GUMBS v. O'CONNOR et al

Filing 59

MEMORANDUM OPINION AND ORDER granting in part and denying in part 49 Plaintiff's Motion to Amend/Correct; Ordering the Plaintiff to file a Second Amended Complaint which complies with the terms of this Order no later than 2/27/2012; further Or dering, if necessary, Defendants shall respond to Plaintiff's Second Amended Complaint within 30 days of the date of the District Courts ruling on the pending Motion for Summary Judgment. Signed by Magistrate Judge Tonianne J. Bongiovanni on 1/12/2012. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KEVIN BRADLEY GUMBS,

Civil Action No. 10-1520 (MLC)

Plaintiff,
v.

MEMORANDUM OPINION & ORDER

JOHN O’CONNOR, et al.,
Defendants.

BONGIOVANNI, Magistrate Judge
Currently pending before the Court is Plaintiff Kevin Bradley Gumbs’ (“Plaintiff”)
motion seeking leave to file a Second Amended Complaint [Docket Entry No. 49] in order to
identify previously named John Doe defendants based upon information he received in the course
of discovery and to assert claims against Defendants in their individual capacities. Defendant
opposes Plaintiff’s motion. The Court has fully reviewed the papers submitted in support of and
in opposition to Plaintiff’s motion. The Court considers Plaintiff’s motion without oral argument
pursuant to FED .R.CIV .P. 78. For the reasons set forth below, Plaintiff’s motion is GRANTED in
part and DENIED in part without prejudice.
I.

Background and Procedural History
This case involves a Fourth Amendment unreasonable search and seizure claim against

Detective John O’Connor arising out of a May 2, 2008 search of Plaintiff’s home conducted by
members of the Keansburg Police Department. Plaintiff’s original Complaint included various
other claims and “John Doe” defendants; however, the District Court dismissed all other claims
and defendants per Its April 4, 2011 Order [Docket Entry No. 20]. Shortly thereafter, and

without seeking leave of the Court, Plaintiff filed an Amended Complaint which essentially restated the claims that the District Court had previously dismissed [Docket Entry No. 24]. Per an
Order dated May 10, 2011, the District Court dismissed Plaintiff’s Amended Complaint without
prejudice and informed Plaintiff that an appropriate motion should be filed in the event he wishes
to further amend his Complaint [Docket Entry No. 27]. Plaintiff has now filed such a motion.
Plaintiff has not filed a brief in connection with his Motion for Leave to File a Second
Amended Complaint. However, in light of the fact that Plaintiff is proceeding pro se, the Court
shall determine the rationale behind his application from Plaintiff’s Cover Letter to his Proposed
Amended Complaint [Docket Entry No. 49], his Reply Brief to Defendant’s Opposition [Docket
Entry No. 54] and the Proposed Amended Complaint itself [Docket Entry No. 49-1].
In his Proposed Amended Complaint, Plaintiff seeks to identify certain “John Doe”
defendants whose identities were revealed through the course of discovery. Specifically, Plaintiff
wishes to name Patrolman James Lopez, Special Officer G. Rivera, Lieutenant Kevin White and
Chief Officer James Pigott. Plaintiff wishes to assert causes of action against these defendants in
their individual capacities for violations of his Fourth and Fourteenth Amendment Rights. See
Plaintiff’s Proposed Amended Complaint at *11.
Defendant opposes Plaintiff’s motion. Defendant states that Plaintiff has had sufficient
time to seek permission to make his proposed amendments since filing his original Complaint in
March, 2010, but that Plaintiff has chosen not to do so. Defendant argues that Plaintiff’s current
motion should be dismissed on this ground alone.
Defendant also points out that a Motion for Summary Judgement is pending. As a result,
relying on Phillips v. Borough of Keyport, 179 .R.D. 140, 144 (D.N.J. 1998), Defendant asserts
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that Plaintiff’s motion should be held to a heighten standard and that under this standard,
Plaintiff’s motion should be denied.
Defendant further argues that Plaintiff has never before sought to name John O’Connor or
the other “John Doe” defendants individually. Defendant’s Opposition at *3. Defendant does not
believe that Plaintiff should be permitted to do so now.
Finally, Defendant argues that Plaintiff has caused undue delay in waiting so long to file
this application and that Plaintiff’s proposed amendments are futile. Defendant believes that
Plaintiff also seeks to introduce a state law claim for malicious prosecution and opposes this on
the grounds that Plaintiff has failed to file an appropriate Notice of Tort Claim.
II.

