Atuegwu v. Port Authority Police Department
Filing
7
OPINION and ORDER: The Application to Proceed In Forma Pauperis is GRANTED; the Clerk of the Court is directed to file the Complaint; Plaintiff's Complaint is DISMISSED in its entirety; Plaintiff's claims that can be construed as an appeal of the municipal court judgment are DISMISSED with prejudice and the remainder of Plaintiffs claims are DISMISSED without prejudice; Plaintiff is afforded (30) days to file an amended complaint that cures the deficiencies as set forth above. Failure to file an amended complaint within this time will result in the entire case being dismissed with prejudice. Signed by Judge John Michael Vazquez on 11/30/2018. (n/m)(gl, ) (Main Document 7 replaced on 11/30/2018) (gl, ).
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHINWE N. ATUEGWU,
Plaintiff
Civil Action No. 18-9230
OPINION & ORDER
V.
PORT AUTHORITY POLICE DEPARTMENT
NEWARK INTERNATIONAL AIRPORT NEW
JERSEY 07114,
Defendant.
John Michael Vazjuez, U.S.D.J.
Plaintiff Chinwe N. Atuegwu seeks to bring this action in forma paliperis pursuant to 28
U.S.C.
§
1915. D.E. 1. For the reasons discussed below, the Court GRANTS her application to
proceed informapauperis but DISMISSES the Complaint pursuant to 28 U.S.C.
§
1915(e)(2)(B).
Under Section 1915, this 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., $86 F.2d 598, 601 (3d Cir. 1989). Plaintiff sufficiently establishes her inability to
pay, and the Court grants her application to proceed informa pauperis without prepayment of fees
and costs.
When allowing a plaintiff to proceed in forma pauperis the Court must review the
complaint and dismiss the action if it determines that the action is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks monetary relief against a defendant who
is immune.
28 U.S.C.
§ 1915(e)(2)(B).
When considering dismissal under Section
1915(e)(2)(B)(ii) for failure to state a claim on which relief can be granted, the Court must apply
the same standard of review as that for dismissing a complaint under Federal Rule of Civil
Procedure 12(b)(6). Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012).
To state a claim that survives a Rule 1 2(b)(6) motion to dismiss, a complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Belt All. Corp.
i’.
Twomblv,
550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 67$ (2009). Although the plausibility standard “does
not impose a probability requirement, it does require a pleading to show more than a sheer
possibility that a defendant has acted unlawfully.” Connellv v. Lane Const. Corp., $09 F.3d 780,
786 (3d Cir. 2016) (internal quotation marks and citations omitted). As a result, a plaintiff must
“allege sufficient facts to raise a reasonable expectation that discovery will uncover proof of her
claims.” Id. at 789. In other words, although a plaintiff need not plead detailed factual allegations,
“a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Belt
At!. Corp., 550 U.S. at 555 (internal quotations omitted).
Because Plaintiff is proceeding pro se, the Court construes the 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. however, need not “credit apro se plaintiffs ‘bald assertions’ or ‘legal
conclusions.” Grohs v. Yatauro, 984 F. Supp. 2d 273, 282 (D.N.J. 2013) (quoting Morse u. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).
Plaintiffs Complaint states that she is asserting federal constitutional claims for false
arrest, assault, defamation, and theft. Cornpl. at 2. Sections of Plaintiffs pleading, however, are
entitled “Motion for Leave to Appeal.” Plaintiff states that she seeks to appeal a guilty judgment
from the municipal court in Elizabeth, New Jersey and includes municipal court filings from April
25, 2012. See Id. at 7-9. The April 25, 2018 municipal court judgment addressed two separate
incidents when Plaintiff was arrested at Newark Liberty International Airport. Plaintiff was first
arrested on October 3, 2017 and charged with disorderly conduct, and was arrested again on
December 13, 2017, and charged with disorderly conduct and resisting arrest. The October 3
incident resulted in a finding of guilty and the December 13 charges were dismissed. Id. at 8-9.
Plaintiff maintains that she was not guilty and that the municipal court judge found her guilty to
cover up the improper conduct of the arresting police officer. Id. at 7. It appears that Plaintiff is
seeking to overturn her conviction through a Section 2254 habeas corpus claim. Such a claim
does not appear to apply here given the fact that, among other things, Plaintiff is not in custody.
See Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir. 2003) (stating that for a federal court to have
jurisdiction over a Section 2254 claim “a petitioner must be in custody under the conviction he is
attacking at the time the habeas petition is filed”).
Plaintiffs Complaint also appears to assert claims with respect to additional incidents that
occurred on May 3. 2017 and July 10, 2017. On May 3, Plaintiff alleges that after she paid a bus
fare, the bus driver told her that she needed to get off and wait for another bus. Port Authority
Police Officers were summoned, asked Plaintiff to get off the bus, and requested identification.
Plaintiff provided the police officers with her passport but refused to get off the bus. Plaintiff was
arrested, “detained for some time,” and eventually released. Plaintiff alleges, however, that her
passport was never returned. Cornpl. at 10.
3
Next, Plaintiff alleges that on July 10 she was sitting in Terminal B at Newark Liberty
International Airport. Plaintiff states that after Port Authority Police Officer Small told her to go
downstairs, Plaintiff stood up and walked outside. Plaintiff alleges that Officer Small and three
other officers followed her outside and were disturbing her. Plaintiff asserts that she proceeded to
call 911 and while she was still on the phone, an ambulance pulled up. Plaintiff alleges that one
of the officers pushed her into the ambulance and that she was taken to the psychiatric ward at
Beth Israel hospital. During the ambulance ride, Plaintiff states that Officer Small took her phone,
hung up on her conversation with the 911 dispatcher, and started to touch her breast. Finally,
Plaintiff alleges that once at Beth Israel hospital, she was “diagnose[d] with false diagnoses.” Id.
at 11.
