CASCIANO v. CITY OF PATERSON et al

Filing 147

OPINION & ORDER granting 128 Motion to Dismiss counts one, two, seven, eight and nine of Plaintiff's Third Amended Complaint. Signed by Judge Claire C. Cecchi on 8/30/2024. (lag, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 19-9475

MARIE
CASCIANO,
General
Administratrix and Administratrix Ad
Prosequendum of the ESTATE OF
ANDREW CASCIANO, and MARIE
CASCIANO, individually,

OPINION & ORDER

Plaintiff,
v.
CITY OF PATERSON, et al.,
Defendants.
CECCHI, District Judge.
I.

INTRODUCTION
This matter comes before the Court on the motion to dismiss counts one, two, seven,

eight and nine of plaintiff Marie Casciano’s (“Plaintiff”) third amended complaint (ECF No. 118,
“TAC” or “Third Amended Complaint”) filed by defendants City of Paterson, Chief of Police
Troy Oswald and Police Director Jerry Speziale (collectively, the “City Defendants”) (ECF No.
128, “Mot.”). Plaintiff opposed Defendants’ motion (ECF No. 136, “Opp.”) and Defendants
replied in support (ECF No. 137, “Reply”). The Court decides this matter without oral argument
pursuant to Federal Rule of Civil Procedure 78(b). For the reasons set forth below, Defendants’
motion is GRANTED.
II.

BACKGROUND
A. Factual History 1

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For the purposes of this motion to dismiss, the Court accepts the factual allegations in the TAC
as true and draws all inferences in the light most favorable to the Plaintiff. See Phillips v. Cty. of
Allegheny, 515 F.3d 224, 228 (3d Cir. 2008).
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On March 5, 2018, Andrew Casciano called 911 after attempting suicide and was
transported to St. Joseph’s hospital. TAC ¶¶ 19, 20. Defendants Ruben McAusland and Roger
Then—at the time Paterson Police Department officers—arrived at St. Joseph’s in response. Id.
¶ 21. While Casciano was in the hospital waiting area, McAusland punched him in the face and
Then pushed him to the ground. Id. ¶¶ 22-23. After Casciano was transported to a patient room,
McAusland struck him in the face twice and said “I ain’t [expletive] playing with you.” Id. ¶ 24
(alteration in original). Then recorded the incident on his phone. Id. ¶ 25.
Then and McAusland pled guilty to criminal charges stemming from the above actions.
Id. ¶¶ 27-29. Casciano subsequently filed suit on April 1, 2019 against Then, McAusland and
the City Defendants. ECF No. 1. On December 23, 2019, Casciano committed suicide and his
body was discovered by his mother, plaintiff Marie Casciano. Id. ¶ 32.
B. Procedural Background
Following Casciano’s death, an amended complaint was filed by plaintiff Marie Casciano
in her individual capacity and as General Administratrix and Administratrix ad Prosequendum of
the Estate of Andrew Casciano on June 16, 2021. ECF No. 47. On January 19, 2022, the
Honorable John Michael Vazquez granted in part and denied in part the City Defendants’ motion
to dismiss. ECF Nos. 74, 75. Plaintiff filed a second amended complaint (“SAC”) on February
17, 2022. ECF No. 77. Judge Vazquez granted in its entirety the City Defendants’ renewed
motion to dismiss on August 8, 2022. ECF Nos. 114, 115. Plaintiff filed the Third Amended
Complaint on September 5, 2023. ECF No. 118. The Third Amended Complaint asserts the
following claims against the City Defendants: 42 U.S.C § 1983 (Count one); New Jersey Civil
Rights Act (NJCRA) (Count two); negligence (Count seven); wrongful death and survivorship
(Count eight); and negligent infliction of emotional distress (Count nine).

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III.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6)
To survive dismissal under Rule 12(b)(6), a complaint must meet the pleading

requirements of Rule 8(a)(2) and “contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation
omitted). In evaluating the sufficiency of a complaint, a court must also draw all reasonable
inferences in favor of the non-moving party. Phillips, 515 F.3d at 234. Ultimately, a complaint
“that offers ‘labels and conclusions’ or . . . tenders ‘naked assertions’ devoid of further factual
enhancement,” will not withstand dismissal under Rule 12(b)(6).

Iqbal, 556 U.S. at 678

(citations omitted).
IV.

