PHILLIPS v. NEW JERSEY TRANSIT et al
OPINION. Signed by Judge Claire C. Cecchi on 4/28/2021. (ld, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 19-13427
NEW JERSEY TRANSIT, et al.
CECCHI, District Judge.
This matter comes before the Court on two motions to dismiss Plaintiff Charmaine Phillip’s
(“Plaintiff”) Complaint (ECF No. 1-2 (“Compl.”)) pursuant to Federal Rule of Civil Procedure
12(b)(6): (1) Defendant Alexy Ayala’s (“Ayala”) motion to dismiss (ECF No. 9); and (2)
Defendants New Jersey Transit Corporation (“NJ Transit”), Sarah Bernal (“Officer Bernal”), and
Dennis Wells’ (“Sergeant Wells”) (collectively, the “State Defendants”) motion to dismiss (ECF
No. 10). The Court decides this matter without oral argument pursuant to Federal Rule of Civil
Procedure 78(b). For the reasons set forth below, both motions are granted, and the Amended
Complaint is dismissed.
This case arises out of the filing of an allegedly false report by Defendant Ayala and her
stepson, non-moving Defendant Carlos Bruno (“Bruno”), 1 to Defendant NJ Transit’s Police
Department regarding a vehicular incident at or near Newark Penn Station. After receiving the
allegedly false report, Defendant Officer Bernal initiated an investigation into the matter, which
led to the arrest of Plaintiff. Plaintiff asserts that the NJ Transit Police Department’s investigatory
While Bruno has not filed a motion to dismiss, he did file a motion to appoint pro bono counsel
on February 14, 2020 (ECF No. 22), which was denied on May 14, 2020 (ECF No. 32).
procedures were flawed, particularly those concerning her identification by Ayala as the culprit of
the crime. Plaintiff was charged with four crimes in state court and spent forty-four days in jail
before she was released on her own recognizance. Plaintiff was then prosecuted and indicted for
the crimes. Before trial, Plaintiff succeeded on a motion to suppress out-of-court and in-court
identifications, and the prosecutor subsequently dropped all charges against her. In the instant
action, Plaintiff asserts that Ayala, Bruno, and the officers involved in her investigation engaged
in malicious prosecution, but she has failed to overcome the presumption of probable cause
afforded by the grand jury indictment. Plaintiff’s other subsidiary claims suffer from pleading
a) Factual Background
The following facts are accepted as true for purposes of the instant Motion. On July 27,
2015, Plaintiff and her non-party husband were departing Newark Penn Station when Ayala
walked up to their vehicle and accused them of striking her automobile. Id. at 3, ¶ 3. Plaintiff
alleges that “[a]t no time did their vehicle make any contact with any other vehicle at or near
Newark Penn Station.” Id. Plaintiff and her husband then drove home. Id.
Thereafter, Ayala and her stepson Bruno appeared at the NJ Transit Police Department and
reported that “[P]laintiff’s vehicle had struck [Ayala’s] vehicle and left the scene and also that 
[P]laintiff pointed a handgun at [Ayala] and threatened to shoot her.” Id. at 4, ¶¶ 4, 6. Ayala
provided photographs that she had taken of Plaintiff’s vehicle and the license plate to Defendant
Officer Bernal (a police officer employed by Defendant NJ Transit) and Officer Bernal’s
supervisor, Sergeant Wells. Id. at ¶ 5. She also provided a written statement to Officer Bernal. Id.
at ¶ 7. Officer Bernal ran the license plate number of the vehicle, which Ayala had provided, and
showed Ayala Plaintiff’s driver’s license photo before Ayala had identified Plaintiff as the
perpetrator. Id. at ¶ 8. Based on this information, unnamed members of the NJ Transit Police
Department went to Plaintiff’s home and arrested her and her husband without a warrant. Id. at ¶
9. Plaintiff maintained her innocence and no weapon was ever recovered. Id. at 3, ¶ 3; id. at 5, ¶
Following the arrest, Officer Bernal brought Ayala to the scene to make an identification.
Id. at 4, ¶ 10. Plaintiff asserts that Bernal did not follow the proper protocol for an identification
by, for example, bringing out her and her husband in handcuffs. Id. at ¶ 11. At the scene, Ayala
identified Plaintiff as the person who had pointed a gun at her. Id. at 5, ¶ 12. On July 27, 2015,
Plaintiff was charged with aggravated assault, possession of a handgun used to threaten another,
possession of a handgun without a permit and obstruction of justice. Id. at ¶ 17. She was
transferred to the Essex County Jail the next day. Id. at ¶ 18. Initially, Plaintiff was unable to post
bail and she remained incarcerated at the Essex County Jail for forty-four days. Id. at ¶ 19. Bail
was subsequently reduced upon motion by Plaintiff. Id. at ¶ 20.
After bail was reduced, Plaintiff was released on her own recognizance on September 19,
2015 and was prosecuted for the next eighteen months. Id. at ¶¶ 20–21. On October 22, 2015, a
grand jury indicted Plaintiff on four counts: fourth degree aggravated assault, second degree
unlawful possession of a weapon, second-degree possession of a weapon for an unlawful purpose,
and fourth degree obstruction of the administration of law. ECF No. 10-4. Plaintiff subsequently
filed a motion to suppress an out-of-court and in-court identification. Compl. at 6, ¶ 22. On March
1, 2017, a Wade hearing on the motion to suppress was conducted, during which Bernal and Ayala
testified on behalf of the State. Id. Plaintiff’s motion to suppress was granted on March 6, 2017.
Id. at ¶ 23. The Complaint alleges that the state court found that: NJ Transit Police procedures
were flawed, Bernal’s testimony was not credible, the show-up identification was impermissibly
suggestive, the officers failed to properly record the identification, and the victim had limited
opportunity to observe the perpetrators. Id. at ¶ 23. On March 10, 2017, all charges against the
Plaintiff were dismissed by motion of the prosecutor. Id. at ¶ 24.
Plaintiff alleges that, as a result of the Defendants’ actions, in addition to being unjustly
detained, she suffered “emotional distress and anxiety; the loss of her employment and other
economic harm; and the temporary loss of custody of her sons.” Id. at ¶ 26.
b) Procedural Background
On June 5, 2019, Plaintiff filed the instant Complaint against the State Defendants, Ayala,
and Bruno. ECF No. 1-2. 2 The Complaint asserts seven causes of action: malicious prosecution
against all Defendants (Count I); Monell liability against the State Defendants (Count II);
violations of the New Jersey Civil Rights Act (the “NJCRA”), N.J.S.A. § 10:6-1, et seq. and the
New Jersey State Constitution, Article I, ¶¶ 5 & 7 against the State Defendants (Count III);
discrimination in violation of New Jersey’s Law Against Discrimination (the “NJLAD”), N.J.S.A.
