual allegations. Plaintiff does
not allege that Defendants treated similarly situated, non African-Americans differently. In fact,
his only support for African-Americans being treated differently from non-African-Americans is
the Report, which he does not cite to directly and appears to have no bearing on Plaintiffs case.
Thus, Plaintiff fails to state a claim for a violation of the Equal Protection Clause and Count II is
dismissed without prejudice.
Fourth Amendment (Counts III and 1X9)

The Court construes Plaintiffs Count IX for “wrongful imprisonment” to be a claim for false
imprisonment under New Jersey law. “false arrest and false imprisonment overlap; the fonner is
a species of the latter.” Wallace v. Kato, 549 U.S. 384 (2007); see also Newman v. Barrett Ttp.,
No. 15-00376, 2015 WL 7755672, at *3 (M.D. Pa. Dec. 2, 2015) (“false arrest and false
imprisonment are essentially the same claim.”). Additionally, the elements for false imprisonment
under New Jersey and federal law are the same. Geissler v. City ofAti. City, 198 F. Supp. 3d 389,
397 (D.N.J. 2016). Therefore, the same analysis applies to Count IX and the false arrest claims in
Count III.
$

Next, Plaintiff states that his “arrest based on race” and Defendants Mikros, Kelly and
Gunter’s search of him each constituted an illegal search and seizure in violation of the Fourth
Amendment. Compl. at 19. The Court construes these claims as being for false arrest and
unreasonable search, respectively.
“The Fourth Amendment, which protects persons from ‘unreasonable searches and
seizures’ prohibits false arrest, false imprisonment, illegal search and seizure, and the use of
excessive force.” Roman v. City ofNewark, No. 16-1110, 2017 WL 436251, at *3 (D.N.J. Jan. 31,
2017) (quoting U.S. Const. amend. IV). To state a claim for false arrest, a plaintiff must allege
“(1) that there was an arrest; and (2) that the arrest was made without probable cause.” Watson v.
Doe, No. 04-962, 2005 WL 1116239, at *3 (D.N.J. May 10, 2005). “Probable cause exists where
the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a
reasonable person to believe an offense had been committed.” United States v. McGloiy, 968 F.2d
309, 342 (3d Cir. 1992). “[T]he test for an arrest without probable cause is an objective one, based
on ‘the facts available to the officers at the moment of arrest.” Janowski v. City ofI’L Wildwood,
No. 16-4464, 2017 WL 1821078, at *6 (D.N.J. May 5, 2017) (quoting Barna v. City of Perth
Amboy, 42 F.3d 809, 819 (3d Cir. 1994)).
Plaintiff states that “throughout the course of his life,” he “was arrested by the Defendants
and charged with crimes based on the color of his skin.” Compi. at 10. Plaintiff describes three
specific instances of arrest. The first arrest occurred on January 10, 2001. Plaintiff alleges that,
while he was walking home from the store, he was “stopped and frisked” by Defendants Gunter
and “his partner.” Id. Despite the officers not finding drugs, Plaintiff contends “Gunter walk[ed]
into a backyard and [came] back with some drugs he claimed [were] stashed back there.” Id. at

9

10-11. Plaintiff alleges Defendants arrested him and charged him with the possession of the drugs
that did not belong to him. Id. at 11.
The next arrest occurred on May 23, 2002, while Plaintiff was “in the process of leaving
[his] building.” Id. He alleges that he “ran into a group of cops who arrested [him] for an old
warrant.” Id. Plaintiff states that the “cops were in [his] building doing a random raid,” and that
he was arrested without the presence of drugs, money or buyers, and charged with possession with
the intent to distribute. Id.
Lastly, on November 29, 2006, Plaintiff alleges that he was in a friend’s car when they
were pulled over by the police. Id. According to Plaintiff, the officers did not have consent or a
warrant to search, but nonetheless searched the vehicle and Plaintiff, which resulted in an arrest
even though Plaintiff did

not

have any drugs on him. Id.

Taking Plaintiffs allegations as true, Defendants did not have probable cause to arrest
Plaintiff in 2001 or 2006, but did have probable cause to arrest Plaintiff pursuant to a warrant in
2002. In 2001 and 2006, respectively, Plaintiff alleges he did not have any drugs on his person
and that the narcotics for which he was charged were not his. Taking that as true, the officers did
not have probable cause to arrest Plaintiff at those times. Therefore Counts III and IX remain as
to the 2001 and 2006 arrests.10
The Fourth Amendment also protects against unreasonable searches. U.S. Const. amend.
IV.

