MESADIEU v. CITY OF ELIZABETH et al

Filing 8

OPINION. Signed by Judge John Michael Vazquez on 4/2/18. (cm, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GUILIO MESADIEU,

Plaintiff

Civil Action No. 17-3252
OPINION

v.
CITY OF ELIZABETH, et al,
Defendants.

John Michael Vazcuez, U.S.D.J.
Plaintiff Guilio Mesadieu (“Plaintiff’) filed an initial Complaint on May 5, 2017. D.E. 1.
On September 7, 2017, the Court granted Plaintiff informa pauperis status pursuant to 2$ U.S.C.

§

1915 but dismissed 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 without prejudice pursuant
to 2$ U.S.C.

§

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

3. The Court allowed Counts III and IX as to Plaintiffs 2001 and 2006 arrests to remain.1 Id.
Plaintiff filed his First Amended Complaint (“FAC”) on October 20, 2017.

D.E.

52

Because Plaintiff is still proceeding informa pauperis, the Court screens Plaintiffs FAC pursuant

The Counts that survived the initial screening of the Complaint were for false arrest and
unreasonable search and seizure (Count III) and false imprisonment (Count IX).
2

Plaintiff is proceedingpro se, and, consequently, the Court construes Plaintiffs pleadings
liberally and holds them to a less stringent standard than papers filed by attorneys. Haines v.
Kerner, 404 U.S. 519, 520 (1972). As a result, the Court will treat D.E. 5 as Plaintiffs Amended
Complaint.

to 28 U.S.C.

§ 1915(e)(2)(B). The Court now DISMISSES Counts I, II, III (as to alleged searches

and the 2002 arrest only), IV, V, VI, VII, X, XI (as to the 2002 arrest only), and XII of the
Complaint with prejudice for failure to state plausible claims for relief.
In the FAC, Plaintiff continues to seek the same relief from the allegations concerning the
2001 and 2006 arrests that the Court deemed plausibly pled in its prior screening decision. Opinion
at 8-9; D.E. 2. The FAC also alleges new facts concerning a 2003 arrest and multiple encounters
with the police that did not lead to arrest. Finally, the FAC alleges additional facts regarding Count
VIII (assault) during the 2003 arrest. FAC at

¶ 60-6l. These additional allegations plausibly

plead the elements of the common law tort of assault. Therefore, at this stage, Counts III and IX
as to Plaintiffs 2001, 2003, and 2006 arrest, and Count VIII as to the 2003 arrest remain.4
I.

FACTS AND PROCEDURAL HISTORY
For the purposes of the pending motion, the Court need not retrace this case’s full factual

and procedural history. The Court’s September 7, 2017 Opinion screening Plaintiffs Complaint,
D.E. 2, includes a detailed recounting of the background of this matter. To the extent relevant to
this motion, the Court incorporates the factual and procedural history into this Opinion.
Plaintiff, an African-American man, alleges that police officers from the Elizabeth City
Police Department have targeted him on multiple occasions due to his race. Defendants are the

The FAC’s pagination skips page numbers. Therefore, the Court will cite to the PageID
number listed on each page of the FAC.
for the purposes of this screening pursuant to 28 U.S.C. § 1915(e)(2)(3) “the Court accepts as
true all well-pleaded facts in the complaint.” See fov’1er v. (jTi’vIC Shadside, 578 F.3d 203, 210
(3d Cir. 2009). Thus, taking the alleged facts in the light most favorable to Plaintiff, Plaintiff has
sufficiently pled plausible causes of action in Counts III and IX as to Plaintiffs 2001, 2003, and
2006 arrests and Count VIII as to Plaintiffs 2003 arrest. However, the Court’s ruling does not
prevent Defendants from litigating this matter as they see fit, including filing a motion to dismiss
pursuant to Rule 12(b)(6) if they deem it appropriate.