DISCUSSION
A. Section 1983 and New Jersey Civil Rights Act
“[A] § 1983 claim against a municipality may proceed in two ways.” Forrest v. Parry,

930 F.3d 93, 105 (3d Cir. 2019). “A plaintiff may put forth that an unconstitutional policy or
custom of the municipality led to his or her injuries . . . or that they were caused by a failure or
inadequacy by the municipality ‘that reflects a deliberate or conscious choice.’” Id. (quoting
Brown v. Muhlenberg Twp., 269 F.3d 2015, 215 (3d Cir. 2001). The NJCRA is “construed . . . in
terms nearly identical” to Section 1983. Velez v. Fuentes¸ No. 15-6939, 2016 WL 4107689, at
*5 (D.N.J. July 29, 2016) (citation omitted). As such, the Court considers Plaintiff’s Section
1983 and NJCRA claims together.
In the TAC, Plaintiff claims that the City Defendants are liable for “a custom of failing to
investigate citizen complaints.” Opp. at 20. (quoting Brice v. City of York, 528 F. Supp. 2d 504,
518 (M.D. Pa. 2007)). This assertion is based on newly pled factual allegations that from 2015

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to 2019, the City of Paterson’s Internal Affairs Division concluded 67 out of 68 excessive force
complaints with a finding of “not sustained” or “exonerated.” TAC ¶ 38; Opp. at 21. Plaintiff
argues that defendants Then and McAusland were aware of this custom of “clearing of officers”
and it “was a factor in their assault of Casciano.” TAC ¶ 43.
In support of the opposition to the motion to dismiss, Plaintiff cites Beck v. City of
Pittsburgh as the “seminal case concerning the failure to investigate civilian complaints on
excessive use of force.” Opp. at 20 (citing 89. F.3d 966 (3d Cir. 1996)).

In Beck, the court

overturned a judgment as a matter of law because the plaintiff had “presented sufficient evidence
from which a reasonable jury could have inferred that the [municipality] knew and acquiesced in
a custom tolerating the tacit use of excessive force by its police officers.” Beck, 89 F.3d at 976.
According to Plaintiff, the City Defendants “repeatedly exonerated officers accused of excessive
force, just as was done by the City of Pittsburgh in Beck.” Opp. at 23.
However, the court in Beck did not merely point to a general practice of exoneration in
coming to its holding. Rather, the court noted specific evidence provided by the plaintiff that
supported a finding that “the [municipality’s] procedures are inadequate to protect civilians from
police misuse of force.” Id. at 974. For instance, the court found that the plaintiff had adduced
evidence to show that the complaint review process was “structured to curtail disciplinary
actions and stifle investigations” as well as made witness testimony “inert” while giving officer
testimony “special, favorable consideration.” Id. The court thus concluded that a jury could
have determined that the review process at issue was “nothing more than a facade.” Id.
Here, Plaintiff’s allegation that the City Defendants “repeatedly exonerated officers” falls
short of the specificity provided by the plaintiff in Beck. Opp. at 20. Crucially, Plaintiff does
not identify any particular shortcomings of the City Defendant’s complaint review process.

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Instead, Plaintiff relies on the rate of exoneration to imply that “[t]he Internal Affairs Department
was looking the other way.” TAC ¶ 41. But mere statistics, without more, do not establish that
the review process was thereby flawed. See White v. City of Vineland, No. 16-8308, 2018 WL
4583509, at *5-6 (D.N.J. Sept. 24, 2018) (finding allegation that all 185 complaints of excessive

force against department’s officers ended in exoneration fails to “illuminate whether
constitutional violations were perpetrated . . . and then swept under the rug” or whether the
department “took these complaints seriously, investigated them rigorously, and found its officers
performed adequately”).
Plaintiff’s Section 1983 and NJCRA claims were previously dismissed for the same
failure to plead specific investigatory shortcomings. In the SAC, Plaintiff alleged in support of
her claims against the City Defendants that McAusland was twice exonerated on accusations of
excessive force. SAC ¶¶ 38-39. Dismissing Plaintiff’s claims, Judge Vazquez explained that the
complaint did not “allege that such review was insufficient or give any details about the incidents
from which the Court can infer that McAusland’s actions were improper despite the Internal
Affairs decisions.” ECF No. 114 at 11. As a result of this failure to allege specifics regarding
Internal Affairs investigations, Judge Vazquez held that Plaintiff’s Section 1983 and NJCRA
claims against the City Defendants were not plausibly alleged. ECF No. 114 at 11. The TAC
fares no better.
Plaintiff also does not explain how the alleged practice of exoneration caused her claimed
injuries. A plaintiff must show that “there was a plausible causal connection between the
[municipality’s] alleged custom of inadequately investigating complaints of police misconduct
and the injuries Plaintiff suffered.”

