POSYTON, III v. TOWNSHIP OF WESTFIELD et al

Filing 20

OPINION. Signed by Judge John Michael Vazquez on 10/16/2017. (JB, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RONALD H. POSYTON III,

Flainttff

Civil Action No. 17-5 139
OPINION

V.

KEVIN O’KEEFE, et al,

Defendants.

John Michael Vazguez, U.S.D.J.
Plaintiff Ronald Posyton (“Plaintiff’) filed an initial Complaint on July 14, 2017, D.E. 1,
and then filed an Amended Complaint (“FAC”) on August 21, 2017. D.E. 8. On September 29,
2017, the Court granted Plaintiff in forma pauperis status pursuant to 28 U.S.C.

§ 1915 but

dismissed Counts II, VI, VII, VIII, IX, X, XI, XII, XIII, XIV, XV, XVI of Plaintiffs FAC without
prejudice after screening the complaint pursuant to 2$ U.S.C.

§ 1915(e)(2)(B).’ D.E. 15-16. The

Court allowed Counts I, III, IV, V of the FAC to remain.2 D.E. 15-16. The Court, however, did

‘The dismissed Counts are as follows: II & VI (retaliation for exercising Plaintiffs rights under
the First Amendment), VII (failure to intervene in violation of Plaintiffs Fourteenth Amendment
rights), VIII & IX (unlawful entry onto Plaintiffs property and a subsequent illegal search in
violation of his Fourth Amendment rights), X (tarnished reputation in violation of N.J.
Constitution Art. I), XI (violation of Plaintiffs right to counsel under the Fourteenth
Amendment), XII (assault and battery), XIII (intrusion upon seclusion), XIV (trespassing), XV
(negligent hiring), and XVI (a claim against civilian Kenneth Hogan for assault and battery).
The Counts surviving the initial screening of the FAC are as follows: I & IV (illegal search and
seizure in violation of Plaintiffs Fourth Amendment rights) III (false imprisonment in violation

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not order the FAC to be served at that time, instead first permitting Plaintiff time to file an amended
complaint to address the deficiencies noted in the dismissed counts.
Plaintiff filed this Second Amended Complaint (“SAC”) on October 10, 2017. D.E. 18.
Because Plaintiff is still proceeding informa pauperis, the Court screens Plaintiffs SAC pursuant
to 28 U.S.C.

§ 1915(e)(2)(B). The Court now DISMISSES

Count V of the SAC with prejudice

because it fails to state a plausible claim for relief. Counts I, II, III, IV of Plaintiffs SAC allege
the same form of relief that the Court allowed to remain afier screening the FAC, specifically
illegal search and seizure, false imprisonment, and excessive force. These counts remain.3
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).

of Plaintiffs Fourteenth Amendment rights), and V (excessive force in violation of Plaintiffs
Fourth Amendment rights).
For the purposes of this screening pursuant to 28 U.S.C. § 1915(e)(2)(B) “the Court accepts as
true all well-pleaded facts in the complaint.” See Fowler i’. UPiVIC Shadyside, 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 I, II, III, and IV. While Plaintiff included
the Westfield Police Department Report (“Report”), which offers alternative facts concerning the
events of the night in question, as an attachment to his Second Amended Complaint, Plaintiff
denies the veracity of the Report. SAC ¶{ 68-72. At this screening stage, the Court accepts
Plaintiffs allegations of the Report’s falsity. The Court is not making a final detenuination as to
the accuracy of the statements in the Report; instead, the Court is merely accepting as true
Plaintiffs allegation that the Report is inaccurate solely for purposes of screening.
Further, the Court’s ruling 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).

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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.” Ash croft 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).
As stated above, after screening Plaintiffs FAC the Court dismissed Counts II. VI, VII,
VIII, IX, X, XI, XII, XIII, XIV, XV, XVI without prejudice. As to those counts, the Court gave
Plaintiff leave to file a second amended complaint within thirty days addressing the deficiencies
noted in the Court’s opinion if he so chose. D.E. 15-16. In his, SAC Plaintiff re-alleged the causes
of action that the Court allowed to remain and re-pled only one cause of action, Officers Martinez’s
and Johnson’s unlawful entry onto and search of his property in violation of the Fourth
Amendment, that the Court had dismissed without prejudice after screening the fAC.
In Plaintiffs FAC he alleged that Defendant Officers Steven Martinez and Ricardo
Johnson unlawfully entered onto and searched Plaintiffs property. Specifically, Plaintiff alleged
that the officers unlawfully walked on the property and that Officer Martinez then improperly rang
the doorbell. FAC ¶ 119. Plaintiff claimed the following: “Martinez rang the [Plaintiffs] doorbell,
and then [Plaintiffs] mother answered the door.” FAC

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¶ 92.

In screening that claim the Court

noted that “{wJhen law enforcement officers who are not armed with a warrant knock on a door,
they do no more than any private citizen might do. And whether the person who knocks on the
door and requests the opportunity to speak is a police officer or a private citizen, the occupant has
no obligation to open the door or to speak.” Kentucky v. King, 563 U.S. 452, 469—70 (2011). D.E.
15. The Court also noted that the Supreme Court has found that such actions do not threaten or
violate the Fourth Amendment without the police taking further unconstitutional action. Id.; D.E.
15. Thus, the Court dismissed Plaintiffs counts alleging an unlawful entry and search of his
property. D.E. 15-16.
In his SAC, Plaintiffs allegations of the officers’ unlawful entry and search of his property
in violation of his Fourth Amendment rights fares no better. Plaintiff re-alleges the same facts in
the SAC regarding Officers Martinez’s and Johnson’s conduct of walking onto his property. For
example, Plaintiff simply reasserts that “Martinez and Johnson entered onto the curtilage of [his]
home at approximately 11:00 p.m. without a warrant, implied license, consent, probable cause,
reasonable suspicion, exigent circumstances, justification, or due process of law” in violation of
his Fourth Amendment rights. SAC ¶ 87. Thus, Plaintiffs factual allegations, once again, do not
plausibly plead an unlawful entrance or illegal search of his property.
In light of the fact that this is Plaintiffs second time amending his complaint, and Plaintiff
merely re-alleges the same facts which the Court already found deficient, the Court finds that any
further amendment of the allegations concerning Officer Martinez’s and Johnson’s conduct of
entering onto Plaintiffs property would be futile. Therefore, Count V of Plaintiffs SAC is
DISMISSED WITH PREJUDICE. A dismissal with prejudice means that Plaintiff is precluded

from filing any future suit against Defendants concerning the allegations in Count V of the SAC.
As discussed in some depth in the Court’s first opinion screening Plaintiffs FAC, D.E. 15, the

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causes of action in Counts I, II, III and IV of Plaintiffs SAC have survived the Court’s screening.
Specifically, Counts I and II remain against Officers Kevin O’Keefe, Steven Martinez, Christopher
Forcenito, Ricardo Johnson, and Freeman. Counts III and IV remain against Officers Martinez and
forcenito.
An appropriate form of Order accompanies this Opinion.
Dated: October 16, 2017

X2 }v7

John ‘Michael VazqueJiS3DJ.

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