Discussion
A.

The Court’s Interpretation of Plaintiff’s Proposed Amended Complaint

As mentioned above, Plaintiff failed to file a brief in support of his Motion to Amend and
the Court has interpreted the rationale behind this application from Plaintiff’s cover letter, from
the Proposed Amended Complaint itself, and from Plaintiff’s response to Defendant’s
Opposition. However, the Court’s task of interpretation is complicated by the fact that Plaintiff’s
Proposed Amended Complaint contradicts statements made in his Reply submission. Plaintiff’s
Proposed Amended Complaint specifically seeks to assert claims against the defendants in their
individual capacities. Proposed Amended Complaint, Docket Entry No. 49-1 at*4-5. However,
Plaintiff later states that he believes that Defendants violated his rights “in their capacity as
police officers.” Plaintiff’s Reply, Docket Entry No. 54 at *3.
Courts must construe submissions by pro se plaintiffs broadly. Haines v. Kerner, 404
U.S. 519, 520-21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). Here, Plaintiff
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clearly seeks to assert causes of action against the proposed defendants in their individual
capacities as evidenced by the wording of his Proposed Amended Complaint. However, the
statements in Plaintiff’s Reply submission indicate that he also believes the defendants violated
his rights while acting in their official capacity. As such, the Court concludes that Plaintiff seeks
to assert causes of action against these Defendants in both their official and individual capacities.
In reaching this conclusion, the Court is left with the dilemma of having a Second
Amended Complaint on the docket which does not accurately reflect all of the claims against
Defendants. To remedy this situation, Plaintiff is directed to file a revised Second Amended
Complaint which complies with the terms of this Order. Plaintiff is reminded that outside of the
amendments permitted by this Order, he can make no other changes to his Second Amended
Complaint. If unapproved amendments are included in Plaintiff’s Second Amended Complaint,
then they will be summarily stricken by the Court once same are brought to the Court’s attention.
B.

Analysis of Plaintiff’s Proposed Amendments
1.

Standard of Review

Pursuant to FED .R.CIV .P. 15(a)(2), leave to amend the pleadings is generally given freely.
See Foman v. Davis, 371 U.S. 178, 182 (1962); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir.
2000). Nevertheless, the Court may deny a motion to amend where there is “undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of
the amendment, [or] futility of the amendment.” Id. However, where there is an absence of
undue delay, bad faith, prejudice or futility, a motion for leave to amend a pleading should be
liberally granted. Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004).
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In this case, Defendant cites only undue delay and futility in opposition to Plaintiff’s
motion. Defendant’s Letter Brief in Opposition, Docket Entry No. 53 at *5. The Court will
address each argument in turn.
2.