§ 10:5-1, et seq. against the State Defendants (Count IV); abuse of process against Ayala and
Bruno (Count V); intentional and/or negligent infliction of emotional distress against all
Defendants (Count VI); and damages under New Jersey’s Punitive Damages Act, N.J.S.A. §
2A:15-5.9, et seq. against Officer Bernal, Sergeant Wells, Ayala, and Bruno (Count VII). Id.; ECF
On May 1, 2020, the parties entered a partial stipulation of dismissal; however, all counts remain
as to at least one defendant. ECF No. 30. The counts remaining as to NJ Transit are Counts I, II,
III, IV, and VI; the counts remaining as to Officer Bernal and Sergeant Wells are Counts I, II, III,
IV, VI, and VII; and the counts remaining as to Ayala and Bruno are Counts I, V, VI, and VII. See
id. The Court will not address any arguments in the instant motions to dismiss that correspond to
a dismissed claim, as they are rendered moot.
Each count was originally asserted against all Defendants but, after the partial stipulation of
dismissal (ECF 30), the counts are now limited to certain Defendants.
On October 30, 2019, Ayala filed the instant motion to dismiss arguing that Plaintiff has
failed to state a claim against her under Counts I, V, VI, and VII because there are insufficient
facts pleaded to support a cause of action for malicious prosecution, abuse of process, and
intentional or negligent infliction of emotional distress. ECF No. 9-1. On November 1, 2019, the
State Defendants filed the instant motion to dismiss arguing that Plaintiff has failed to state a claim
against them under Counts I, II, III, IV, VI, and VII because: (1) they are entitled to sovereign
immunity from the section 1983 and NJCRA claims (ECF No. 10-7 at 13–15; see ECF No. 13 at
2–3); (2) Sergeant Wells is entitled to qualified immunity from the section 1983 and NJCRA
claims (ECF No. 10-7 at 27–30); (3) the State Defendants are not amenable to suit under section
1983, Monell, and the NJCRA; (id. at 10–13, 15); (4) there are insufficient allegations to support
a cause of action for malicious prosecution or a violation of the NJCRA, the New Jersey state
Constitution, or the NJLAD (ECF No. 10-7 at 8–10, 15–18); and (5) Plaintiff did not file a notice
of tort claim under the New Jersey Tort Claims Act (the “NJTCA”), 4 which bars certain claims––
violation of the NJCRA, the New Jersey Constitution, and intentional and negligent infliction of
emotional distress––and punitive damages (id. at 20–27, 33).
On December 2, 2019, Plaintiff filed an opposition to Ayala’s and the State Defendants’
motions to dismiss, arguing that: (1) she has alleged sufficient facts to support a cause of action
for malicious prosecution (ECF No. 12 (“Opp.”) at 8–15); (2) the State Defendants are amenable
to suit under section 1983 and are not entitled to sovereign immunity (id. at 15–17); (3) qualified
immunity should be denied (id. at 17–18); and (4) Ayala’s and the State Defendants’ motions to
dismiss all remaining claims are premature (id. at 18). Plaintiff did not address the State
In New Jersey, any claim against a public entity or a public employee relating to a cause of action
for personal injury “shall be presented . . . not later than the 90th day after accrual of the cause of
action.” N.J. Stat. Ann. § 59:8-8 (“notice of tort claim”).
Defendants’ arguments with regard to the NJTCA’s requirement to file a notice of tort claim. See
generally id. On December 6, 2019, the State Defendants filed a reply in further support of their
motion to dismiss. ECF No. 13. 5
On August 27, 2020, the Court entered an Order to Show Cause directing Plaintiff to “show
cause as to why Counts I–II and VI–VII of the Complaint should not be dismissed as to the State
Defendants for failure to file a notice of tort claim.” ECF No. 36. Plaintiff conceded that she did
not file a notice of tort claim and that her negligent infliction of emotional distress claim under
Count VI should be dismissed as to the State Defendants. Id. at 1, 3. Plaintiff argued that her
malicious prosecution, section 1983, and intentional infliction of emotional distress claims are not
subject to the NJTCA’s notice requirements and likewise, punitive damages may be obtained
despite a failure to provide notice. Id. at 1–3.
For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6),
it “must 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all wellpleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of
the non-moving party. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).
“Factual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. “A pleading that offers ‘labels and conclusions . . . will not do.’ Nor
does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
On December 17, 2019, the Court entered an Order (ECF No. 15) granting Ayala’s request (ECF
No. 14) to adjourn her reply by thirty days and thus setting a deadline for the reply of January 15,
2020. Ayala did not file a reply thereafter.
Iqbal, 556 U.S. at 678 (citations omitted). However, “the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Thus, when reviewing complaints for failure to state a claim, district courts should engage in a
two-part analysis: “First, the factual and legal elements of a claim should be separated . . . .
Second, a District Court must then determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Fowler v. UPMC Shadyside,
578 F.3d 203, 210–11 (3d Cir. 2009) (citations omitted). 6
After considering the arguments for and against dismissal, the Court finds that the
Complaint fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).
a) Count I: Malicious Prosecution (asserted against all Defendants)
In Count I of the Complaint, Plaintiff alleges that all Defendants maliciously initiated a
criminal prosecution against her even though she “had not committed any infraction to legally
justify her arrest nor did there exist sufficient facts for a finding of probable cause.” Compl. at 7,
¶¶ 2–3, 5. Plaintiff specifically alleges that Officer Bernal and Sergeant Wells “acted under the
color of state law” and in “violation of [P]laintiff’s clearly established constitutional rights,”
which leads the Court to construe her malicious prosecution claim against the State Defendants as
a section 1983 claim. See id. at ¶ 6; 42 U.S.C. § 1983 (“Every person who, under color of [law]
subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party
When assessing a motion to dismiss under Rule 12(b)(6), this Court is limited to considering the
allegations in the complaint, exhibits attached to the complaint, matters of public record, and
indisputably authentic documents on which a plaintiff’s claims are based. Pension Benefit Guar.
Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).
injured.”); Woodyard v. Cty. of Essex, 514 Fed. Appx. 177, 180 (3d Cir. 2013) (claims of
constitutional violations against state actors must be brought pursuant to section 1983). Plaintiff’s
malicious prosecution claim against Ayala and Bruno is brought pursuant to New Jersey state
common law. Compl. at ¶ 7. For the reasons set forth below, Count I is dismissed.