Reasonableness under the Fourth Amendment “depends on all of the circumstances

10This decision in no way prevents Defendants from arguing that they did have probable cause for
the arrests on a motion to dismiss. Defendants may also raise any additional arguments, such as
statute of limitations, that apply to this claim. Finally, this Opinion does not prevent Defendants
from filing a motion to dismiss for failing to plausibly plead a claim. The Court is conducting a
screening function without prejudice to the rights of Defendants to defend the matter as they see
fit.
10

surrounding the search or seizure and the nature of the search or seizure itself

.“

Skinner v. Ry.

Labor Executives’ Ass ‘n, 489 U.S. 602, 618 (1988) (quoting United States v. Montoya de
Hernandez, 473 U.S. 531, 537 (1985)). “Thus, the permissibility ofa particular practice is judged
by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of

legitimate governmental interests.” Id. at 619 (quotation marks and internal citation omitted).
Here, Plaintiff alleges two unconstitutional searches: first, on January 10, 2001, when he
was “stopped and frisked” on his way home from the store, and second, in 2006, when the officers
searched his friend’s car and Plaintiff. Pursuant to the Fourth Amendment, “an officer may,
consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S.
119, 123 (2000). This investigatory stop is known as a “stop and frisk,” and is an exception to the
general rule that the Fourth Amendment requires a warrant based on probable cause. United States
v. Brown, 448 F.3d 239, 244 (3d Cir. 2006). Thus, a stop and frisk does not require probable cause,
but instead a “reasonable suspicion that criminal activity is afoot.” Illinois, 528 U.S. at 123.
As to Plaintiffs first alleged “search,” he does not provide any details except that the
officers performed an “unwarranted frisk that did not lead to the discovery of any contraband.”
Compl. at 10. Whether the stop and frisk was “unwarranted” is a legal conclusion, for which
Plaintiff provides no supporting factual allegations. Therefore Count III is dismissed as to the
2001 search.
Additionally, Fourth Amendment rights may not be vicariously asserted. See Alderman v.
United States, 394 U.S. 165, 174 (1969). Therefore, since Plaintiff asserts no ownership over the
vehicle in question, he has no Fourth Amendment rights as to the search of the vehicle. See U S.
ex rel. Mann v. Mazurkiewicz, 316 F. Supp. 1041, 1044 (E.D. Pa. 1970). As to the search of his

11

Plaintiff.
person, Plaintiff states that the officers did not have consent or a warrant to search
ion, for
However, those are only two exceptions to the warrant requirement. Another except
556 U.S. 332,
example, occurs when the search is conducted “incident to arrest.” Arizona v. Gant,
a lawful
t
33$ (2009) (“Among the exceptions to the warrant requirement is a search inciden to
e enough
arrest.”). Plaintiff states that he was both searched and arrested. Plaintiff does not provid
a lawful
t
detail or factual support for this Court to evaluate whether the search was inciden to
ff and the motor
arrest. Therefore, as pled, Count III is dismissed at to the 2006 searches of Plainti
vehicle.
First Amendment (Count V)
ff
Plaintiffs final Section 1983 claim is brought pursuant to the First Amendment. Plainti
] exculpatory
alleges that Defendants violated his First Amendment rights by “withhold[ing
ff the right to
evidence of their racially motivated practices from the state, depriv[ing] Plainti
present an adequate defense
and civil remedies

.

.

.

.

.

.

and “depriv[ing] Plaintiff his right to seek post-conviction relief

in violation of the right to access the courts.” Compl. at 20.

” Aiston v.
“It is well-established that there is a constitutional right of access to the courts.
s v. Smith, 430
Parker, No. 95-6158, 2007 WL 1349303, at *6 (D.N.J. May 2, 2007) (citing Bound
n as well as
U.S. 817, $21 (1977)). This right derives from the First Amendment’s right to petitio
s that “adequate,
the due process clauses of the F ifih and Fourteenth Amendments, and it require
challenge their
effective, and meaningful’ access must be provided [to] inmates who wish to
als, No. 08-1096,
criminal charge, conviction, or conditions of confinement.” Guido v. U& Marsh
at 822).
2008 WL 1902742, at *6 (D.N.J. Apr. 2$, 200$) (quoting Bounds, 430 U.S.

The

g a violation
touchstone of this right is “meaningful access to the courts.” Id. A plaintiff allegin
chance to pursue
of this right must show: “(1) he suffered an actual injury—that is, that he lost a

12

a nonfrivolous or arguable underlying claim; and (2) he has no other remedy that may be awarded
as recompense for the lost claim other than in the present denial-of-access suit.” Coulston v.
Superintendent Houtzdate SCI 651 F. App’ x 139, 142 (3d Cir. 2016) (internal quotation marks
omitted).
Here, Plaintiff fails to plead either of the elements required for this claim. He does not
demonstrate actual injury; in fact, he does not give any details as to how the supposed exculpatory
evidence would have aided in his defense. To the extent Plaintiff is asserting a violation of due
process, he fails to state so. He also does not allege that there is no alternate remedy than the
present claim. Therefore, Count V is dismissed.”
Section 1983

—

Monel Liability (Count VII)

Plaintiff also alleges constitutional claims against the Entity Defendants, pleading that their
failure to adequately train and supervise their subordinates constituted deliberate indifference and
directly and proximately caused the violations of plaintiffs rights described herein.” Compl. at
21.
A municipality cannot he liable under Section 1983 for the acts of its employees on the
basis of respondeat superior. Thomas v. Cumherlctnd County, 749 f.3d 217, 222 (3d Cit. 2014)
(citing Monelt, 436 U.S. at 690-9 1).