Undue Delay

Defendant points out that this case has been pending for nearly two years and that
Plaintiff has just now sought to amend his Complaint. Delay alone, however, does not justify
denying a motion to amend. See Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 273
(3d Cir. 2001). Rather, it is only where delay becomes “‘undue,’ placing an unwarranted burden
on the court, or . . . ‘prejudicial,’ placing an unfair burden on the opposing party” that denial of a
motion to amend is appropriate. Adams v. Gould Inc., 739 F.2d 858, 868 (3d Cir. 1984).
Moreover, unless the delay at issue will prejudice the non-moving party, a movant does not need
to establish a compelling reason for its delay. See Heyl & Patterson Int’l, Inc. v. F. D. Rich
Housing of Virgin Islands, Inc., 663 F.2d 419, 426 (3d Cir. 1981).
In this case, Defendant specifically declines to make any prejudice argument. Thus, the
question of undue delay becomes whether amendment of the Complaint will place an
unwarranted burden on the Court. Adams, 739 F. 2d at 868. In making this assessment, the focus
should be on Plaintiff’s motives for not amending the Complaint earlier. Id. Plaintiff has
indicated that this application to amend was prompted by information revealed in September,
2011 through discovery. In addition, the Court notes that although the Complaint was originally
filed in March, 2010, the case was not fully processed and re-opened until September 2010.
Further, no date was set as to the filing deadline of a motion to amend or to join parties. Per the
most recent Scheduling Order [Docket Entry No. 38], dispositive motions were to be filed by
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November 23, 2011. On November 16, 2011, Plaintiff filed the present motion. In light of the
above, the Court finds that Plaintiff’s delay in filing this motion does not justify its denial.
3.

Futility

A motion to amend is also properly denied where the proposed amendment is futile. An
amendment is futile if it “is frivolous or advances a claim or defense that is legally insufficient on
its face.” Harrison Beverage Co. v. Dribeck Imp., Inc.,, 133 F.R.D. 463, 468 (D.N.J. 1990)
(internal quotation marks and citations omitted). In this case, the futility analysis is further
complicated by the fact that a Motion for Summary Judgement is pending. Defendant filed the
Summary Judgement Motion on October 6, 2011. Plaintiff’s Motion to Amend was filed on
November 16, 2011. The Third Circuit addressed such a situation in its discussion in Phillips:
Thus, generally, the applicable standard to determine futility is whether the
amendment is “sufficiently well-grounded in fact or law to demonstrate that it is
not a frivolous pursuit.” Harrison Beverage, 133 F.R.D. at 469. However, there
are situations in which attempts to amend a pleading are more likely to be sought
for their tactical advantage. In order to minimize the burden imposed upon the
non-moving party in situations where amendments are likely to be sought for
tactical reasons, courts have noted that where plaintiff files a motion to amend
after defendant has moved for summary judgment the motion to amend will not be
granted unless the party seeking amendment can show not only that the proposed
amendment has “substantial merit”, Verhein v. South Bend Lathe, Inc., 598 F.2d
1061, 1063 (7th Cir.1979), but also come forward with “substantial and
convincing evidence” supporting the newly asserted claim. (citations omitted.)
Carey v. Beans, 500 F.Supp. 580, 582 (E.D.Pa.1980), aff'd, 659 F.2d 1065 (3d
Cir.1981). Application of this heightened standard has been found to be justified.
A plaintiff who proposes to amend his complaint after the defendant has moved
for summary judgment may be maneuvering desperately to stave off the
immediate dismissal of the case. With this a possibility, district judges are not
content with an allegation sufficient in law; they want to see some evidence to
back it up. Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 943 (7th Cir.1995).

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179 F.R.D. 140 at 144-145.

In light of this heightened standard, the Court finds that, while

certain of Plaintiff’s proposed amendments are appropriate, others must be denied as futile. The
Court addresses each in turn below.
a.