1. Sovereign Immunity
First, the Court addresses the State Defendants’ argument that they are entitled to sovereign
immunity from the section 1983 claim. ECF No. 13 at 2–3. The Eleventh Amendment to the
United States Constitution provides: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. The Supreme Court has “extended the Eleventh Amendment’s reach to suits
by in-state plaintiffs, thereby barring all private suits against non-consenting States in federal
court.” Lombardo v. Pa., Dep’t of Pub. Welfare, 540 F.3d 190, 194 (3d Cir. 2008) (emphasis
omitted) (citing Hans v. Louisiana, 134 U.S. 1, 10 (1890)). The Eleventh Amendment also
immunizes “those entities that are so intertwined with [the state] as to render them ‘arms of the
state.’” Karns v. Shanahan, 879 F.3d 504, 512–13 (3d Cir. 2018) (citing Bowers v. Nat’l Collegiate
Athletic Ass’n, 475 F.3d 524, 545 (3d Cir. 2007), amended on reh’g (Mar. 8, 2007)). Courts
examine three factors to determine whether an entity is an ‘arm of the state’: “(1) whether the
payment of the judgment would come from the state; (2) what status the entity has under state law;
and (3) what degree of autonomy the entity has.” Bowers, 475 F.3d at 546.
In Karns, the Third Circuit analyzed these three factors to determine whether NJ Transit
qualified as an arm of the state for the purposes of sovereign immunity against a section 1983
claim. 879 F.3d at 513–20. The Karns court found that the first factor regarding payment of the
judgment did not favor finding sovereign immunity because New Jersey is under no obligation to
reimburse NJ Transit for its judgments and because NJ Transit “concede[d] that it is not entirely
reliant on state funds but rather that it receives a ‘combination of federal, state, and local funds’ to
balance its budget.” Id. at 516. However, the second factor, status under state law, “strongly
favor[ed]” finding sovereign immunity because NJ Transit is part of New Jersey’s executive
branch, “New Jersey’s statutes consider it an instrumentality of the State,” its transit officers are
vested with state police powers, and New Jersey state caselaw regards it as an agency of the state.
Id. at 517–18. For the third factor, “autonomy of the entity,” New Jersey’s “fairly ‘substantial
control’ over NJ Transit counseled in favor of according it Eleventh Amendment immunity.” Id.
at 518. After balancing the three factors, the Third Circuit held that NJ Transit qualified as an arm
of the state entitled to Eleventh Amendment immunity, which in turn functions as an absolute bar
to any section 1983 claims against NJ Transit and NJ Transit officers acting in their official
capacities. Karns, 879 F.3d at 519; see Kneisser v. McInerney, No. 15-07043, 2018 WL 1586033,
at *12 (D.N.J. Mar. 30, 2018).
Notwithstanding Karns, Plaintiff argues (Opp. at 15) that NJ Transit may not assert
sovereign immunity in this action in light of recent legislation referenced in Robinson v. New
Jersey Transit Rail Operations, Inc., 776 F. App’x 99, 100 (3d Cir. 2019). In Robinson, 776 F.
App’x at 100, the Third Circuit held that NJ Transit “may not assert sovereign immunity as a
defense to claims arising under certain federal statutes, including FELA [the Federal Employers’
Liability Act],” because of the passage of the New Jersey Transit Corporation Employee Protection
Act (the “NJ Transit Employee Act”), N.J. Stat. Ann. § 27:25-24.1, 24.2. The NJ Transit Employee
Act states that NJ Transit and its subsidiaries cannot assert “any defense of jurisdictional or
substantive sovereign immunity with respect to any claim or cause of action arising under the
‘Federal Employers’ Liability Act’ (45 U.S.C. s.51 et seq.), the ‘Railway Labor Act’ (45 U.S.C.
s.151 et seq.), the ‘Railroad Retirement Act of 1974’ (45 U.S.C. s.231 et seq.), the ‘Railroad
Retirement Tax Act’ (26 U.S.C. s.3201 et seq.), the ‘Railroad Unemployment Insurance Act’ (45
U.S.C. s.351 et seq.), the ‘Federal Railroad Safety Act’ (49 U.S.C. s.20101 et seq.), and 49 C.F.R.
parts 200-272.” N.J. Stat. Ann. § 27:25-24.2.
Plaintiff’s argument is unpersuasive. Unlike the plaintiff in Robinson, Plaintiff herein does
not assert any claims arising under the aforementioned statutes or regulations, and as such, the NJ
Transit Employee Act is inapplicable. See id.; Compl. Moreover, Plaintiff does not argue that NJ
Transit waived its sovereign immunity or consented to suit under section 1983. See Opp. at 12;
M.A. ex rel. E.S. v. State-Operated Sch. Dist. of City of Newark, 344 F.3d 335, 345 (3d Cir.
2003) (waiver of Eleventh Amendment immunity will be found “only where the state’s consent is
stated by the most express language or by such overwhelming implications from the text as [will]
leave no room for any other reasonable construction.”) (alteration in original) (internal quotation
marks omitted); see also Allen v. New Jersey State Police, 974 F.3d 497, 506 (3d Cir. 2020)
(finding that the NJTCA “does not constitute waiver of immunity from suit in federal court; the
statute reflects a limited waiver only of the State’s immunity from suit in state court”).
Accordingly, NJ Transit is entitled to sovereign immunity and any section 1983 claims against it
are dismissed. See Allen, 974 F.3d at 506 (affirming dismissal of malicious prosecution claim on
the basis of Eleventh Amendment immunity where state agency defendant was an arm of the state);
Karns, 879 F.3d at 519.
The same conclusion applies to the section 1983 claim against Officer Bernal and Sergeant
Wells to the extent that they are being sued in their official capacities as officers of NJ Transit. See
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in his
or her official capacity is not a suit against the official but rather is a suit against the official's
office. As such, it is no different from a suit against the State itself.”) (internal citation
omitted); Allen, 974 F.3d at 506; Karns, 879 F.3d at 519. However, because Plaintiff also brings
his section 1983 claims against Officer Bernal and Sergeant Wells in their individual capacities,
that portion of the claim may proceed. See Compl. at 2, ¶¶ 3–4 (alleging that Officer Bernal and
Sergeant Wells are being sued individually and in their official capacities).
2. Amenability to Suit Under Section 1983
Next, setting aside the issue of immunity, the Court will analyze whether the State
Defendants are amenable to suit under section 1983 and if so, whether Plaintiff has stated a claim
A plaintiff seeking relief under section 1983 must establish that the individual or entity who
committed the constitutional violation is a “person” for the purposes of section 1983. 42 U.S.C. §
1983; see Indep. Enters. Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1172 (3d Cir.
