DAVIS v. FROEHLICH et al

Filing 49

OPINION & ORDER denying 35 Moving Defendants' Motion to Dismiss. etc. Signed by Judge John Michael Vazquez on 3/7/2022. (bt)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ABDUL DAVIS,
Plaintiff,

Civil Action No. 19-10620
OPINION & ORDER

v.
DENNIS BURKE, et al.,
Defendants.

John Michael Vazquez, U.S.D.J.
Pro se Plaintiff Abdul Davis alleges that multiple law enforcement members violated his
civil rights while executing an arrest warrant at Plaintiff’s apartment. Presently before the Court
is a motion to dismiss filed by some of the law enforcement Defendants.1 D.E. 35. Plaintiff filed
an opposition, D.E. 40, 41, to which the Moving Defendants replied, D.E. 42. The Court reviewed
the submissions2 made in support and in opposition to the motion and considered the motion
without oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons
that follow, the motion to dismiss is DENIED.

1

The Moving Defendants are Union County Sheriff’s Officers Dennis Burke, Carlo Caparruva,
Lt. Guerrant, Manuel Cruz, James Miller, Kenneth Randazza, and Ryan Hanrahan. The Union
County Sherriff’s Department is also party to the motion but as discussed below, Plaintiff does not
appear to assert claims against the Sheriff’s Department.

2

The Moving Defendants’ brief in support of their motion (D.E. 35-1) is referred to as “Defs. Br.”
and their reply brief (D.E. 42) is referred to as “Defs. Reply”. Plaintiff’s opposition papers are
filed as two different docket entries (D.E. 40, 41). As a result, the Court refers to Plaintiff’s
opposition by docket entry.

I.

FACTUAL3 AND PROCEDURAL BACKGROUND
On April 20, 2016, Plaintiff was indicted by a grand jury in New York County. TAC ¶ 10.

That same day, the Clerk of the New York County Supreme Court issued a warrant for Plaintiff’s
arrest. Id. ¶ 11. The next day, seven Union County Sheriff’s Officers (the Moving Defendants)
and two New York City Police Officers4 went to Plaintiff’s residence in Linden, New Jersey. Id.
¶ 13. Defendant Burke (the lone sheriff’s officer) rang the doorbell. Plaintiff walked downstairs
from his second-floor apartment and asked, “Who is it?” Id. ¶ 15. Burke answered, “Sheriff’s
Office.” Id. Plaintiff opened the door and was immediately handcuffed. Id. Burke “moved past”
Plaintiff and met Plaintiff’s girlfriend, Shelita Funderberk, on a staircase leading up to Plaintiff’s
apartment. Burke asked Funderberk “[i]s anyone else up-stairs in your apartment?” and she stated
that two friends were upstairs. Id. ¶ 17. As an unnamed Defendant handcuffed Funderberk, Burke
went upstairs and walked into the apartment. Id. The two friends in the apartment were also
arrested and taken into custody. Id. ¶ 17.
After everyone was removed from the apartment and standing on the front porch, Burke
approached Funderberk and requested permission to search the apartment. Burke gave Funderberk
a permission to search form and explained the form in its entirety. Burke also told Funderberk that
she could refuse consent at any time but if she did, she would be arrested. Id. ¶ 18. As Burke
explained the consequences of her refusal, the other Defendants “aggressively” stood around
Funderberk. Some of these Defendants took out their handcuffs and nightsticks. Id. ¶ 19. In

3

The factual background is taken from the Third Amended Complaint (“TAC”). D.E. 12. When
reviewing a motion to dismiss, a court accepts as true all well-pleaded facts in a complaint. Fowler
v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

4

Defendants Christopher Shaughnessy and Ivelisse Rodriguez, the two New York City Police
Officer Defendants, have not been served.
2