Futile Amendments

First, Plaintiff’s statement of facts, which serves as the basis for his claims, involves only
the circumstances surrounding the May 2, 2008 search of his home. As such, any claims brought
in his Complaint must arise from the facts surrounding the search. Therefore, to the extent that
Plaintiff intended claims in his Proposed Amended Complaint to relate to false arrest, false
imprisonment, due process violations or malicious prosecution, those claims must be dismissed
as legally insufficient.
The District Court has already addressed the futility of claims relating to Plaintiff’s arrest
and detention in Its April 4, 2011 Opinion. The District Court concluded that Plaintiff had failed
to state a claim for false arrest or false imprisonment although the initial Complaint included a
description of the circumstances of Plaintiff’s arrest. Here, Plaintiff has not plead any facts
relating to his arrest or detention. As such, Plaintiff’s revived claims of false imprisonment, false
arrest or other due process violations fail as futile even under the most liberal interpretation.
Further, as Defendant points out, Plaintiff has failed to file a Notice of Tort Claim for his
entirely new allegation of malicious prosecution. Thus, to the extent that Plaintiff meant to assert
a state law claim for malicious prosecution, this claim would fail as futile even if a proper factual
basis for such a claim had been established, which it has not.
Second, Plaintiff’s claims against proposed Defendants Lieutenant Kevin White and
Chief Officer James Pigott, must also fail as futile. Plaintiff has not alleged that either
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Lieutenant White or Chief Officer Pigott was present at the May 2, 2008 search. Therefore, no
facts have been alleged which would implicate either Lieutenant White or Chief Officer Pigott as
defendants in this case.
Although Plaintiff has identified Lieutenant White as having “supervised” the other
defendants, it is well established that local government units and supervisors are not liable under
§ 1983 solely on a theory of respondeat superior. See City of Oklahoma City v. Tuttle, 471 U.S.
808, 824 n.8 (1985); Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 694 (1978)
(municipal liability attaches only “when execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury” complained of); Natale v.Camden Cnty. Corr. Fac., 318 F.3d 575,
583-84 (3d Cir. 2003). “A defendant in a civil rights action must have personal involvement in
the alleged wrongs, liability cannot be predicated solely on the operation of respondeat superior.
Personal involvement can be shown through allegations of personal direction or of actual
knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)
(citations omitted). Accord Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-96 (3d Cir.
1997); Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995). Plaintiff argues that
Lieutenant White “knew of the violations that were committed and did nothing to prevent” them;
but Plaintiff does not describe the alleged violations to which he refers, when Lieutenant White
allegedly knew about them or the alleged extent of Lieutenant White’s knowledge. Proposed
Amended Complaint at *5. As such, Plaintiff has failed to assert a cause of action against
Lieutenant White.

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Similarly, Plaintiff has pled no facts which implicate Chief Officer Pigott. It seems as
though Plaintiff is again trying to revive the defamation of character claim included in his
original Complaint by naming Officer Pigott in his Proposed Amended Complaint. The District
Court has already addressed this issue in Its April 4, 2011 Opinion [Docket Entry No. 20] and
declines to do so again.
For the reasons set forth above and for the reasons described in the District Court’s April
4, 2011 Opinion, Plaintiff’s proposed claims against proposed Defendants White and Pigott are
denied as futile.
b.

Appropriate Amendments

With respect to Plaintiff’s proposed claims against Patrolman Lopez and Special Officer
G. Rivera, the Court finds that Plaintiff may properly assert claims against both relating to the
May 2, 2008 search. Patrolman Lopez and Special Officer Rivera were present at the May 2,
2008 search of Plaintiff’s home and, thus, are essentially in the same position as current
Defendant John O’Connor. The District Court, via Its April 4, 2011 Opinion, already determined
that Plaintiff’s allegations that the officers who conducted the May 2, 2008 search exceeded the
scope of the consent they received to search Plaintiff’s home were sufficient to avoid dismissal.
Thus, this Court finds that Plaintiff’s proposed amendment to add claims relating to this search
against Patrolman Lopez and Special Officer Rivera have “substantial merit.”
As a result, the Court next turns to whether Plaintiff should be permitted to assert claims
related to the May 2, 2008 search against Patrolman Lopez and Special Officer Rivera in both
their individual as well as official capacities or only in their official capacities. To answer this