1997). “States or governmental entities that are considered ‘arms of the State’ for Eleventh
Amendment purposes” are not “persons” under section 1983. Will v. Mich. Dep’t of State Police,
491 U.S. 58, 70 (1989); see Howlett By & Through Howlett v. Rose, 496 U.S. 356, 365
(“Will establishes that the State and arms of the State, which have traditionally enjoyed Eleventh
Amendment immunity, are not subject to suit under § 1983 in either federal court or state court.”).
As discussed above, NJ Transit is an arm of the state. Therefore, it is not a “person” under section
1983 and is not amenable to suit. Karns, 879 F.3d at 519.
By contrast, the Court finds that Officer Bernal and Sergeant Wells are amenable to suit
under section 1983 in their individual capacities. An individual named as a defendant in
his personal capacity is amenable to suit as a “person.” Est. of Lagano v. Bergen Cty. Prosecutor's
Off., 769 F.3d 850, 856 (3d Cir. 2014). It does not matter that the individual is a government
See Karns, 879 F.3d at 519, n. 6 (“We emphasize that the Eleventh Amendment and §
1983 determinations are ‘analytically distinct,’ although sometimes overlapping) (quoting Estate
of Lagano v. Bergen Cty. Prosecutor's Office, 769 F.3d 850, 857 (3d Cir. 2014)).
official, or that the acts for which they are being sued are official acts, because their amenability
to suit flows solely from the personal capacity in which they are being sued. Hafer v. Melo, 502
U.S. 21, 27–28 (1991); Lagano, 769 F.3d at 856; Richardson v. New Jersey, No. 16-135, 2019 WL
6130870, at *5 (D.N.J. Nov. 18, 2019). Therefore, despite being state officials sued for their
official acts, Officer Bernal and Sergeant Wells are amenable to suit under section 1983 because
they are also being sued in their personal capacities. See Compl. at 2, ¶¶ 3–4; Lagano, 769 F.3d at
856; Richardson, 2019 WL 6130870, at *5.
3. Prima Facie Elements of a Malicious Prosecution Claim
Having concluded that Defendants Officer Bernal and Sergeant Wells are amenable to suit
under section 1983 in their personal capacities, the Court must next determine whether the
for malicious prosecution brought under section 1983, a plaintiff must allege that:
defendant initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff’s favor;
(3) the proceeding was initiated without probable cause; (4) the defendant acted maliciously or for
a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of
liberty consistent with the concept of seizure as a consequence of a legal proceeding.” Kossler v.
Crisanti, 564 F.3d 181. 186 (3d Cir. 2009) (en banc) (internal quotation marks omitted). The first
four elements listed above also comprise the New Jersey common law tort of malicious
prosecution. Allen v. N.J. State Police, No. 16-1660, 2017 WL 5714707, at *6 (D.N.J. Nov. 28,
2017); Wilson v. N.J. State Police, No. 04–1523, 2006 WL 2358349, at *9 (D.N.J. Aug. 15, 2006).
Here, Plaintiff’s section 1983 and common law malicious prosecution claims must be dismissed
because she has failed to meet the third element.8
The State Defendants and Ayala do not appear to contest that the first two elements of a malicious
prosecution claim are satisfied here, as Plaintiff has alleged that Officer Bernal, Sergeant Wells,
For the third element of both a section 1983 and common law action for malicious
prosecution, a grand jury indictment constitutes prima facie evidence of probable cause. Rose v.
Bartle, 871 F.2d 331, 352 (3d Cir. 1989). This presumption of probable cause can be overcome
only if the plaintiff sufficiently alleges that the indictment was procured by “fraud, perjury or other
corrupt means.” Id.; see Mobilio v. Dep’t of L. & Pub. Safety of New Jersey, No. 07-3945, 2008
WL 2704826 (D.N.J. July 7, 2008) (applying Rose standard to malicious prosecution claims under
both § 1983 and New Jersey common law). In Rose, the Third Circuit affirmed a Rule 12(b)(6)
dismissal of the plaintiff’s section 1983 malicious prosecution claim, even though the plaintiff
alleged that the defendants committed perjury in connection with the grand jury indictment,
because he did not allege any specific instances of witnesses perjuring themselves or any
substantive perjured testimony. Id. at 353–54.
Therefore, under Rose, to overcome the
presumption of probable cause at the motion to dismiss stage, a plaintiff must allege “specific
instances of fraud, perjury, or corrupt means to procure the grand jury indictment.” Liberty Bell
Temple III v. Trenton City Police Dep’t, No. 16-1339, 2019 WL 4750836, at *22 (D.N.J. Sept. 30,
2019) (dismissing plaintiff’s malicious prosecution claim despite allegations that the purpose of
his charges was to silence his voice and close his business because the allegations did not “rise to
the level of plausibly asserting corruption or fraud in the grand jury presentment”). 9
Here, Plaintiff concedes that her indictment by a federal grand jury creates a presumption
of probable cause. Opp. at 12–13. Although Plaintiff alleges improprieties with regard to the
and NJ Transit initiated a criminal proceeding against her and that the charges were subsequently
dropped. See ECF No. 9-1 at 4; ECF No. 10-7 at 8–10.
See also Mobilio, 2008 WL 2704826, at *5 (plaintiff’s allegations that defendant police office
“fabricated and suppressed evidence in order to obtain an arrest warrant and initiate a criminal
proceeding against [the] [p]laintiff” were sufficient to overcome presumption of probable cause
afforded by grand jury indictment).