addition, as Burke was speaking to Funderberk, Malik Rainey, one of the friends who was in the
apartment, yelled that Funderberk did not live in the apartment. Id. ¶ 20. Plaintiff also alleges that
he made it “crystal clear” to Burke that he did not consent to any search of the apartment and that
Funderberk should not sign the form. Id. ¶ 21. Funderberk signed the consent form. Id.
Defendants then searched Plaintiff’s apartment and found weapons, among other things.
Id. ¶ 21. Plaintiff was subsequently taken to the Union County Jail and charged with additional
offenses pursuant to New Jersey law. Id. ¶¶ 23, 26. Two days later, Plaintiff was indicted for
being a felon in possession of a weapon, in violation of N.J. Stat. Ann. § 2C:39-7b.5 Defs. Br.,
Ex. B. Plaintiff was extradited to New York in October 2016. Id. ¶¶ 23, 27. Plaintiff was
ultimately found guilty of numerous offenses by a jury in New York and is presently serving his
sentence for those offenses. See D.E. 41-3 (New York State Unified Court System case details).
When Plaintiff filed his initial Complaint in this matter, he sought to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. D.E. 3. The Court granted Plaintiff’s application to
proceed in forma pauperis and conducted an initial screening pursuant to 28 U.S.C. §
1915(e)(2)(B). Through the screening, the Court dismissed the complaint without prejudice for
failure to state a claim. D.E. 5. The Court provided Plaintiff with leave to file an amended
complaint, which Plaintiff filed on November 25, 2019. D.E. 9. The Court also screened the
Amended Complaint and determined that Plaintiff could move forward only as to a Section 1983
claim against Defendant Burke. D.E. 10 at 5-6. The Court, however, provided Plaintiff with leave
to file another amended pleading. Id. at 7-8. Plaintiff subsequently filed the TAC. D.E. 12.

5

A court may consider matters of public record to decide a Rule 12(b)(6) motion. Lum v. Bank of
Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004). Judicial proceedings and court documents are matters
of public record. See Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007).
3

In the TAC, Plaintiff asserts three claims alleging that Defendants violated his
constitutional rights. Plaintiff’s claims pertain to Defendants’ actions while getting Funderberk’s
consent to search the apartment. TAC ¶¶ 28-37. The Moving Defendants subsequently filed the
instant motion to dismiss, seeking to dismiss the TAC for failure to state a claim.6 D.E. 35.
Because Plaintiff is proceeding in forma pauperis and was only permitted to move forward
with his claims against Defendant Burke, the Court is still required to screen the TAC as to the
eight other Defendants.7 As a result, in addition to addressing Defendants’ argument for dismissal,
the Court also screens the TAC pursuant to Section 1915(e)(2)(B), as to the additional Defendants.
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 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). The Moving
Defendants also seek to dismiss the TAC pursuant to Rule 12(b)(6).

See Defs. Br. at 8.

Accordingly, the Court addresses the motion and screening together.

6

Defendants’ motion is a cross-motion to Plaintiff’s motion to appoint pro bono counsel. D.E.
32. The motion to appoint counsel will be addressed separately.
7

Because Plaintiff was only allowed to move forward with his claims against Defendant Burke,
Plaintiff was just permitted to serve Defendant Burke with the SAC. The Moving Defendants,
however, answered the TAC, D.E. 17, and filed the instant motion. Further, the Moving
Defendants do not seek to dismiss the TAC for insufficient service of process. As a result, the
Moving Defendants have waived their right to challenge service. See Fed. R. Civ. P. 12(h)(1).
4

To state a claim that survives a Rule 12(b)(6) motion to dismiss, a complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 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). 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.” Connelly v. Lane Const. Corp., 809 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 plaintiff’s 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.”
Twombly, 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 a pro se plaintiff's ‘bald assertions’ or ‘legal
conclusions.’” Grohs v. Yatauro, 984 F. Supp. 2d 273, 282 (D.N.J. 2013) (quoting Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).
III.

ANALYSIS
1. Constitutional Violations
Plaintiff alleges that Defendants violated his constitutional rights.

Thus, while not

explicitly stated, Plaintiff appears to assert claims pursuant to 42 U.S.C. § 1983. Section 1983, in
relevant part, provides as follows:

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Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress[.]
42 U.S.C. § 1983. Section 1983 does not provide substantive rights; rather, Section 1983 provides
a vehicle for vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 39394 (1989). To state a Section 1983 claim, 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 asserts claims against New York City police officers and Union County Sheriff’s
Department officers.

Accordingly, Defendants are state actors for Section 1983 purposes.

Moreover, Plaintiff’s claims involve Defendants’ conduct in searching his apartment. Specifically,
Counts One and Two allege that Defendants obtained consent to search through coercion, TAC ¶¶
28-31, and Count Three alleges that Defendants knew Funderberk could not consent to a search
because she did not live in the apartment, id. ¶¶ 32-37. “The Fourth Amendment prohibits
unreasonable searches and seizures.” United States v. Stabile, 633 F.3d 219, 230 (3d Cir. 2011).
Accordingly, Plaintiff alleges that Defendants violated his Fourth Amendment rights.8

8

Plaintiff also alleges that Defendants violated his Fifth and Fourteenth Amendment rights. See,
e.g., TAC ¶ 29. The TAC, however, fails to assert facts to support a Fifth or Fourteenth
Amendment violation (save the incorporation of the of the Fourth Amendment to state actors by
way of the Fourteenth Amendment). Therefore, the Court focuses solely on the Fourth
Amendment.
6

A. Coerced Consent (Counts One and Two)
Plaintiff alleges that Defendants searched his apartment after Funderberk gave written
consent to search but that the consent was obtained through coercion. “Warrantless searches and
seizures inside someone’s home . . . are presumptively unreasonable unless the occupants consent
or probable cause and exigent circumstances exist to justify the intrusion.” United States v. Cole,
437 F.3d 361, 365–66 (3d Cir. 2006).