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City of Elizabeth and individual Elizabeth police officers. In addition to the 2001, 2002, and 2006
arrests described in the Complaint, the FAC alleges details of a 2003 arrest. On July 9, 2003,
Plaintiff claims he was biking away from his girlfriend’s residence when a Toyota with tinted
windows hit him. FAC at 60. Plaintiff fell to the ground and began to run. Id. Plaintiff realized
that his pursuers were Elizabeth police officers and stopped running. Id. An officer immediately
struck Plaintiff in the face with a service weapon, causing Plaintiff to fall to the ground. Id. The
other officers then allegedly began stomping and punching Plaintiff, before handcuffing and
spraying him with mace. Id. Despite Plaintiffs numerous alleged injuries, the officers brought
Plaintiff to the Elizabeth Police Department precinct. Id. at 61. There, Plaintiff was charged with
possession of a controlled dangerous substance (“CDS”), intent to distribute a CDS, obstructing
the administration of law, and resisting arrest. Id. A jury found Plaintiff not guilty of possession
or intent to distribute, but guilty of the obstruction and resisting arrest charges. Id.
The FAC also alleges several new “documented encounters” between Plaintiff and
Defendants from the time of the 2003 arrest to the time of the 2006 arrest. The FAC describes
these encounters as follows: August 13, 2005 (alleged violation of resisting order, dismissed);
August 20, 2005 (alleged loitering, $183 fine); August 30, 2005 (alleged restraining order,
dismissed); and September 17, 2006 (alleged wandering/prowling to obtain/sell CDs, dismissed).
Id.

Plaintiff further claims that these encounters, and others described in the original Complaint

and FAC, made him become depressed and lose interest in school and other endeavors. Id. at 64.
As stated above, on September 7, 2017, after screening Plaintiffs Complaint, the Court
dismissed 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 without prejudice. As to those counts,
the Court gave Plaintiff leave to file an Amended Complaint within thirty days addressing the

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deficiencies noted in the Court’s opinion if he so chose.5 D.E. 2, 3. On October 20, 2017, Plaintiff
filed the FAC. D.E. 5.
The causes of action and corresponding counts in the FAC are somewhat unclear. The
Court construes the Amended Complaint to allege the following causes of action: racial profiling
and discrimination in violation of the Fourteenth Amendment (Count I); racial discrimination in
violation of the Equal Protection Clause (Count II); illegal search and seizure in violation of the
Fourth and Fourteenth Amendments (Counts III, IV, and IX); denial of meaningful access to the
courts in violation of the First Amendment (Count V); a civil rights conspiracy in violation of 42
U.S.C.

§ 1985(3) and neglecting to prevent a civil rights conspiracy in violation of 42 U.S.C. §

1986 (Counts V, VI); failure to adequately train and/or supervise (Count VII); “arresting and/or
detaining Plaintiff based on race” in violation of “the tort of assault under the law of New Jersey”
(Count VIII); wrongful imprisomnent (IX); racial discrimination pursuant to New Jersey law
(Count X); intentional infliction of emotional distress (Count XI); and negligence for failure to
adequately train and/or supervise employees (Count XII). Based on these alleged violations,
Plaintiff continues to seek 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 frill extent of their racial profiling
practices to the Plaintiff and public at large.” FAC at 57.

On October 17, 2017, the Court gave Plaintiff an additional thirty days to file an Amended
Complaint because the record was not clear as to whether Plaintiff, who is incarcerated, had
received the Court’s September 7, 2017 Opinion and Order. D.E. 4.
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II.

LEGAL STANDARD

When allowing a plaintiff to proceed in forma 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)(B). ‘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.” Bell 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 Plaintiffs Amended Complaint
liberally and holds it to a less stringent standard than papers 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).
III.

LEGAL 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

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§ 1983 in New Jersey are subject to two-year

personal injury statute of limitations.”); FAC at 58-64 (discussing allegations that occurred from
2001 to 2011). Although it has real concerns over the statute of limitations at issue here, the Court
will not address the statute of limitations or any other potential, obvious defenses at this time.
Defendants may raise them at the motion to dismiss stage if they so choose.
A. Section 1983 Claims

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).6
1. Racial Profiling (Count I)

In the original Complaint, Plaintiff alleged that Elizabeth police officers racially profiled
him in violation of the Fourteenth Amendment. Plaintiffs only factual allegation in support of
this claim was that Defendants Mikros, Kelly, and Gunter “racially profil[ed] Plaintiff, a racial
minority,” which “constituted selective enforcement of the law in violation of the Fourteenth
[Amendment].” Cornpl. at 19.