investigation initiated against her (see Compl. at 4, ¶¶ 8, 11) and argues that the probable cause
for arrest was based on allegedly flawed investigatory procedures (Opp. at 12–13), she does not
allege any specific instances of fraud, perjury, or corruption in the grand jury presentment (see
generally Compl.). Thus, Plaintiff has failed to rebut the prima facie presumption of probable
cause established by the indictment and failed to satisfy the third element. See Rose, 871 F.2d at
352–54; Liberty Bell Temple III, 2019 WL 4750836, at *22; Falat v. Cty. of Hunterdon, No. A2479-15T1, 2018 WL 3554139 (N.J. Super. Ct. App. Div. July 25, 2018) (affirming dismissal of
common law malicious prosecution for failure to state a claim because plaintiff did not
demonstrate a lack of probable cause sufficient to overcome the grand jury indictment)
Accordingly, Count I is dismissed as to Ayala, Bruno, 10 and the State Defendants. See
Liberty Bell Temple III, 2019 WL 4750836, at *22; Falat, 2018 WL 3554139. 11
The Court sua sponte dismisses Count II as to Bruno because the allegations against him are
substantially similar to the allegations against Ayala, dismissal involves the same legal theory, and
Plaintiff has had the opportunity to address the deficiency of her pleading in her opposition to the
motions to dismiss. See Roman v. Jeffes, 904 F.2d 192, 196 (3d Cir. 1990) (stating that “there are
times when a court may sua sponte raise the issue of the deficiency of a pleading under 12(b)(6)
provided that the litigant has had the opportunity to address the issue either orally or in writing”);
Seawright v. Greenberg, No. 05-2751, 2005 WL 2877712, at *4 (E.D. Pa. Nov. 2, 2005), aff’d, 233
F. App’x 145 (3d Cir. 2007) (sua sponte dismissing complaint against “[a]ll [d]efendants who have
failed to respond [to the complaint]” because the same legal theory applied to them as raised in
other defendants’ motion to dismiss); Corporate Aviation Concepts, Inc. v. Multi-Service Aviation
Corp., No. 03-3020, 2004 U.S. Dist. LEXIS 17154, at *2 n. 1 (E.D. Pa. Aug. 25, 2004)
(sua sponte dismissing a counterclaim where a defendant counterclaimed against two plaintiffs,
only one plaintiff moved to dismiss the counterclaim, and both counterclaims involved
the same factual allegations, the same parties, and the same legal theories).
As the Court finds a lack of probable cause here, it need not address Ayala’s secondary argument
that the malicious prosecution claim asserted against her must be dismissed because the fourth
factor for a malicious prosecution is not satisfied. ECF No. 9-1 at 4; see Lind v. Schmid, 67 N.J.
255, 262 (1975) (the “essence of the [malicious prosecution] cause of action is lack of probable
b) Count II: Monell Liability (asserted against the State Defendants)
In Count II, Plaintiff asserts that the State Defendants are subject to Monell liability 12 under
section 1983 because NJ Transit, through its police department, developed and maintained
practices that were indifferent to the protection of constitutional rights, and which caused a
violation of Plaintiff’s constitutional rights. Compl. at 8, ¶ 2. Specifically, Plaintiff alleges that NJ
Transit “failed to adequately and properly supervise and train its employees in various aspects of
law enforcement, criminal procedure and substance,” and condoned the violation of civil rights.
Id. at ¶¶ 3–4.
First, the Court dismisses Count II as to Officer Bernal and Sergeant Wells because only
government entities are subject to Monell liability. See Widmaier v. City of Newark, No. 16-2533,
2019 WL 1895087, at *4 (D.N.J. Apr. 29, 2019) (dismissing with prejudice Monell claim against
individual defendants because “Monell liability . . . pertains to government entities not
individuals.”) (citing A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d
Cir. 2004)). Secondly, the Court dismisses Count II as to NJ Transit because, as explained supra
Section III(a), it is entitled to sovereign immunity against section 1983 claims and is not amenable
to suit under section 1983.
c) Count III: Violation of the New Jersey Civil Rights Act and the New Jersey
Constitution (asserted against the State Defendants)
In Count III, Plaintiff asserts a violation of the NJCRA and Article I, paragraphs 5 and 7
of the New Jersey Constitution. Compl. at 9. She specifically alleges a deprivation of her
substantive due process and equal protection rights based on the alleged malicious prosecution
against her. Id. at ¶¶ 1–6. The New Jersey Constitution, Article 1, ¶ 5 states in relevant part, “No
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) governs the liability of municipalities under
person shall be . . . discriminated against in the exercise of any civil or military right, . . . because
of religious principles, race, color, ancestry or national origin.” The New Jersey Constitution,
Article 1, ¶ 7 states in relevant part, “The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated . . .” The
NJCRA, in turn, provides a cause of action for violations of civil rights secured under federal and
state law; it was modeled after, and is analogous to, section 1983. Pettit v. New Jersey, No. 093735, 2011 WL 1325614, at *3 (D.N.J. Mar. 30, 2011). Thus, courts often analyze the sufficiency
of the NJCRA and New Jersey constitutional claims––particularly malicious prosecution claims
brought under those provisions––through the same lens as a section 1983 claim. See Coles v.
Carlini, 162 F. Supp. 3d 380, 404 (D.N.J. 2015); Lucia v. Carroll, No. 12-3787, 2014 WL
1767527, at *5 (D.N.J. May 2, 2014) (finding that the analysis for plaintiff’s N.J. Const. art. I ¶ 7
malicious prosecution claim was the same as the section 1983 claims); Chapman v. New Jersey,
No. 08-4130, 2009 WL 2634888, *3 (D.N.J. Aug. 25, 2009) (“Courts have repeatedly construed
the NJCRA in terms nearly identical to its federal counterpart”).
Accordingly, because the Court has dismissed Plaintiff’s malicious prosecution claim
under section 1983, see supra Section III(a), the Court will dismiss Plaintiff’s malicious
prosecution claim under the NJCRA and N.J. Const. art. I ¶¶ 5, 7 for the same reasons. See Carter
v. Red Bank Borough, No. 18-13537, 2019 WL 6699456, at *2 (D.N.J. Dec. 9, 2019) (“Even if
Plaintiff brings his claim under the NJCRA, the Court reaches the same decision to dismiss
Plaintiff’s malicious prosecution claim [as] Courts in this district have construed and interpreted
the NJCRA analogously to § 1983.”); Lucia v. Carroll, No. 12–3787, 2014 WL 1767527, at *3–5
(D.N.J. May 2, 2014) (granting dismissal in defendant officer’s favor on section 1983 malicious
prosecution claim on the grounds that officer had probable cause to arrest and holding that because
the analysis for plaintiff's corresponding claims under N.J. Const. art. I ¶ 7 and the NJCRA would
be the same, the officer was entitled to dismissal on those claims as well); Monroe v. City of
Hoboken, No. 11–2556, 2012 WL 1191177, at *11 (D.N.J. Apr. 10, 2012) (noting that “the Court’s
analysis on the § 1983 claims applies to plaintiff’s claims under the NJCRA” and dismissing
plaintiff’s malicious prosecution claims). 13
d) Count IV: New Jersey Law Against Discrimination (asserted against the State
In Count IV, Plaintiff asserts that the State Defendants violated the NJLAD, which
prohibits discrimination in a place of public accommodation. Specifically, the NJLAD makes it
unlawful “[f]or any owner, lessee, proprietor, manager, superintendent, agent, or employee of any
place of public accommodation directly or indirectly to refuse, withhold from or deny to any person
any of the accommodations, advantages, facilities or privileges thereof, or to discriminate against
any person in the furnishing thereof . . . on account of the race . . . of such person . . .” N.J. Stat.