In other words, “[c]onsent is an exception to the

requirements of both a warrant and probable cause.”9 United States v. Murray, 821 F.3d 386, 391
(3d Cir. 2016) (quoting Stabile, 633 F.3d at 230).
Whether a person’s consent to search a home is valid and of constitutional force depends
upon whether consent was freely given. See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).
“Where there is coercion, there cannot be consent[,]” Bumper v. North Carolina, 391 U.S. 543,
550 (1968), and such supposed consent would be “ineffective if extracted by the state under threat
of force or under claim of government authority.” Good v. Dauphin Cnty. Soc. Servs. for Children
& Youth, 891 F.2d 1087, 1093 (3d Cir. 1989). To determine whether a person’s consent to search
was freely given, courts must ensure that the proffered consent was, in fact, the product of the
person’s free will and not caused by police coercion. To do so, courts analyze the totality of the
circumstances surrounding the interaction in question. See Bustamonte, 412 U.S. at 227. This is
an objective inquiry, requiring a review of whether the conduct under scrutiny would have
impacted a reasonable person’s decision to consent. Id.
In the January 30 Opinion, the Court concluded that Plaintiff sufficiently pled that Burke
obtained consent through coercion by threatening arrest. Jan. 30 Opinion at 5-6. The Court,

9

While Plaintiff alleges that Defendants had an arrest warrant, he does not allege that they obtained
a search warrant.
7

however, determined that in the SAC, Plaintiff did not sufficiently plead that any other Defendant
helped Burke obtain the alleged improper consent. Id. In the TAC, Plaintiff alleges that as Burke
was explaining to Funderberk that she would be arrested if she did not consent to a search, every
Defendant physically moved around Funderberk, and some took out their handcuffs and
nightsticks. TAC ¶ 19. Plaintiff sufficiently alleges that each Defendant played a part in
wrongfully coercing Funderberk to consent to the search. As a result, Plaintiff states a claim
against every Defendant in Counts One and Two.
B. Ability to Consent (Count Three)
Plaintiff also alleges that Defendants knew Funderberk could not consent to a search
because she did not live in the apartment. TAC ¶¶ 32-35. Again, voluntary consent is an exception
to the warrant requirement, and a third party may provide consent if she has common authority
over the premises or effects that are searched. Stabile, 633 F.3d at 230. “Common authority rests
. . . on [the] ‘mutual use of the property by persons generally having joint access or control.’” Id.
(quoting United States v. Matlock, 415 U.S. 164, 170 (1974)). Whether common authority exists
is an objective inquiry. United States v. Al-Salabi, No. 07-687, 2008 WL 2699429, at *10 (D.N.J.
June 27, 2008) (explaining that a court must consider if “the facts available to the officer at the
moment warrant a man of reasonable caution in belief that the consenting party had authority over
the premises?” (quoting Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990))).
In this instance, Plaintiff pleads that as Burke asked Funderberk for consent, Rainey yelled
that Funderberk did not live in the apartment and did not have anything there (presumably in the
apartment). TAC ¶ 35. Viewing these allegations in a light most favorable to Plaintiff, Plaintiff
sufficiently pleads that a reasonable person would not believe that Funderberk had common
authority over the apartment. Consequently, Plaintiff also states a claim in Count Three.

8

In sum, Plaintiff plausibly pleads three Section 1983 claims against Defendants10 and
Plaintiff can move forward with this matter pursuant to Section 1915(e)(2)(B). Further, the
Moving Defendants’ motion is denied, to the extent they seek dismissal for failure to state a claim.
2. Qualified Immunity
Next, the Moving Defendants contend that the TAC must be dismissed as to them because
of qualified immunity. Defs. Br. at 13-15. Qualified immunity can protect a state actor from
liability in a Section 1983 case. Wright v. City of Philadelphia, 409 F.3d 595, 599 (3d Cir. 2005).
“Qualified immunity shields government officials from personal liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Paszkowski v. Roxbury Twp. Police Dep’t, No. 13-7088,
2014 WL 346548, at *2 (D.N.J. Jan. 30, 2014). A court must engage in the following two-part
inquiry to determine whether qualified immunity applies: (1) whether the allegations, taken in the
light most favorable to the party asserting the injury, show that the defendant’s conduct violated a
constitutional right; and (2) whether the constitutional right at issue was clearly established at the
time of the alleged violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009). “If the plaintiff
fails to satisfy either prong, the defendant is entitled to judgment as a matter of law.” James v.
City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (finding defendant police officers were
entitled to qualified immunity at the motion to dismiss stage) (citing Pearson, 555 U.S. at 232).