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question, the Court examines the manner in which Plaintiff sued the existing Defendant, John
O’Connor.
In determining whether a plaintiff has sued a defendant individually or officially, “the
Third Circuit has adopted a ‘more flexible approach [compared to other jurisdictions],’
instructing courts to carefully examine the nature of the relief sought in the complaint and the
parties' conduct throughout the ‘course of the proceedings.’” Combs v. Borough of Avalon, Civil
Action No. 05-5904, 2007 WL 401905 (D.N.J. Feb. 1, 2007) (citing Melo v. Hafer, 912 F.2d
628, 636 (3d Cir.1990). Although Defendant argues in his Opposition that “at no point prior to
this proposed amendment has plaintiff sought to name John O’Connor or the ‘John Does of the
Keansburg Police Department’ individually,” his actions suggest that he believes otherwise.
Defendant’s Opposition at *3-4.
One of the arguments raised in Defendant’s Motion for Summary Judgment [Docket
Entry No. 41], is that Defendant John O’Connor is entitled to qualified immunity. It is well
established that the defense of qualified immunity may only be asserted by officials sued in their
individual capacities. See Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398 (1980)
(emphasis added). Thus, in applying a “course of pleadings” test to the situation at hand, and in
relying on applicable case law, it appears to the Court that Defendant understood that Plaintiff
had sued him, at least, in his individual capacity. See Garden State Electrical Inspection
Services Inc. v. Levin, 144 Fed. Appx. 247, 251-52 (3d Cir.2005) (citations omitted) (discussing
Melo) (finding that an official’s assertion of the qualified immunity defense was indicative that
defendant "understood that plaintiffs sought to sue her in her personal capacity."). Given the fact
that Plaintiff asserted causes of action against the original Defendant, John O’Connor, in both his
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official and individual capacities, the Court finds that Plaintiff may also do so against Patrolman
Lopez and Special Officer Rivera.
The Court notes that Its ruling on the instant Motion to Amend is not intended to have
any effect on the pending Motion for Summary Judgment. The newly added defendants,
Patrolman Lopez and Special Officer Rivera, are in essentially the same procedural posture as the
existing Defendant, John O’Connor; in fact, there do not appear to be any significant differences
among these Defendants. The arguments raised by Defendant John O’Connor in his pending
Motion for Summary Judgment appear to apply equally to Patrolman Lopez and Special Officer
Rivera; and the latter are welcomed to join in same. Indeed, a ruling favorable to Defendant John
O’Connor on his pending Motion for Summary Judgment could have the effect of terminating
the case as to all parties. As a result, the Court shall not require any Defendant to respond to
Plaintiff’s Second Amended Complaint until after the pending Motion for Summary Judgment is
decided. In the event that the Motion for Summary Judgment is unsuccessful, Defendants are
instructed to file an Answer, or to otherwise respond, to Plaintiff’s Second Amended Complaint
no later than 30 days after the District Court’s Opinion issues.
III.

Conclusion
For the reasons stated above, Plaintiff’s Motion to Amend is GRANTED in part and

DENIED in part. Plaintiff is permitted to amend his Complaint to add Patrolman Lopez and
Special Officer Rivera as named Defendants and to assert a cause of action for an unreasonable
search in violation of his Fourth Amendment Rights against all Defendants in their official and
individual capacities.

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For the reasons set forth above, and with good cause shown;
It is on this 12th day of January, 2012;
ORDERED that Plaintiff’s Motion for Leave to file a Second Amended Complaint is
GRANTED in part and DENIED in part; and it is further
ORDERED that Plaintiff’s Fourth Amendment Unlawful Search claim may proceed as to
Defendants Detective John O’Connor, Patrolman James Lopez and Special Officer G. Rivera in
their official and individual capacities; and it is further
ORDERED that Plaintiff shall file a Second Amended Complaint which complies with
the terms of this Order no later than February 27, 2012; and it is further
ORDERED that, if necessary, Defendants shall respond to Plaintiff’s Second Amended
Complaint within 30 days of the date of the District Court’s ruling on the pending Motion for
Summary Judgment; and it is further
ORDERED that the Clerk of the Court shall terminate the aforementioned motion
[Docket Entry No. 49] accordingly.

s/Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE

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