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When a state official’s actions give rise to a Section 1983 claim, qualified immunity can shield
the officer from liability. Wright v. City ofPhiladelphia, 409 F.3d 595, 599 (3d Cir. 2005).
“The defendant has the burden of establishing qualified immunity.” Ihienfeld v. Darbv Borough
Police Dep ‘t, No. 16-01990, 2017 WL 132169, at *6 (E.D.Pa. Jan. 13, 2017). The United State
Supreme Court has found that the issue of qualified immunity turns on two questions: (1)
whether plaintiffs alleged facts make out a violation of a constitutional right; and (2) if so,
whether the right at issue was clearly established at the time of defendant’s alleged violation.
Pearson v. Callahan, 555 U.S. 223, 232 (2009). Because qualified immunity is an affirmative
defense, the Court will not address whether Defendants are entitled to qualified immunity at this
stage, but nothing in this Opinion precludes Defendants from raising the issue in a later motion.

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In screening the claim, the Court noted that “[a] claim for racial profiling is typically
advanced under two theories: a claim for selective enforcement

.

.

.

or a claim for an equal

protection violation.” Opinion at 7; D.E. 2 (citing Mitchell v. Twp. Of Femberton, No. 09-8 10,
2010 WL 2540466, at *5 (D.N.J. June 17, 2010)). Further, the Court stated that under either of
the two 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. Id. Therefore, the Court found that
Plaintiffs general allegation of “racial profiling” in the Complaint was insufficient to plausibly
plead a Fourteenth Amendment violation.
The FAC clarifies that Plaintiff seeks to bring his claim of racial profiling based on a
selective enforcement theory. FAC at 70. The FAC alleges that Officer Mikros made several
racist remarks to Plaintiff while arresting him. First, while effectuating the 2006 arrest, the FAC
alleges that Officer Mikros slammed Plaintiff onto a car and “screamed in [his] ear, ‘stay down
stinking Haitian.” FAC at 63. Second, during another arrest occurring in 2011, Officer Mikros
allegedly asked Plaintiff, “[w]hy won’t you just move to another state, if you’re not going to
leave this country[?]” Id. at 64. The Court notes that neither comment, even if true, necessarily
indicates an African-American animus. One comment concerned Plaintiffs country of origin
(Haiti) and the other a perceived immigration status. Nevertheless, for purposes of screening and
because Plaintiff is proceeding pro se, the Court interprets the comments to be based on
Plaintiffs race.
“To establish a selective-enforcement claim, a plaintiff must demonstrate (1) that he was
treated differently from other similarly situated individuals, and (2) that this selective treatment
was based on an ‘unjustifiable standard, such as race, or religion, or some other arbitrary factor.
or to prevent the exercise of a fundamental right.” Dique v. New Jersey State Police, 603 F.3d

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181, 184 fn. 5 (3d Cir. 2010) (internal quotation marks omitted) (quoting Hill v. Cit’ ofScranton,
411 F.3d 118, 125 (3d Cir. 2005)).
Even taking the additional allegations as true, the FAC fails to plausibly plead a claim of
selective-enforcement. Plaintiff has not sufficiently alleged that he was treated differently from
similarly situated individuals. Plaintiff attempts to make this showing by attaching, and citing to,
a report published by the American Civil Liberties Union (the “Report”): “Selective Policing:
Racially Disparate Enforcement of Low-Level Offenses in New Jersey.” FAC at 67. The Report
suggests that on average African Americans are 3.6 times more likely than Caucasians to be
arrested by the Elizabeth Police Department for trespass, marijuana possession, disorderly
conduct, and loitering. P1. Opp., Ex. 3 at 38; D.E. 5-3. While Plaintiff alleges that on August 20,
2005, Elizabeth City police officers fined him for loitering, all of Plaintiffs other alleged arrests
stem from charges that were not analyzed in the Report, for example possession and intent to
distribute. Thus, the Report does not appear relevant to Plaintiffs particular arrests save one.
Therefore, the Report’s data is insufficient to show Plaintiffs collective arrests stemmed from
the officers treating him differently from other similarly situated defendants. The Court
dismisses Count I with prejudice.
2. Racial Discrimination (Count II)

The FAC also re-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. FAC at 22. In screening the Complaint, the Court
noted that Plaintiff only made a conclusory allegation that he was treated differently because of
his race. Opinion at 8; D.E. 2.

8

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 establish an equal protection claim, plaintiff must show that the defendants’ actions: “(1)
had a discriminatory effect and (2) were motivated by a discriminatory purpose.” Bradley v.
United States, 299 F.3d 197, 205 (3d Cir. 2002). “To prove discriminatory effect, plaintiff must
show that [he] is a member of a protected class and that [he] was treated differently from
similarly situated individuals in an unprotected class.” Id. To prove discriminatory purpose, a
plaintiff must show that “the decisionmaker. selected or reaffirmed a particular course of action
.