10

Although Plaintiff names “all of the Union County Sheriff’s Department” and the 33rd Precinct
of the New York City Police Department as Defendants in the caption, there are no allegations in
the TAC that would support any claims against these entities. See Estate of Roman v. City of
Newark, 914 F.3d 789, 798 (3d Cir. 2019) (explaining that a municipality may only be liable for
purpose of Section 1983 if the “local government’s policy or custom inflicted the injury in
question” (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978))). As a result, to the extent
that Plaintiff intended to assert claims against either entity, they are both dismissed as Defendants
in this matter pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
9

But “[t]he qualified immunity analysis involves a fact-intensive inquiry that is generally
ill-suited for resolution at the pleadings stage.” Janowski v. City of North Wildwood, 259 F. Supp.
3d 113, 121 (D.N.J. 2017) (quoting Batiz v. Brown, No. 12-581, 2013 WL 1137531, at *7 (D.N.J.
Mar. 14, 2013)). Therefore, “qualified immunity will be upheld on a 12(b)(6) motion only when
the immunity is established on the face of the complaint.” Thomas v. Independence Township,
463 F.3d 285, 291 (3d Cir. 2006). Finally, although a plaintiff must plausibly plead that a
constitutional violation occurred, he “has no obligation to plead a violation of a clearly established
law.” Id. at 293. This burden rests with a defendant, even at the motion to dismiss stage. Id. at
293-94.
Because the Court already concluded that Plaintiff sufficiently pled that a constitutional
violation occurred, the Court turns to the second prong of the qualified immunity defense. A
clearly established right is one that is “sufficiently clear ‘that every reasonable official would have
understood that what he is doing violates that right.’” Reichle v. Howards, 566 U.S. 658, 664
(2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Thus, the second prong of the
qualified immunity analysis “shields an officer from suit when she makes a decision that, even if
constitutionally deficient, reasonably misapprehends the law governing the circumstances she
confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (citing Saucier v. Katz, 533 U.S. 194,
206 (2001)).

Here, the Moving Defendants do not address whether either of the alleged

constitutional violations were clearly established at the time. As discussed, this is a defendant’s
burden. Consequently, Defendants fail to demonstrate that they are entitled to qualified immunity.
See Rosenberg v. Vangelo, 93 F. App’x 373, 378-79 (3d Cir. 2004) (“To the extent the Supervisory
Defendants fail to address the issue [of whether a right was clearly established], therefore, their
claim for qualified immunity fails ipso facto.”).

10

3. Younger Abstention
Finally, the Moving Defendants argue that Plaintiff’s claims must be dismissed under the
Younger abstention doctrine. Defs. Br. at 12-13. The Younger abstention doctrine “creates a
separate and independent judicially created abstention doctrine” for federal courts involvement in
certain ongoing state court proceedings. Ivy Club v. Edwards, 943 F.2d 270, 278 (3d Cir. 1991).
As relevant here, the doctrine prohibits “federal intrusion into ongoing state criminal
prosecutions.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 78 (2013); see also Argen v. Kessler,
No. 18-963, 2018 WL 4676046, at *7-8 (D.N.J. Sept. 28, 2018) (stating that Younger abstention
“requires dismissal of certain federal claims for injunctive or declaratory relief that would interfere
with” ongoing state criminal prosecutions).
Although Plaintiff was involved in criminal proceedings in New Jersey and New York,
Plaintiff’s allegations in this matter only appear related to the New Jersey criminal proceeding.11
As discussed, Defendants found weapons during their allegedly unconstitutional search of
Plaintiff’s apartment, and these weapons form the basis for the New Jersey indictment. See TAC
¶ 23; Defs. Br., Ex. B. Therefore, only Plaintiff’s New Jersey criminal proceeding is relevant to
Defendants’ Younger abstention argument.
Plaintiff is not trying to enjoin the New Jersey criminal proceeding or have this Court
otherwise interfere. With respect to the New Jersey criminal charges, Plaintiff indicates that the

