ABDUL-AHAD v. ESSEX COUNTY SHERIFF DEPARTMENT
OPINION. Signed by Judge John Michael Vazquez on 9/7/2021. (sm)
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Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PROSEQUENDUM of the ESTATE OF
PAUL O. BRASWELL, and HORACE L.
Civil Action No. 20-15602
ESSEX COUNTY SHERIFF’S
DEPARTMENT, et al.,
John Michael Vazquez, U.S.D.J.
This matter comes before the Court by way of partial motions to dismiss filed by the
following Defendants: (1) Essex County Sheriff Department, D.E. 6; (2) Detective Ozie Ryals,
Detective Gino Izzo, Sgt. Christopher Bozios, Jr., Detective Edgar J. Silverio, Detective Yusef
Ellis, and Detective Erik Udvarhely (collectively, the “County of Essex Defendants”), D.E. 14;
and (3) Det. Jose Yunque and Sgt. Emanuel Periera, D.E. 21. On May 19, 2021, Defendant Officer
Abdullah Holmes filed a letter stating that he joins in the motion filed by the County of Essex
Defendants and relies on their motion papers.1 D.E. 15. Plaintiffs filed a brief in opposition to the
The Court notes that Defendant Holmes did not file his request as a motion, which is required by
the Federal Rules of Civil Procedure and the Local Civil Rules. See Fed. R. Civ. P. 7(b) (stating
that “[a] request for a court order must be made by motion”); L. Civ. R. 7.1 (setting forth motion
practice requirements for “all motions, regardless of their complexity and the relief sought”). But
because Holmes’ basis for dismissal is premised on identical arguments as the other Defendants
in this matter, the Court will construe Holmes’ request as a separately filed motion. Going forward,
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Essex County Sheriff Department and the County of Essex Defendants’ motions, D.E. 16, to which
these Defendants filed briefs in reply, D.E. 18, 19.2 With respect to Defendants Yunque and
Periera’s motion to dismiss, Plaintiffs filed a letter explaining that they were relying on the same
arguments advanced in their previously filed opposition brief. D.E. 22. The Court reviewed the
parties’ submissions and decided the motions without oral argument pursuant to Fed. R. Civ. P.
78(b) and L. Civ. R. 78.1(b). For the reasons set forth below, Defendants’ motions are GRANTED
in part and DENIED in part.
FACTUAL AND PROCEDURAL BACKGROUND
On or about September 26, 2018, Paul O. Braswell was a passenger in a vehicle in Newark,
New Jersey.3 Compl. ¶ 7. Plaintiffs contend that Braswell was not engaged in any criminal activity
at the time and did not possess any illegal contraband or weapons. Id. ¶ 10. Unknown individuals
approached the car Braswell was riding in “with what appeared to be firearms” and the driver of
the vehicle attempted to evade the unknown individuals. Id. ¶ 8. The driver struck several vehicles
and a tree, rendering the car “inoperable.” Id. ¶¶ 8, 11. The individuals with firearms opened fire
however, if Holmes seeks any relief that is ordinarily decided through a motion, Holmes may not
file a letter requesting such relief.
The Essex County Sheriff Department’s brief in support of its motion (D.E. 6) will be referred to
as “Sheriff Br.”; the County of Essex Defendants’ brief in support of their motion (D.E. 14-1) will
be referred to as “Cnty. Br..”; Periera and Yunque’s brief in support of their motion (D.E. 21-5)
will be referred to as “Periera Br.”; Plaintiffs’ opposition brief (D.E. 16) will be referred to as
“Plfs. Opp.”; the Essex County Sheriff Department’s reply brief (D.E. 19) will be referred to as
“Sheriff Reply”; and the County of Essex Defendants’ reply brief (D.E. 18) will be referred to as
The factual background is taken from Plaintiffs’ Complaint (the “Compl”). D.E. 1. When
reviewing a motion to dismiss, a court accepts as true all well-pleaded facts in the complaint.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
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on the vehicle. The individuals were plainclothes police officers and the Officer Defendants4 in
this matter. The Officer Defendants discharged seventy-two bullets into the car, and Braswell was
struck. Id. ¶¶ 11-13. Braswell and the driver of the vehicle did not “discharge any firearms nor
take any other action directed at or towards the police.” Id. ¶ 13. After Defendants discharged
their weapons into the vehicle, Defendants did not provide or attempt to provide Braswell with
medical aid or attention for hours. Braswell subsequently died from the gunshot wounds. Id. ¶¶
Plaintiffs filed their Complaint in New Jersey state court, which was removed to this Court
by the Essex County Sheriff Department on November 6, 2020. D.E. 1. In the Complaint,
Plaintiffs assert claims pursuant to 42 U.S.C. § 1983 and the New Jersey Civil Rights Act
(“NJCRA”), N.J. Stat. Ann. § 10:6-2. Specifically, Plaintiffs assert the following claims: (1)
“general allegations” (Count I); (2) excessive force (Count II); (3) false imprisonment (Count III);
(4) unreasonable seizure (Count IV); (5) a Monell claim (Count V); and (6) failure to provide or
timely secure medical care (Count VI). D.E. 1. Defendants subsequently filed their partial motions
to dismiss, seeking to dismiss certain claims pursuant to Federal Rule of Civil Procedure 12(b)(6).