.

at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable
group.” Lagttda v. City ofRahyway, 2016 WL 1029789 at *$..9 (D. N.J. 2016) (citing Fers.
Adm ‘r ofMassachitsetts v. Feeney, 442 U.S. 256, 279 (1979)) (internal citations omitted).
Here, the FAC fails to plausibly plead a claim of racial profiling. The FAC does not allege
facts to make out the first prong of discriminatory effect. For the same reasons discussed above,
the FAC fails to establish that Plaintiff was treated differently from similarly situated individuals
in an unprotected class. Here, too, the facts that Plaintiff is African-American and was arrested on
multiple occasions by Elizabeth City police officers are insufficient, standing alone, to show
discriminatory effect. Plaintiff attempts to bolster these facts with the Report’s statistics, but,
again, the Report addresses specific low-level offenses that differ from the vast majority of
offenses for which Plaintiff was arrested. Count II is dismissed with prejudice.

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B. fourth Amendment (Counts III and IX)7

In addition to the 2001 and 2006 arrests discussed in the original Complaint, Plaintiff
alleges that his 2003 arrest was “based on race” and that Defendants had no probable cause to
arrest him. FAC at 70.
“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.
McGtoiy, 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
e. City ofN Witdwood, No. 16-4464, 2017 WL 1821078, at *6 (D.N.J. May 5, 2017) (quoting
Barna v. City ofPerth Amboy, 42 F.3d 809, 819 (3d Cir. 1994)).
Taking Plaintiffs allegations as true, Defendants did not have probable cause to arrest
Plaintiff in 2003. In 2003, Plaintiff alleges that he did not have any drugs on his person and that

As it did in its screening Opinion, the Court construes Count IX for “wrongful imprisonment” to
be a claim for false imprisonment under New Jersey law. “False arrest and false imprisonment
overlap; the former is a species of the latter.” Wallace v. Kato, 549 U.S. 384 (2007); see also
Newman v. Barrett Twp., 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.
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he was later acquitted of the possession and intent to distribute charges. Thus, Plaintiff plausibly
pleads a lack of probable cause. Therefore Counts III and IX remain as to the 2003 arrest.8
C. Assault

In the Complaint, Plaintiff alleged a common law tort of assault claim against City of
Elizabeth police officers. Specifically, Plaintiff alleged that Defendants Mikros, Kelly, and Gunter
committed assault by “detaining and/or arresting Plaintiff based on race.” Compi. at 21. In
screening the assault claim, the Court noted that “[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.” Opinion at 15, D.E. 2 (citing Leang v. Jersey City
Bd. ofEthic., 19$ N.J. 557, 591 (2009)). The Court found that the claim was not plausibly pled.
The FAC contains new factual allegations to support a claim of assault for Plaintiffs 2003
arrest. Plaintiff claims that, on July 9, 2003, Defendant Officers hit Plaintiff with their car while
he was riding his bicycle home from his girlfriend’s residence. FAC at 60. Plaintiff claims he fell
to the ground, and immediately began running out of fear that the assailants were “coming to kill
or cause more harm to him.” Id. After realizing that the assailants were police officers, Plaintiff
stopped

running,

and “before [he could] get a word out of his rnouth[,]” the officers struck him

with a service weapon, causing him to fall to the ground. Id. The officers allegedly continued
assaulting Plaintiff while he was on the ground before handcuffing him. Id. Plaintiff claims that,

8

To be clear, the Court is not finding that Defendants did in fact lack probable cause. Instead, the
Court is merely ruling that Plaintiff has sufficiently pled a lack of probable cause. Defendants may
raise any arguments, such as statute of limitations, if they so choose. The Opinion also 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.
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after he was handcuffed, the officers proceeded to mace him. Id. Plaintiff alleges that the incident
left him with “multiple open wounds on his legs, knees, arms, head. .bruised ribs and [a bruised]
.

back.” FAC at 61. These new allegations, accepted as true at this stage, show harmful conduct
and immediate apprehension. Plaintiff alleges that he feared for his life, and his fleeing reflects
the fear. Further, being struck repeatedly with an object that left multiple wounds and bruises
clearly meets the definition of han-nful contact. Therefore, Count VIII remains as to Plaintiffs
2003 arrest.
B. Intentional Infliction of Emotional Distress