Rather, to hold a municipality liable, a plaintiff must

demonstrate that the violation of rights was caused by a municipal policy or custom. Id. To
sufficiently state a claim based on a municipal policy or custom, a plaintiff must identify a policy
or custom that “violates the Constitution or

.

.

.

while not unconstitutional itself. is the moving

force behind the constitutional tort of one of its employees.” Id. (quoting Co/burn

i’.

Upper Darbv

“ To the extent that the allegations in Count V forms the basis of Plaintiffs conspiracy claims
(Counts IV and VI), those Counts are also dismissed.

13

Twp., 946 f.2d 1017, 1027 (3d Cir. 1991)). Moreover, if a plaintiff relies on a policy or custom

that does not violate federal law on its face, “causation can only be established by ‘demonstrating
that the municipal action was taken with deliberate indifference as to its known or obvious
consequence.” Beig v. Cty. oJAlleghen’, 219 F.3d 261, 276 (3d Cir. 2000). The policy or custom
must be “fairly said to represent official policy.” B.S. v. Somerset Cty., 704 f.3d 250, 274 (3d Cir.
2013).
Plaintiff fails to plausibly plead Monet liability. Instead, Plaintiff states, in a conclusory
fashion, that Defendants demonstrated a “deliberate indifference” to “the welfare of racial
minorities, including Plaintiff.” Compl. at 17. Presumably, Plaintiff is referring to the alleged
racial profiling and “code of silence” by the supervisors. However, as stated, “racial profiling” is
a legal term of art, not a factual allegation. Mitchell, 2010 WI 2540466, at *5 Moreover, while
Plaintiff alleges a “code of silence,” he provides no plausible support for the fact that the racial
profiling was an official policy or custom in the police department or municipality. Additionally,
to the extent Plaintiffs claim is based on inadequate training, supervision, discipline, screening
and hiring, Plaintiff provides no facts as to how these “policies” violated the Constitution.
Moreover, he makes such allegations in conclusory fashion without plausible factual support.
Therefore, Count VII, as well as any other constitutional allegations brought against the
Entity Defendants, is dismissed.
Conspiracy (1985 and 1986) (Counts IV and VI)
Plaintiff also asserts claims alleging a civil conspiracy pursuant to 42 U.S.C. Sections 1985
and 1986. fAC ¶ 80-84. To sufficiently plead a Section 1985(3) claim, a plaintiff must establish:
(1) a conspiracy; (2) for the purpose of depriving a person or class
of persons equal protection under the law or equal privileges and
immunities under the law; (3) an act in furtherance of the

14

conspiracy; and (4) injury to a plaintiffs property or his person, or
deprivation of a right or privilege of a U.S. citizen.
McArdle v. Hufnagel, 5$$f. App’x 118, 120 (3d Cir. 2014). Section 1985(3) actions are limited

to conspiracies predicated on “racial, or perhaps otherwise class based, invidiously discriminatory
animus.” Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997). In addition, a claim for conspiracy
“must contain supportive factual allegations.” Ivan v. County ofMiddlesex, 595 F. Supp. 2d 425,
484 (D.N.J. 2009). Mere conclusory allegations that a conspiracy exists will not survive a motion
to dismiss. Garlanger v. Verbeke, 223 F. Supp. 2d 596, 605 (D.N.J. 2002). Finally, “[a] plaintiff
must establish a valid [Section] 1985 claim in order to state a claim under [Section] 1986.”
Carrington v. City ofJersey City, No. 06-53 67, 2008 WL 2061147, at *7 (D.N.J. May 12, 2008).

Here, to the extent that Plaintiff pleads a conspiracy claim, he fails to support it with any
factual allegations. The Complaint merely states in conclusory fashion that Defendants conspired
to “racially profile and discriminate against Plaintiff based on race.” Compl. at 19. Further,
Plaintiff alleges that Defendants “failed to prevent the conspiracy” in violation of Section 1986.
Id. at 20. Plaintiff does not address any ofthe elements of a Section 1985, much less with sufficient

factual plausibility. Therefore, Plaintiffs Section 1985 conspiracy claim is dismissed without
prejudice. Because Plaintiff fails to adequately plead a claim for a Section 1985 conspiracy, any
claim under Section 1986 necessarily fails. See Carrington, 2008 WL 2061147, at *7•
Assault (Count VIII)
“A person is subject to liability for the common law tort of assault if: (a) he acts intending
to cause a harmful or offensive contact with the person of the other or a third person, or an
imminent apprehension of such contact, and (b) the other is thereby put in such immediate
apprehension.” Leang v. Jersey City 3d. ofEduc., 198 N.J. 557, 591 (2009).