D.E. 6, 14, 21.
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint that fails
“to state a claim upon which relief can be granted[.]” For a complaint to survive dismissal under
Rule 12(b)(6), it must contain sufficient factual matter to state a claim that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
The Officer Defendants are Detective Ozie Ryals, Detective Gino Izzo, Sgt. Christopher Bozios,
Jr., Detective Edgar J. Silverio, Detective Yusef Ellis, Detective Erik Udvarhely, Det. Jose
Yunque, Sgt. Emanuel Periera, and Officer Abdullah Holmes.
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570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. Further, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery
will uncover proof of her claims.” Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir.
2016). In evaluating the sufficiency of a complaint, district courts must separate the factual and
legal elements. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements
of the elements of a claim are legal conclusions, and therefore, are not entitled to a presumption of
truth. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however,
“must accept all of the complaint’s well-pleaded facts as true.” Fowler, 578 F.3d at 210. Even if
plausibly pled, however, a complaint will not withstand a motion to dismiss if the facts alleged do
not state “a legally cognizable cause of action.” Turner v. J.P. Morgan Chase & Co., No. 14-7148,
2015 WL 12826480, at *2 (D.N.J. Jan. 23, 2015).
Defendants seek to dismiss Counts I and III of the Complaint, which assert claims pursuant
to 42 U.S.C. § 1983 and the NJCRA. Section 1983, in relevant part, provides as follows:
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[.]
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, 393-94 (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
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territorial law.” Burt v. CFG Health Sys., No. 15-2279, 2015 WL 1646849, at *2 (D.N.J. Apr. 14,
The NJCRA provides a private cause of action to
[a]ny person who has been deprived of any substantive due process or equal
protection rights, privileges or immunities secured by the Constitution or
laws of the United States, or any substantive rights, privileges or immunities
secured by the Constitution or laws of this State, or whose exercise or
enjoyment of those substantive rights, privileges or immunities has been
interfered with or attempted to be interfered with, by threats, intimidation
or coercion by a person acting under color of law, may bring a civil action
for damages and for injunctive or other appropriate relief.
N.J. Stat. Ann. 10:6-2. The “NJCRA was modeled after § 1983, [and so] courts in New Jersey
have consistently looked at claims under the NJCRA through the lens of § 1983 and have
repeatedly construed the NJCRA in terms nearly identical to its federal counterpart.” Velez v.
Fuentes, No. 15-6939, 2016 WL 4107689, at *5 (D.N.J. July 29, 2016) (internal quotations and
citation omitted). Therefore, the Court considers Plaintiffs’ Section 1983 and NJCRA claims
1. Count One
Defendants seek to dismiss Count One, to the extent that it pleads a substantive due process
violation. Namely, Defendants argue that Plaintiffs’ substantive due process claim is really a claim
for excessive force, which arises under the Fourth Amendment rather than the Fourteenth
Amendment. Sheriff’s Br. at 16-17. Plaintiffs counter that their substantive due process claim is
separate from their excessive force claim, and addresses Defendants’ alleged failure to provide
appropriate medical care. Plfs. Opp. at 3-4.5 “[A]ll claims that law enforcement officers have
The Essex County Sheriff Department argues that this Court should not consider Plaintiffs’
opposition brief because it was not timely filed. See Sheriff Reply at 2. Local Civil Rule 7.1(d)(2)
provides that opposition papers to a motion must be filed at least fourteen days before the original
motion day, unless the Court orders otherwise or the party obtains an extension. See L. Civ. R.
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used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other
‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’
standard, rather than under a ‘substantive due process’ approach.” Graham v. Connor, 490 U.S.