Ann. § 10:5-12(f)(1). “To state a claim under the NJLAD for discrimination by a place of public
accommodation, a Plaintiff must, (1) ‘demonstrate that she is a member of a protected class’; (2)
must ‘show that the defendant’s actions were motivated by discrimination’; and (3) must
demonstrate that ‘others not within the protected class did not suffer similar adverse . . . actions.’”
Florentino v. City of Newark, No. 19-21055, 2020 WL 5105291, at *14 (D.N.J. Aug. 31, 2020)
The State Defendants also argue that a claim for malicious prosecution under New Jersey law
must be brought under common law, meaning it is not a violation of the NJCRA or the New Jersey
Constitution. ECF No. 10-7 at 20–27. However, the State Defendants have cited only one state
court case in support of this proposition, Falat v. Cty. of Hunterdon, which is not compelling
because the plaintiffs therein conceded to dismissal of their NJCRA malicious prosecution claim.
No. A-2479-15T1, 2018 N.J. Super. Unpub. LEXIS 1784, *17–*18 (N.J. Super. Ct. App. Div. Jul.
25, 2018). Furthermore, Sergeant Wells argues that, even if there were a violation of Plaintiff’s
constitutional rights, all section 1983 and NJCRA claims against him must be dismissed on the
basis of qualified immunity. ECF No. 10-7 at 27–30. The Court need not reach this alternative
argument because both the section 1983 and NJCRA claims are being dismissed for failure to state
a claim. See Jones v. Walsh, No. 15-2629, 2018 WL 1203472, at *6 (D.N.J. Mar. 8, 2018) (“As
all claims are being dismissed for failure to state a claim, the Court need not reach [the
defendant]’s arguments regarding qualified immunity.”).
(quoting Partovi v. Felician Coll., No. A-1961-09T1, 2011 WL 867275, at *7–8 (N.J. Super. Ct.
App. Div. Mar. 15, 2011)). Plaintiff has demonstrated that she is a member of a protected class
by alleging that she is African-American. Compl. at 2, ¶ 1. However, she has failed to satisfy the
second and third elements.
To meet the second element, Plaintiff must allege facts sufficient to create an inference that
the State Defendants’ actions were motivated by racial discrimination. See Leanne Wright-Phillips,
2021 WL 1221111, at *12 (Black plaintiff’s allegations that defendant flight attendant refused to
provide routine medical care to him despite caring for a white passenger, created a hostile
environment on-board, and held animus against Plaintiff, sufficed to meet the third element
because a “reader of the  [c]omplaint could plausibly infer that this refusal [to provide medical
care] was racially motivated”).
Conclusory allegations of discrimination are insufficient.
Florentino v. City of Newark, 2020 WL 5105291, at *14 (plaintiff’s allegations that she was
unlawfully arrested because of her protected status and that the defendant officers taunted her with
political comments were “too conclusory to sustain a claim for discrimination”); Partovi v.
Felician Coll., No. A-1961-09T1, 2011 WL 867275, at *7–8 (N.J. Super. Ct. App. Div. Mar. 15,
Here, Plaintiff makes only one conclusory allegation of discrimination—that the State
Defendants arrested her “without any basis for probable cause and then maliciously prosecut[ed]
her, due solely to her race or national origin.” Compl. at 10, ¶ 4. However, Plaintiff does not allege
any facts to support her assertion that Officer Wells, Sergeant Bernal, or any other NJ Transit
police officer, investigated or prosecuted Plaintiff based on her race or national origin. Rather,
Plaintiff alleges that Officer Wells and Sergeant Bernal initiated their investigation based on the
allegedly false reports provided by Ayala and Bruno, which indicated that Plaintiff had hit Ayala’s
vehicle, threatened Ayala with a handgun, and then fled the scene. Compl. at 4, ¶¶ 4–7. Moreover,
in her opposition, Plaintiff does not address the State Defendants’ argument that her sole
conclusory allegation of discrimination is insufficient to survive Rule 12(b)(6). See Opp.
Therefore, Plaintiff has failed to satisfy the second element. See Florentino, 2020 WL 5105291, at
Plaintiff has also failed to meet the third element, as she has not alleged sufficient facts to
indicate that others outside of her protected class received different treatment. Accordingly,
Plaintiff’s NJLAD claim for discrimination by a place of public accommodation (Count IV) is
dismissed as to the State Defendants. See Florentino v. City of Newark, 2020 WL 5105291, at *14;
Partovi, 2011 WL 867275, at *8 (affirming dismissal of plaintiffs’ NJLAD claim, in part because
they “did not allege any facts that indicate that [an individual plaintiff] was treated differently than
other students based on her national origin or any other protected characteristic.”).
e) Count V: Abuse of Process (asserted against Ayala and Bruno)
In Count V, Plaintiff alleges that Ayala and Bruno improperly abused the legal process “for
an ulterior motive not contemplated by law.” Compl. at 10, ¶ 3. Because Plaintiff does not provide
any citations to federal law and does not dispute Ayala’s classification of the claim as being
brought under common law, the Court construes her abuse of process claim under New Jersey
common law. See No. 9-1 at 7–8 (State Defendants argue that Plaintiff’s claim for malicious abuse
of process should be dismissed as a common law claim); Opp. at 18 (Plaintiff argues that various
causes of action, including Count V, survive dismissal because they are sufficiently pleaded,
without contesting the State Defendants’ classification of said claim).
Common law malicious abuse of process claims seek to hold a defendant liable for “the
improper, unwarranted, and perverted use of process after it has been issued . . .” Ash v. Cohn, 194
A. 174, 176 (N.J. 1937). “A successful malicious abuse of process claim requires a [p]laintiff to
demonstrate ‘(1) that defendants made an improper, illegal, and perverted use of the process, i.e.,
a use neither warranted nor authorized by the process; and (2) that in use of such a process there
existed an ulterior motive.’” Cluver v. Borough of Sayreville, No. 10-3173, 2013 WL 394030, at
*8 (D.N.J. Jan. 30, 2013), aff’d, 557 F. App’x 180 (3d Cir. 2014) (quoting Ash, 194 A. 176).
Special concern is directed to whether the defendant engaged in acts following the issuance of
process, which indicate the existence of an ulterior motive. Cluver, 2013 WL 394030, at *8;
Melillo v. Elizabeth Bd. of Educ., No. 11-4887, 2012 WL 6725837, at *7 (D.N.J. Dec. 27, 2012);
see Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 431–32 (App. Div. 2009) (noting that
a court’s “focus must not be on what prompted the suit but what action [the alleged wrongdoer]
engaged in after commencement of the action”).14 In the context of a criminal prosecution, the
issuance of process is the arrest of the plaintiff-victim. See Cluver, 2013 WL 394030, at *8.