Monaco v. City of Camden, No. 04-2406, 2008 WL

8738213, at *9 (D.N.J. Apr. 14, 2008). Plaintiff claims that the alleged custom “was clearly

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known” to defendants Then and McAusland and was thus “a factor in their assault.” TAC ¶ 43.
But beyond this conclusory assertion, Plaintiff does not explain how McAusland and Then would
be privy to the results of Internal Affairs investigations such that they would impact the officers’
actions. Without this link in the chain, Plaintiff cannot plausibly allege a “connection” between
the practices of the Internal Affairs Department and her injuries.
In sum, Plaintiff fails to adequately plead the alleged custom of failing to investigate
citizen complaints. Accordingly, Plaintiff’s Section 1983 and NJCRA claims against the City
Defendants are dismissed.
B. Negligence
Plaintiff alleges that the City Defendants were negligent in both their hiring and
supervision of defendants McAusland and Then. TAC ¶ 113-14. To establish negligent hiring
or supervision, a plaintiff must show: “(1) the employer knew or had reason to know of the
particular unfitness, incompetence or dangerous attributes of the employee and could reasonably
have foreseen that such qualities created a risk of harm to other persons, and (2) the employer's
negligence in hiring or supervision [of] the employee resulted in the dangerous attribute
proximately causing plaintiff's injury.”

Johnson v. Provenzano, No. 12-1253, 2014 WL

7011545, at * 9 (D.N.J. Dec. 11, 2014) (citation omitted).
Plaintiff has not supplied sufficient allegations to support a negligent hiring claim.
Dismissing the SAC, Judge Vazquez previously noted that Plaintiff supplied “no allegations as to
what the City Defendants knew about McAusland and Then before they were hired as police
officers.” ECF No. 114 at 14. The TAC does not cure this deficiency. Rather, Plaintiff asserts
that the aforementioned “alleged improper operation of the Internal Affairs department” supports
a negligent hiring claim. Opp. at 25. But Plaintiff does not explain how investigations of

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complaints against officers sheds light on the behavior of defendants Then and McAusland
before they were hired as officers, as would be necessary for a claim. See Adams v. City of
Camden, 461 F. Supp. 2d 263, 269 (D.N.J. 2006) (dismissing negligent hiring claim where
plaintiff failed to allege that officers “displayed any unfitness prior to their hiring”).
Plaintiff also fails to plead sufficient facts to support a negligent supervision claim
regarding either Then or McAusland. As to Then, Judge Vazquez previously found that the SAC
contained “no allegations whatsoever” detailing Then’s conduct as an officer. ECF No. 114 at
14. Plaintiff responds in the TAC by including an additional factual allegation that Then was
accused of false arrest in October 2017 and later exonerated by one of the City Defendants. TAC
¶ 37. However, Plaintiff does not explain how an accusation of false arrest demonstrates that the
City Defendants should have known that Then posed a danger of using excessive force, as
alleged here.

See Snell v. City of York, Pennsylvania, 564 F.3d 659, 672 (3d Cir. 2009)

(“[M]erely because a person has been falsely arrested does not mean that excessive force has
been used.”) (citation omitted).
Plaintiff made a similar unavailing argument in the SAC concerning alleged improper
acts by an officer defendant. Specifically, Plaintiff claimed that the City Defendants were liable
for negligent supervision because they were aware that McAusland had been subject to
investigation for narcotics distribution. In discounting this allegation as a basis for Plaintiff’s
claim, Judge Vazquez explained that narcotics distribution was “unconnected to use of force or
the other rights at issue” and thus does not demonstrate that an officer “posed a particular danger
of using excessive force against the public.” ECF No. 114 at ¶ 14. Likewise, the present claim
of false arrest against Then is “unconnected to use of force” and consequently would not put the

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City Defendants on notice that Then “posed a particular danger of using excessive force.” Id.
As such, it cannot support a claim of negligent supervision over Then.
Turning further to the discussion of negligent supervision over McAusland, the TAC fails
to supply sufficient allegations of prior incidents to support a claim. In the SAC, Plaintiff
alleged that McAusland was subject to two investigations for alleged excessive use of force and
involved in eight incidents involving excessive use of force. SAC ¶ 52. Dismissing the claim,
Judge Vazquez explained that two excessive force complaints are “insufficient to sufficiently
plead knowledge” for purposes of negligent supervision. ECF No. 114 at 15 (citing Russo v.
City of Paterson, No. 16-5665, 2018 LEXIS 196921, at *15-16 (D.N.J. Nov. 16, 2018) (finding
one or two excessive force complaints fail to “satisfy the knowledge element”)). Plaintiff repeats
these allegations in the TAC and does not plead any additional facts regarding McAusland’s
behavior as an officer, as opposed to the department-wide allegations regarding a practice of
exoneration.