386, 395 (1989) (emphasis omitted). “The Due Process Clause, however, does require the
responsible government or governmental agency to provide medical care to persons . . . , who have
been injured while being apprehended by the police.” City of Revere v. Mass. Gen. Hosp., 463
U.S. 239, 244 (1983); see also Conde v. City of Atlantic City, 293 F. Supp. 3d 493, 506 (D.N.J.
2017) (“The Eighth Amendment’s ‘deliberate indifference’ standard, applies, through the
Fourteenth Amendment, to Plaintiff’s claim that Mack was denied medical attention after he was
shot twice in the back” by a police officer). In this instance, Plaintiffs allege that for hours after
the shooting occurred, none of the Officer Defendants offered medical aid or called emergency
personnel “while [Braswell] lay dying[.]” Compl. ¶ 12. These allegations state a claim for failure
to provide medical care under the Fourteenth Amendment. Consequently, Defendants’ motions to
dismiss are denied on these grounds.6
In their reply brief, the County of Essex Defendants argue that Count One must be
7.1(d)(2). Here, the Essex County Sheriff Department filed its motion to dismiss in January 2021,
D.E. 6, and Plaintiffs filed their opposition brief on June 7, 2021, D.E. 16. Plaintiffs did not obtain
an extension with respect to the Essex County Sheriff Department’s motion. Accordingly,
Plaintiffs filed their brief almost five months late. Plaintiffs, however, did file their opposition
brief to the County of Essex Defendants’ motion in a timely fashion, and all the Defendants make
identical arguments for dismissal. As a result, the Court will consider Plaintiffs’ opposition brief
because it was timely filed with respect to the County of Essex Defendants. Plaintiffs, however,
are cautioned that going forward, they will be required to adhere to all filing deadlines in this
matter or seek an extension before a deadline passes.
Defendants do not argue that this claim should be dismissed as to any Defendant because of
qualified immunity. As a result, the Court will not address the issue of qualified immunity at this
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dismissed because it is a “shotgun pleading” that violates Federal Rule of Civil Procedure 8(a).7
Cnty. Br. at 3-4. Rule 8(a) requires that pleadings include “a short plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Complaints that violate
this rule ‘are often disparagingly referred to as shotgun pleadings.’” Bartol v. Barrowclough, 251
F. Supp. 3d 855, 859 (E.D. Pa. 2017) (quoting Weiland v. Palm Beach Ctny. Sheriff’s Office, 792
F.3d 1313, 1320 (11th Cir. 2015)). Count One of Plaintiffs’ Complaint is entitled “General
Allegations” and asserts Section 1983 and NJCRA claims alleging violations of the Fourth and
Fourteenth Amendments. Plaintiffs appear to assert claims for unreasonable search and seizure;
excessive force; false arrest; and a substantive due process violation. Compl. ¶¶ 16-17. In the
remainder of the Complaint, however, Plaintiffs assert each of the alleged constitutional violations
in separate counts. See, e.g., Compl. ¶¶ 45-51 (asserting a failure to provide or secure timely
medical care in Count VI). Thus, the Complaint is not a shotgun pleading. However, because
Count I is redundant of Counts II through VI, Count I is dismissed.
2. Count Three
Defendants also seek to dismiss Plaintiffs’ false arrest and imprisonment claims because
Braswell was never arrested or restrained by Defendants. See Sheriff Br. at 18-19. “An arrest
made without probable cause creates a cause of action for false arrest under 42 U.S.C. § 1983.”
O'Connor v. City of Philadelphia, 233 F. App'x 161, 164 (3d Cir. 2007) (citing Dowling v. City of
As the County of Essex Defendants acknowledge, this argument was raised in the first instance
in their reply brief. Ordinarily, the Court does not consider such new arguments. See Cobra
Enters., LLC v. All Phase Servs., Inc., No. 20-4750, 2020 WL 2849892, at *1 (D.N.J. June 1, 2020)
(“As a matter of procedure, this Court will not accept arguments offered for the first time in
the reply brief, as they were not properly asserted in the opening brief and Plaintiffs have not had
the opportunity to respond to them.”). However, because this argument will streamline the
pleading and does not actually result in the dismissal of any of Plaintiffs’ substantive claims, the
Court considers the argument.
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Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)). To state a false arrest claim, “a plaintiff must
establish: (1) that there was an arrest; and (2) that the arrest was made without probable cause.”
James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012). In this instance, Plaintiffs plead
that Defendants lacked probable cause to effectuate an arrest, Compl. ¶ 25, but do not plead that
Braswell was arrested. Accordingly, Plaintiffs fail to plead a Section 1983 false arrest claim.