Here, Plaintiff has failed to state a claim for common law abuse of process. While Plaintiff
makes the conclusory allegation that Ayala and Bruno acted with an ulterior motive, she neither
explains what the ulterior motive was nor alleges any specific instances following Plaintiff’s arrest
that could lead the Court to infer that Ayala or Bruno acted with an ulterior motive. 15 See
Morisseau v. Borough of N. Arlington, No. 16-837, 2018 WL 1522731, at *17 (D.N.J. Mar. 28,
2018) (dismissing malicious prosecution claim because plaintiff’s only allegations of wrongdoing
For example, in Cluver, the court dismissed the malicious abuse of prosecution claim against
the defendant detective at summary judgment because the only allegation concerning post-arrest
conduct was that the detective engaged in an improper line of questioning, but there was nothing
in the interrogation transcript “to indicate that [the d]etective  maliciously abused process or was
motivated by an ulterior motive during his interrogation.” 2013 WL 394030, at *8.
By contrast, in Melilo v. Elizabeth Board of Education, the plaintiff’s malicious prosecution
claim survived dismissal because: (1) plaintiff alleged that the defendant employer’s coercive
ulterior motives were to make the plaintiff’s underlying litigation more expensive and to prevent
his employment; and (2) plaintiff specifically alleged that, after the issuance of process, defendants
engaged in five, distinct acts––including protracting the litigation against him, blocking his
admission into criminal pre-trial intervention, attempting to undo his expungement, and filing a
complaint with the Division of Youth and Family Services despite his expungement––that
supported these ulterior motives. 2012 WL 6725837, at *7.
after the issuance of process constituted legitimate efforts to enforce a legal eviction). Plaintiff’s
sole allegation of specific conduct by Ayala and Bruno following Plaintiff’s arrest is that they
testified at a Wade hearing on behalf of the State on March 1, 2017. Compl. at 6, ¶ 22. However,
Plaintiff does not allege that Ayala or Bruno lied during their testimony, or otherwise acted in a
way suggestive of ulterior motive. See id. Ayala and Bruno’s participation as witnesses in a
criminal proceeding is not itself indicative of any ulterior motive, and is insufficient to support an
abuse of process claim. Cluver, 2013 WL 394030, at *8. Therefore, Plaintiff has failed to allege
an abuse of process claim against Ayala or Bruno, 16 and Count V is dismissed. See Pierre v.
Treasury Dep’t, No. 18-3443, 2018 WL 5801549, at *9 (D.N.J. Nov. 5, 2018) (dismissing abuse
of process claim because the plaintiff did “not set forth any facts showing that the . . .
[d]efendants intentionally withheld information or elicited evidence that they knew to be false”)
(emphasis added); Morisseau, 2018 WL 1522731, at *17.
f) Count VI: Negligent and Intentional Infliction of Emotional Distress (asserted
against all Defendants)
In Count VI, Plaintiff asserts a negligent and intentional infliction of emotional distress
claim against the State Defendants, Ayala, and Bruno, based on the allegedly unlawful charging
and malicious prosecution of Plaintiff. Compl. at 11, ¶ 2. Count VI is dismissed as to the State
Defendants because Plaintiff has failed to file a notice of tort claim, and it is dismissed as to Ayala
and Bruno because Plaintiff has not asserted sufficiently severe injury or distress as a result of their
To assert a cause of action in tort against a public entity or its employees, a plaintiff must
submit a notice of claim to the public entity within ninety days of the claim’s accrual; otherwise
the claim is time-barred. Velez v. City of Jersey City, 180 N.J. 284, 290 (2004) (citing N.J.S.A. §
The Court sua sponte dismisses Count V as to Bruno for the reasons stated supra n. 10.
59:8-8(a)). 17 Plaintiff concedes that she has failed to file a notice of tort claim and that her
negligent infliction of emotional distress claim against the State Defendants should be dismissed
on this basis. ECF No. 36 at 1–3. Thus, the Court dismisses the negligent infliction of emotional
distress claim as to the State Defendants.
Plaintiff argues against the dismissal of her intentional infliction of emotional distress
claim by incorrectly asserting that, under N.J.S.A. § 59:3-14, intentional torts are excluded from
the NJTCA’s notice requirement.18 ECF No. 37 at 3. In Velez, the New Jersey Supreme Court
explicitly held that, despite N.J.S.A. § 59:3-14, the NJTCA’s notice requirements apply to
intentional torts. 180 N.J. at 294 (2004) (finding that N.J.S.A 59:3-14 “must be read together with
the overall mandate of N.J.S.A. 59:8-3, that ‘[n]o action shall be brought against a public entity or
public employee under this [A]ct unless the claim [is] . . . presented in accordance with the
procedure set forth in this [Act].”). Therefore, Plaintiff is still required to comply with the notice
requirements of the NJTCA when asserting an intentional infliction of emotional distress claim
against a state entity or public employee. See Gillespie v. Janey, No. 09-885, 2010 WL 777954, at
*5 (D.N.J. Mar. 5, 2010), aff’d, 441 Fed. App’x 890 (3d Cir. 2011) (“A plaintiff seeking to file a
common law intentional tort action against a public entity or public employee must submit a notice
of claim to the public entity within ninety days of accrual of the claim.”); Van v. Borough of N.
Haledon, No. 05-5595, 2009 WL 1811727, at *13 (D.N.J. June 22, 2009) (“Pursuant to Velez,
NJTCA § 59:8-8(a) specifically states that “[a] claim relating to a cause of action for death or
for injury or damage to person or property shall be presented as provided in this chapter not later
than the 90th day after accrual of the cause of action. . . . The claimant shall be forever barred from
recovering against a public entity or public employee if: (a) The claimant failed to file the claim
with the public entity within 90 days of accrual of the claim.”
§ 59:3-14 states: “[n]othing in this act shall exonerate a public employee from liability if it is
established that his conduct was outside the scope of his employment or constituted a crime, actual
fraud, actual malice or willful misconduct.”
however, the [NJ]TCA notice provisions apply both to negligent and intentional conduct, including
actions allegedly outside the scope of employment.”). Accordingly, because Plaintiff has failed to
comply with § 59:8-8(a)’s notice requirement, the intentional infliction of emotional distress claim
against the State Defendants is also dismissed. See Velez v. Fuentes, No. 15-6939, 2016 WL
4107689, at *6 (D.N.J. July 29, 2016) (dismissing tort claims against public entity with prejudice,
including intentional infliction of emotional distress claim, for failure to comply with § 59:8-8(a)).