See TAC ¶¶ 35-36.

Thus, Plaintiff fails to adequately allege that the City

Defendants negligently supervised McAusland.
In sum, Plaintiff fails to adequately allege negligent hiring or supervision as to either
Then or McAusland. Accordingly, Plaintiff’s negligence claim against the City Defendants is
dismissed.
C. Wrongful Death and Survivorship
Plaintiff asserts claims against the City Defendants under the Wrongful Death Act and
the Survivor’s Act stemming from Andrew Casciano’s suicide. TAC ¶¶ 118-124. The Wrongful
Death Act “permits certain persons . . . to bring a tort action against a person who tortiously
caused the death of another.” Marie v. McGreevey, 314 F.3d 136, 140 (3d Cir. 2022). The
Survivor’s Act “gives executors or administrators a right of action for tortious injury or damage

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to the deceased or his property incurred prior to death.” Anderson v. Cnty. of Monmouth, No. 51809, 2005 WL 3588531, at *5 (D.N.J. Dec. 30, 2005) (citation omitted). In either case, an
underlying tortious act by the defendant is required. See Smith v. Joseph P. Riley, D.O., Nos. 1472476, 15-7374, 2016 WL 3398454, at *4 (D.N.J. June 15, 2016) (“[B]oth wrongful death and
survivorship claims require the decedent to have had a viable claim.”).
Plaintiff fails to plead an underlying tortious act by the City Defendants. Although the
TAC alludes to “wrongful acts and/or negligence” of the City Defendants, Plaintiff in fact only
alleges negligence. See TAC ¶¶ 71-130. Because the negligence claim is dismissed, there is no
“viable claim” to ground liability under either statute.

Smith, 2016 WL 3398454, at *4.

Accordingly, the Wrongful Death Act and Survivor’s Act claims against the City Defendants are
dismissed. See ECF No. 114 at 16 (“Because Plaintiff has not plausibly pled negligence or any
other wrongful act by the City Defendants, the derivative Wrongful Death Act and Survivor’s
Act claims fail as well.”).
D. Negligent Infliction of Emotional Distress
Plaintiff asserts a negligent infliction of emotional distress claim against the City
Defendants stemming from her discovery of her son’s body following his suicide. TAC ¶¶ 125130. “To prove a claim of negligent infliction of emotional distress, a plaintiff must establish:
(1) a duty of care; (2) breach of that duty; (3) causation; and (4) damage in the form of severe
emotional distress that was reasonably foreseeable.” Jovic v. Legal Sea Foods, LLC, No. 161586, 2018 WL 5077900, at *6 (D.N.J. Oct. 18, 2018) (citation omitted).
Plaintiff fails to establish that the City Defendants owed her a duty of care or breached
that duty of care. Plaintiff bases her theory of negligent infliction of emotional distress on the
same alleged failures of the City Defendants as in her negligence claim discussed above. See

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Pltf. Br. at 30. Because Plaintiff fails to adequately plead her negligence claim against the City
Defendants, her negligent infliction of emotional distress claim is dismissed, as well.
V.

CONCLUSION
For the reasons set forth above, Defendants’ motion to dismiss is granted.
Accordingly, IT IS on this 30th day of August, 2024
ORDERED that Defendants’ motion to dismiss counts one, two, seven, eight and nine of

Plaintiff’s Third Amended Complaint (ECF No. 128) is GRANTED; and it is further
ORDERED that counts one, two, seven, eight and nine of Plaintiff’s Third Amended
Complaint (ECF No. 118) against defendants City of Paterson, Troy Oswald and Jerry Speziale
are DISMISSED WITHOUT PREJUDICE; and it is further
ORDERED that to the extent Plaintiff can cure the pleading deficiencies identified in the
Court's opinion, she shall have thirty (30) days from the date of this order to file an amended
complaint. Insofar as Plaintiff submits an amended complaint, she shall also provide a form of
the amended complaint that indicates in what respect it differs from the Third Amended
Complaint, by bracketing or striking through materials to be deleted and underlining materials to
be added. See L. Civ. R. 15(a)(2).
SO ORDERED.

/s/ Claire C. Cecchi
CLAIRE C. CECCHI, U.S.D.J.

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