Plaintiff appears to assert claims against the Port Authority’ pursuant to 42 U.S.C.
§ 1983,
which provides individuals with a cause of action for certain violations of constitutional rights. 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
telTitorial law.” Burtv. C’FG Health Svs., No. 15-2279, 2015 WL 1646849, at *2 (D.N.J. Apr. 14,
2015). A local governmental entity like the Port Authority is considered a “person” within the
meaning of Section 1983. See Peters v. Del. River PortAuth. ofPa. &N.i, 16 F.3d 1346, 1352
Plaintiff brings suit against the Port Authority Police Department of Newark International
Airport. The Port Authority Police Department is not a proper party for a Section 1983 claim.
See, e.g., Godley v. Nev’ark Police Dep’t, No. 05-806, 2007 WL 269815, at *3 (D.N.J. Jan. 26,
2007) (dismissing Section 1983 and tort claims against the Newark Police Department because it
is “merely an administrative arm of the local municipality” and not an entity that was subject to
suit) (quoting Padilla v. Township ofCherry Hill, 110 F. App’x 272, 278 (3d Cir. 2004)). Because
the Court must construe Plaintiffs complaint liberally, the Court will consider Plaintiff to be
bringing claims against the Port Authority of New York and New Jersey (the “Poil Authority”).
The Court also notes that individual Port Authority Police Officers are mentioned in passing
throughout the Complaint but that Plaintiff does not appear to assert claims against these officers.
4
(3d Cir. 1994). A local governmental entity, however, cannot be held liable under a theory of
respondeatsttperior. Monellv. Dept. ofSocial Servs., 436 U.S. 658, 691 (197$). Instead, to hold
such a defendant liable, a plaintiff must demonstrate that the violation of rights was caused by a
municipal policy or custom. Id.
To 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 toil of one of its employees.” Id. (quoting Colburn v. Upper Dctrbv
Township, 946 F.2d 1017, 1027 (3d Cir. 1991)). In other words, a plaintiff must show that the
local governmental entity affirmatively proclaimed a policy or acquiesced in a widespread custom
that caused the constitutional violation. Watson v.Abington Township. 478 F.3d 144. 155-56 (3d
Cir. 2007). A plaintiff may establish a custom “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. (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)).
In addition, “a custom requires ‘knowledge and acquiescence’ by the decisionmaker.” Hctshem v.
Htuitcrdon County, No. 15-8585. 2016 WL 5539590. at *22 (D.N.J. Sept. 29, 2016) (quoting Beck
1’.
Citi’ of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)).
Here, Plaintiff does not appear to allege that the Port Authority had an official policy that
was purportedly unconstitutional. Accordingly, Plaintiffs Complaint is best construed as stating
a claim based on Port Authority police officers’ custom of makmg false arrests or using excessive
force.
But even viewing the Complaint liberally, Plaintiff fails to sufficiently state a claim.
Plaintiff pleads thcts regarding four separate incidents, but these incidents are not enough to
establish the existence of an entity-wide custom that was so well-settled and permanent that it
constituted law. The four incidents are factually distinct and involve different officers. See, e.g.,
5
Gctymon v. Esposito. No. 11-4170, 2012 WL 1068750, at *7 (.D.N.J. Mar. 29, 2012) (dismissing
Monet! claim because complaint where there was “no basis to infer that excessive force was used
on anyone except the Decedent”). Moreover, Plaintiff does not suggest that any decisionmaker
with the Port Authority was aware of such any custom of improper conduct by Port Authority
police officers. See Hcishem, 2016 WL 5539590, at *23. Accordingly, Plaintiffs claims against
the Port Authority are dismissed.
When dismissing a case brought by a pro se plaintiff, a court must decide whether the
dismissal will be with prejudice or without prejudice, the latter of 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 858, 864 (3d Cir. 1984). The Court lacks
jurisdiction over Plaintiffs Complaint to the extent that Plaintiff is asking the Court to review the
municipal court judgment. Accordingly, these claims are dismissed with prejudice because any
amendment would be futile. But at this point, the Court cannot conclude that Plaintiffs remaining
claims are futile. Therefore, the Court provides Plaintiff thirty (30) days to file an amended
complaint that cures the deficiencies set forth herein. If Plaintiff is proceeding pursuant to a legal
theory other than those discussed herein, she must set forth the basis for her claim and provide
plausible factual allegations to support her claim.
If Plaintiff does not submit an amended
complaint curing these deficiencies within thirty days, the dismissal will then be with prejudice.
A dismissal with prejudice means that Plaintiff will be precluded from filing any future suit against
any present Defendant, concerning the allegations in the Complaint.
Accordingly, and for good cause shown,
6
IT IS on this 30th day of November, 201$,
ORDERED that pursuant to 2$ U.S.C.
§ 1915(a), Plaintiff Chinwe N. Atuegwu’s
application to proceed informapauperis is GRANTED; and it is further
ORDERED that the Clerk of the Court is directed to file the Complaint without
prepayment of the filing fee; and it is further
ORDERED that Plaintiffs Complaint is dismissed in its entirety; and it is further
ORDERED that Plaintiffs claims that can be construed as an appeal of the municipal
court judgment are dismissed with prejudice and the remainder of Plaintiffs claims are dismissed
without prejudice; and it is further
ORDERED that Plaintiff is afforded thirty (30) days to file an amended complaint that
cures the deficiencies as set forth above, failure to file an amended complaint within this time
will result in the entire case being dismissed with prejudice; and it is further
ORDERED that the Clerk of the Court is directed to mail a copy of this Opinion and Order
to Plaintiff by certified mail return receipt.
John Michael Vazquez,
7
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