Finally, in the Complaint, Plaintiff alleged a claim of intentional infliction of emotional
distress (“TED”) against the Elizabeth City police officers. The Complaint alleged only that
Defendants “purposely subject[ed] Plaintiff to severe emotional distress.” Compl. at 21. In its
screening Opinion, the Court noted that to establish an lED cause of action a plaintiff must plead
four elements: (1) defendants acted intentionally or recklessly; (2) defendants’ 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. Opinion at 16, D.E. 2 (citing Shuman v. Raritan Twp., No. 14-3658, 2016
WL 7-13465, at *26 (D.N.J. Nov. 30, 2016) (quoting Kounelis v. Sherrer, 529 F. Supp. 2d 503,
532 (D.N.J. 2008)). Because Plaintiffs allegations were entirely conclusory and did not plead any
of the requisite elements for the tort of lED, the Court dismissed the claim without prejudice.
The FAC similarly fails to satisfy the requisite elements for an TED claim. Plaintiff now
alleges that, after being released from prison, Officer Mikros and the other Defendant Officers
continued to harass him by waiting around his home to “unlawfully search and arrest Plaintiff.”
FAC at 64. Plaintiff claims that this constant harassment caused him to “become even more

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depressed.” Id. He alleges that Defendants’ conduct caused him to lose interest in school, “his
life endeavors,” and that he “was constantly living in fear of Defendants.” Id. While Plaintiffs
additional factual allegations come closer to alleging an lED claim, they are insufficient to
plausibly allege either the second or fourth elements of an TED claim. The FAC’s allegations
concerning arrests that appear to have, on multiple occasions, led to convictions and confinement,
do not show that the Defendant officers’ “conduct was so outrageous to go beyond all bounds of
decency and be utterly intolerable in a civilized community.” Further, while Plaintiff alleges that
he grew depressed, these allegations do not appear so severe that no reasonable person could be
expected to endure it. Count XI is dismissed with prejudice.
E. Remaining Counts

The FAC does not offer new factual allegations warranting a second analysis towards the
remaining counts. For example, in the FAC Plaintiff re-alleges that Defendants illegally searched
him in violation of his Fourth Amendment rights during his 2006 arrest. The FAC only adds one
additional allegation to strengthen this argument. It alleges that Officer Mikros “violently
slarnm[ed] Plaintiff’ onto the tnmk of Plaintiffs friend’s car and screamed into his ear “stay down
stinking Haitian.” FAC at 63. While such behavior, if true, is abhorrent, it does not change the
Court’s original analysis that Plaintiffs claim is not plausibly pled.
As the Court explained in its first screening Opinion, 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 rd. Mann v. Mazurkiewicz, 316 F. Supp. 1041,
1044 (E.D.Pa. 1970). As to the search of his person, the FAC still does not provide enough detail
or factual support for this Court to evaluate whether the search was incident to a lawful arrest.

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for a second example, the FAC re-alleges the same facts regarding the “withholding of
exculpatory evidence” that Plaintiff claimed in his Complaint. Plaintiff, again, asserts that “[t]he
withholding of exculpatory evidence by the Defendants from the public. .prevent[ed] Plaintiff
.

from mounting a substantial legal defense and denied Plaintiffs right of access to the court.” FAC
at 71. These statements are merely conclusory statements, and once again, they do not plausibly
plead a violation of Plaintiffs first Amendment rights.
When dismissing a case brought by a pro 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 $58, 864 (3d Cir. 1984). At this point, the Court finds that further
amendment of the dismissed claims would be futile. In its prior Opinion, the Court explained the
deficiencies in Plaintiffs claims, permitted Plaintiff to amend his Complaint to address the
deficiencies, and then extended Plaintiffs time to file the amended pleading. The FAC, does not
sufficiently address the noted shortcomings, so the Court is dismissing the implausibly pled claims
with prejudice. A dismissal with prejudice means that Plaintiff will be precluded from filing any
future suit against Defendant concerning the allegations in the complaint.

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IV.

CONCLUSION
Plaintiffs Amended Complaint, therefore, is DISMISSED with prejudice as to Counts I,

II, III (as to alleged searches and the 2002 arrest only), IV, V, VI, VII, X, XI (as to the 2002 arrest
only), and XII. Counts III and IX remain as to Plaintiffs 2001, 2003, and 2006 arrests. Count VIII
remains as to Plaintiffs 2003 arrest. An appropriate Order accompanies this Opinion.
Dated: April 2, 2018
/
John ichaelrVazquejIi.D .J.

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