11

Plaintiff’s opposition largely focuses on whether multiple warrants were appropriate. See D.E.
40, 41. The Court acknowledges that these allegations could conceivably impact the New York
criminal matter. Plaintiff, however, does not assert claims related to any Defendant’s allegedly
unconstitutional conduct in obtaining or executing any warrants in the TAC. As discussed,
Plaintiff’s allegations focus on the warrantless search of his apartment. Accordingly, the Court
focuses solely on the allegations that appear in the TAC, not in Plaintiff’s opposition. See Pa. ex
rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“It is axiomatic that the
complaint may not be amended by the briefs in opposition to a motion to dismiss.”) (quoting Car
Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.1984)).
11

indictment was dismissed in 2017. D.E. 41-6. The Moving Defendants counter that only the
warrants issued against Plaintiff were dismissed and that Plaintiff’s case remains active. Reply at
2-3. But the Moving Defendants indicate that the matter is presently in “inactive fugitive status,”
Reply, Ex. A; there has been no movement in the case since Defendant was extradited to New
York in 2016, and there are no scheduled hearings or events in the matter, Defs. Opp. Ex. D.
Defendants fail to demonstrate that the State has any intention to move forward with the case in
New Jersey. In addition, a state proceeding remains “pending” where, among other things,
“adequate state-court judicial review of the . . . determination is available to the federal claimants.”
O’Neill v. City of Philadelphia, 32 F.3d 785, 791 (3d Cir. 1994); see also FOCUS v. Allegheny
Cnty. Court of Common Pleas, 75 F.3d 834, 843 (3d Cir. 1996) (state proceeding was not ongoing
for Younger abstention purposes because as a non-party to the state proceeding, the plaintiff could
not “secure an adjudication of its constitutional claim” in state court). To the extent that the New
Jersey proceedings have not been closed or fully dismissed, it is not clear that Plaintiff could even
raise his constitutional challenges in the New Jersey proceeding given the “inactive fugitive status”
of his case. Therefore, the Court concludes that there were not any ongoing criminal matters when
Plaintiff filed his initial complaint.12 Without an ongoing state criminal prosecution, the Younger
abstention doctrine is inapplicable.

12

The Court notes that Younger abstention only prohibits a federal court from hearing cases
seeking equitable relief. Spring Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (explaining that
“courts of equity should not act . . . to restrain a criminal prosecution, when the moving party has
an adequate remedy at law and will not suffer irreparably injury if denied equitable relief.”)
(emphasis added). Thus, “[a]bstention is most obviously appropriate in cases where a plaintiff
asks a federal court to enjoin some state judicial or quasi-judicial proceeding.” Kaul v. Christie,
372 F. Supp. 3d 206, 234 (D.N.J. 2019). Here, Plaintiff does not ask the Court to enjoin either
state criminal proceeding. In addition, while Plaintiff seeks a declaratory judgment that
Defendants violated his constitutional rights, he largely appears to be seeking monetary relief. See
TAC ¶ 37. This also demonstrates that abstention is not appropriate here.
12

In sum, Defendants fail to establish any grounds to dismiss the TAC. Accordingly, and for
good cause shown,
IT IS on this 7th day of March, 2022,
ORDERED that the Clerk of the Court is directed to file the Third Amended Complaint
(D.E. 12) without prepayment of the filing fee; and it is further
ORDERED that the Clerk shall mail to Plaintiff a transmittal letter explaining the
procedure for completing United States Marshal (“Marshal”) 285 Forms (“USM-285 Forms”) for
service as to Defendants Christopher Shaughnessy and Ivelisse Rodriquez; and it is further
ORDERED that once the Marshal receives the USM-285 Form(s) from Plaintiff and the
Marshal so alerts the Clerk, the Clerk shall issue summons in connection with each USM-285
Form that has been submitted by Plaintiff, and the Marshal shall serve summons, solely as to
Defendants Christopher Shaughnessy and Ivelisse Rodriquez, and the Third Amended Complaint
to the address specified on each USM-285 Form, with all costs of service advanced by the United
States13; and it is further
ORDERED that the Moving Defendants have waived their right to contest service; and it
is further
ORDERED that Defendants shall file and serve a responsive pleading within the time
specified by Federal Rule of Civil Procedure 12; and it is further
ORDERED that the Moving Defendants’ motion to dismiss, D.E. 35, is DENIED; and it
is further

13

Alternatively, the Marshal may notify Defendants that an action has been commenced and
request that they waive personal service of a summons in accordance with Fed. R. Civ. P. 4(d).
13

Type text here
ORDERED that the Clerk of the Court shall mail a copy of this Opinion and Order to
Plaintiff by regular mail.

___________________________________
John Michael Vazquez, U.S.D.J. 

14