Plaintiffs rely on United States v. Mendenhall, 446 U.S. 544 (1980) and Torres v. Madrid,
141 S. Ct. 989 (2021) to support their argument that an arrest occurred in this matter. Plfs. Opp.
at 8. In both cases, the Supreme Court considered the parameters of a seizure under the Fourth
Amendment. In Mendenhall, the Supreme Court addressed the concept of a seizure to determine
whether an individual consented to a search. Mendenhall, 446 U.S. at 559-60. And in Torres, the
Supreme Court addressed the scope of an excessive force claim, specifically whether a shooting
without actual physical restraint could constitute a seizure under the Fourth Amendment. Torres,
141 S. Ct. at 994. But claims based on false arrest, excessive force, and improper search address
different Fourth Amendment violations. For example, an excessive force claim indicates that a
police officer used force that was not justified under the circumstances, whereas a false arrest claim
targets an improper arrest due to the lack of probable cause. See Groman v. Township of
Manalapan, 47 F.3d 628, 633-34, 36 (3d Cir. 1995). In relying on Torres and Mendenhall to
support their false arrest claim, Plaintiffs are conflating separate issues. See County of Los Angeles
v. Mendez, 137 S. Ct. 1539, 1547 (2017) (“If there is no excessive force claim under Graham [v.
Connor], there is no excessive force claim at all. To the extent that a plaintiff has other Fourth
Amendment claims, they should be analyzed separately.”); see also Kayo v. Mertz, --- F. Supp. 3d
---, 2021 WL 1226869, at *14 (S.D.N.Y. 2021) (“Because the lawfulness of an arrest is irrelevant
to an excessive force analysis, the plaintiff’s excessive force claim must be analyzed separately
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from the false arrest claim.” (quoting Vitalone v. City of New York, No. 15-8525, 2018 WL
1587591, at *6 (S.D.N.Y. Mar. 27, 2018)).
Plaintiffs also fail to state a claim for false imprisonment.
Plaintiffs plead false
imprisonment claims under the Fourth and Fourteenth Amendment. Compl. ¶ 25. “[W]here the
police lack probable cause to make an arrest, the arrestee has a claim under § 1983 for false
imprisonment based on a detention pursuant that arrest.” Groman, 47 F.3d at 636. This claim “is
grounded in the Fourth Amendment’s guarantee against unreasonable seizures.” Id. Plaintiffs
contend that they state a claim because the Complaint sufficiently alleges that Defendants lacked
probable cause. Plfs. Opp. at 9. But again, Plaintiffs do not plead that Braswell was arrested. A
Fourth Amendment false imprisonment claim is premised on the detention after an arrest, so
without an arrest, Plaintiff could not have been falsely imprisoned
An unlawful detention outside the context of an arrest may also give rise to a false
imprisonment claim but such a claim is premised on the Fourteenth Amendment. See Potts v. City
of Philadelphia, 224 F. Supp. 2d 919, 937 (E.D. Pa. 2002). The Supreme Court has suggested that
a Fourteenth Amendment false imprisonment claim arises in the case of prolonged detention. Id.
(quoting Baker v. McCollan, 443 U.S. 137, 143 (1979)). But in Baker, the Court determined that
a three-day detention “does not and could not amount to such a deprivation.” Baker, 443 U.S. at
143. Here, the detention Plaintiffs are relying on to support a Fourteenth Amendment false
imprisonment claim is not clear. Plaintiffs may be claiming that the period of detention is the
length of time that Defendants allegedly failed to provide Braswell with medical care. Plaintiffs
allege that this lasted for hours. Compl. ¶ 12. This length of time is insufficient to support a
Fourteenth Amendment false imprisonment claim. See Potts, 224 F. Supp. 2d at 937 (“Here,
[Plaintiff] was detained for 30 hours, well short of three days. Thus, under Baker, plaintiff cannot
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establish a claim against [Defendants] for unlawful detention as a matter of law.”). Accordingly,
Plaintiffs cannot state a false imprisonment claim pursuant to the Fourteenth Amendment.
In sum, Plaintiffs fail to state a claim for false arrest or imprisonment. Count III, therefore,
For the foregoing reasons, Defendants’ motions to dismiss (D.E. 6, 14, 21) are GRANTED
in part and DENIED in part. Specifically, Counts I and III are dismissed. Plaintiffs shall have
thirty (30) days to file an amended complaint that cures the deficiencies noted herein. If Plaintiffs
do not file an amended pleading within that time, the claims dismissed herein will be dismissed
with prejudice. An appropriate Order accompanies this Opinion.
Dated: September 7, 2021
John Michael Vazquez, U.S.D.J.
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