With regard to the intentional infliction of emotional distress claim against Ayala and
Bruno, Plaintiff’s claim fails for a different reason. “To establish a claim for intentional infliction
of emotional distress, a plaintiff is required to establish: (1) that the defendants acted intentionally
or recklessly, both in doing the act and in producing emotional distress; (2) that the defendants’
conduct was so outrageous in character and extreme in degree as to go beyond all bounds of
decency; (3) that the defendants’ action were the proximate cause of the emotional distress; and
(4) that the emotional distress suffered was so severe that no reasonable person could be expected
to endure it.” Mardini v. Viking Freight, Inc., 92 F. Supp. 2d 378, 384 (D.N.J. 1999) (citing Buckley
v. Trenton Sav. Fund Soc’y, 111 N.J. 355, 366 (1988)). Under New Jersey Law, to satisfy the
fourth element, in addition to alleging severe distress, plaintiffs must assert that they suffered from
a specific ailment and sought treatment for it. Botts v. The New York Times Co., No. 03-1582, 2003
WL 23162315, at *9 (D.N.J. Aug. 29, 2003) (collecting cases) (granting 12(b)(6) motion to dismiss
because plaintiffs did “not allege that they have sought medical treatment for their distress”).19
Compare Mardini, 92 F. Supp. 2d at 385 (granting 12(b)(6) motion to dismiss intentional
infliction of emotional distress claim, noting that the plaintiff had “not alleged that she had to seek
medical assistance, or that any specific ailment afflicted her”); Harris v. Middlesex County
Coll., 353 N.J. Super. 31, 45–46 (App. Div. 2002) (affirming dismissal of intentional infliction of
emotional distress claim where plaintiff did not allege need for psychiatric counseling); Aly v.
Garcia, 333 N.J. Super. 195, 204–05 (App. Div. 2000) (intentional infliction of emotional distress
claim should be dismissed where no evidence that plaintiffs sought medical treatment for alleged
distress) with Maxon v. YRC Inc., No. 14–4653, 2015 WL 4394272, at *6–7 (D.N.J. July 6, 2015)
Here, Plaintiff alleges that she suffered “emotional distress and anxiety” as a result of the alleged
malicious prosecution against her, but she has not alleged that she sought any medical treatment.
See Compl. at 6, ¶ 26. Therefore, Plaintiff’s intentional infliction of emotional distress claim
against Ayala and Bruno is dismissed. See Botts, 2003 WL 23162315, at *9; Aly, 333 N.J. Super.
Next, regarding Plaintiff’s negligent infliction of emotional distress claim, the applicable
standard is as follows:
Under New Jersey law, there are two legal theories under which a plaintiff can establish
a prima facie claim for negligent infliction of emotional distress. First, a plaintiff can show:
1) “death or serious physical injury of another caused by defendant’s negligence; 2) a
marital or intimate family relationship between plaintiff and the injured person; 3)
observation of the death or injury at the scene of the accident; and 4) resulting severe
emotional distress.” Fleming v. United Parcel Serv., Inc., 255 N.J. Super. 108, 166 (Law.
Div. 1992). Second, a plaintiff can show “the defendant’s negligent conduct placed the
plaintiff in ‘reasonable fear of immediate personal injury’ which gave rise to emotional
distress that resulted in a substantial bodily injury or sickness.” Jablonowska v. Suther, 195
N.J. 91, 103 (2008).
Van Tassel v. Ocean Cty., No. 16-4761, 2017 WL 5565208, at *9 (D.N.J. Nov. 17, 2017). Plaintiff
fails under the first theory because there is no indication that Ayala or Bruno caused the death or
serious physical injury of another. See id.; Fleming, 255 N.J. Super. at 166; Compl. Plaintiff fails
under the second theory because there is no indication that she was placed in fear of immediate
personal injury. See Van Tassel, 2017 WL 5565208, at *9; Jablonowska, 195 N.J. at 103.
Therefore, Plaintiff has failed to state a claim for negligent infliction of emotional distress against
Ayala or Bruno, and the claim will be dismissed. See Van Tassel, 2017 WL 5565208, at *9.
(denying 12(b)(6) motion to dismiss, noting the plaintiff alleged suffering from stress, anxiety,
recurring nightmares, had a heart attack, and underwent psychological counseling); Flammer v.
Cty. of Morris, No. 05–5039, 2006 WL 1307679, at *4 (D.N.J. May 10, 2006) (denying 12(b)(6)
motion to dismiss, noting the plaintiff alleged “that [the defendant’s] conduct caused him to seek
medical attention and resulted in him being prescribed medication for anxiety”).
Accordingly, Count VI is dismissed as to the State Defendants, Ayala and Bruno. 20
g) Count VII: Punitive Damages (asserted against Officer Bernal, Sergeant Wells,
Ayala, and Bruno)
In Count VII (Compl. at 11), Plaintiff attempts to assert a standalone cause of action
for punitive damages under the Punitive Damages Act, N.J.S.A. § 2A:15-5.98. However,
“[p]unitive damages are a remedy incidental to [a] cause of action, not a substantive cause of action
in and of themselves.” Hassoun v. Cimmino, 126 F. Supp. 2d 353, 372 (D.N.J. 2000); see also N.J.
Stat. Ann. § 2A:15–5.13(c) (providing that punitive damages may be awarded under New Jersey
law only if compensatory damages have been awarded). Accordingly, the Court dismisses Count
VII for punitive damages because Plaintiff improperly asserts her request for punitive damages as
a separate cause of action. See Onyejekwe v. Uber Techs., Inc., No. 19-10196, 2020 WL 2832566,
at *3 (D.N.J. June 1, 2020) (dismissing standalone claim for punitive damages without prejudice
because it is not cognizable); Smith v. Covidien LP, No. 19-11981, 2019 WL 7374793, at *10
(D.N.J. Dec. 31, 2019) (dismissing punitive damages claim because a standalone cause of action
for punitive damages is not cognizable, and disregarding the defendant’s argument that plaintiff
insufficiently pled conduct to warrant such damages).
For the foregoing reasons, Ayala’s (ECF No. 9) and the State Defendants’ motions to
dismiss (ECF No. 10) are granted, and the Complaint (ECF No. 1-2) is dismissed. To the extent
that Plaintiff can cure any of the pleading deficiencies discussed herein, she may file an amended
complaint within thirty (30) days of the date of this Opinion.
An appropriate Order follows this Opinion.
The Court sua sponte dismisses Count VI as to Bruno for the reasons stated supra n. 10.
Date: April 28, 2021
HON. CLAIRE C. CECCHI, U.S.D.J.
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