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Plaintiff fails to plead the elements of assault. Plaintiff states that Defendants Mikros,
Kelly and Gunter committed assault by “detaining and/or arresting Plaintiff based on race.”
Compi. at 21. However, he does not plead any facts showing that “harmful or offensive contact”
was used against him in order to make his arrest. Even if the arrest did involve “harmful or
offensive contact,” Plaintiff does not allege that he was put in “immediate apprehension,” as is
required to plead assault. Count VIII is dismissed.
Intentional Infliction of Emotional Distress (Count XI)
To establish a claim for intentional infliction of emotional distress, a plaintiff must plead
four elements: (1) 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 v. Raritan Twp., No. 14-3658, 2016 WL 7013465, at *26tD.N.J.
Nov. 30, 2016) (quoting Kounelis v, Sherrer, 529 F. Supp. 2d 503, 532 (D.N.J. 2008)).
Here, Plaintiff alleges that Defendants “purposely subj ect[ed] Plaintiff to severe emotional
distress.” Compi. at 21. This allegation is entirely conclusory, and fails to plead any of the
requisite elements for the tort of intentional infliction of emotional distress. Count XI is dismissed
without prejudice.
NegHence (Count XII)
Lastly, Plaintiff alleges that “[t]he actions of defendants City of Elizabeth, Union County,
Cosgrove, Romankow and Portino, in failing to adequately train and/or supervise their
subordinates constituted the tort of negligence under the law of New Jersey.” Compl. at 21.
In New Jersey, to sustain a claim of negligent training, “a plaintiff must show that (1) the
defendant owed a duty of care to the plaintiff to properly train its employees, (2) defendant

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breached that duty of care, (3) defendant’s breach was the proximate cause of plaintiffs injury,
and (4) defendant’s breach caused actual damages to plaintiff.” Panarello v. City of Vine/and, 160
F. Supp. 3d 734, 762 (D.N.J. 2016), on reconsideration in part, No. 12-4165, 2016 WL 3638108
(D.N.J. July 7, 2016). Separately, the “claim of negligent supervision requires showing that (1)
the employer must have known or had reason to know that the employee exhibited dangerous
characteristics; (2) there must be a reasonable foreseeability ofharm to others; and (3) the negligent
supervision must be the proximate cause of the alleged injury.” Id. at 769 (quoting Cordial v. Ati.
City, No. 11-1457, 2014 WL 1095584, at *11 (D.N.J. Mar. 19, 2014)).
Once again, Plaintiff merely make conclusory allegations. Plaintiff does not address the
elements of either negligent training or negligent supervision under New Jersey law. Therefore,
Count XII is dismissed without prejudice)2
Conclusion
Plaintiffs Complaint is dismissed without prejudice as to Counts I, II, III (as to the searches
and 2002 arrest only), IV, V, VI. VII, VIII, X, XI (as to the 2002 arrest only), and XII. The Court
also denies Plaintiffs request for injunctive relief Counts III and IX remain as to Plaintiffs 2001
and 2006 arrests. Plaintiff has thirty (30) days to file an amended complaintt3 that cures the

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When dismissing a case brought by apro se plaintiff, a court must decide whether the dismissal
will be with prejudice or without prejudice, which affords a plaintiff with leave to amend. Grayson
v. Mayview State Hosp., 293 F.3d 103, 110-11 (3d Cir. 2002). The district court may 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 258, 864 (3d Cir. 1984). At this point, the Court cannot conclude that any
of Plaintiffs claims are futile. Therefore, the Court dismisses each of Plaintiffs claims without
prejudice.
If Plaintiff does file an amended complaint which the Court finds sufficient, Defendants are not
precluded from filing a motion to dismiss pursuant to Rule 12(b)(6). The Court’s role at this stage
is to perform a screening function. The Court’s ruling does not prejudice Defendants from
litigating the matter as they see fit.
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deficiencies set forth herein. If Plaintiff does not submit an amended complaint curing these
deficiencies within thirty days, the dismissal of those counts will then be with prejudice. A
dismissal with prejudice means that Plaintiff will be precluded from filing the dismissed claims in
the future against Defendants concerning the allegations in the complaint. An appropriate form of
Order accompanies this Opinion.

Dated: September 7, 2017

ucr

JOHN MICHAEL VAUE, U.S.D.J.

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