GUMBS v. O'CONNOR et al

Filing 91

MEMORANDUM OPINION. Signed by Magistrate Judge Tonianne J. Bongiovanni on 1/31/2013. (gxh)

NOT FOR PUBLICATION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

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Plaintiff,
v.
JOHN O’CONNOR, et al.,
Defendants.

Civil Action No. 10-1520 (MLC)

MEMORANDUM OPINION

BONGIOVANNI, Magistrate Judge
Currently pending before the Court is Plaintiff Kevin Bradley Gumbs= (APlaintiff@) motion
and application seeking leave to file a Third Amended Complaint [Docket Entry No. 80, 82]1 in
order to assert new claims against existing Defendants. Defendants O’Connor, Lopez and Rivera
have filed opposition to Plaintiff=s motion [Docket Entry No. 83]. Plaintiff has not filed a reply
brief. The Court has fully reviewed all submissions 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 DENIED without prejudice.
I.

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

Detective John O=Connor, Patrolman Lopez and Special Officer Rivera arising out of a May 2,

1 The Court notes that Plaintiff has recently filed another Letter Application [Docket Entry No. 88] seeking leave to
add another defendant, Keansburg Municipality, to this case. Defendants have filed a response to this request
[Docket Entry No. 90]. The Court agrees with Defendants’ analysis and finds that such a request needs to be filed by
formal motion, that such an application is untimely given the approacing close of discovery, and that there are no new
facts justifying Plaintiff’s delay in seeking to add Keansburg Municipality as a defendant. For the foregoing reasons
as well as the reasons set forth in this Opinion, Plaintiff’s Letter Application is DENIED.

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2008 search of Plaintiff=s home conducted by members of the Keansburg Police Department.
Plaintiff=s original Complaint included various other claims and AJohn 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 re-stated 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 filed such a motion on November 16, 2011 [Docket entry No. 49] which was
granted in part and denied in part by this Court in a Memorandum Opinion and Order dated
January 2, 2012 [Docket Entry No. 59]. In that Opinion, this Court granted Plaintiff’s
amendment insofar as it added Patrolman Lopez and Special Officer Rivera as Defendants
alongside Defendant O’Connor and permitted Plaintiff 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. It, however, denied Plaintiff’s request to assert any cause of
action against Lieutenant White or Chief Officer Pigott, as there were no adequately pled facts to
support such claims.
On January 20, 2012, Plaintiff filed his Second Amended Complaint which improperly
included Lieutenant White and Chief Officer Pigott, and additionally failed to omit claims of
malicious prosecution, false arrest and false imprisonment.
Plaintiff now seeks leave to file a Third Amended Complaint, asserting claims against
Lieutenant White and additionally asserting claims of false arrest and false imprisonment against
the current Defendants. Plaintiff has not filed a Proposed Third Amended Complaint in
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connection with his Motion as required by L. CIV. R. 7.1(f). However, subsequent to filing the
motion, Plaintiff filed an additional application to amend his complaint, including both a letter
brief and a proposed amended complaint [Docket Entry No. 82]. In light of the fact that Plaintiff
is proceeding pro se, the Court shall construe both docket entries together as one motion to amend,
satisfying the requirements of L. CIV. R. 7.1(f).
Plaintiff’s proposed amendments to his complaint are threefold. In his letter brief,
Plaintiff acknowledges that he is “attempting to reinstate previously made claims which were
previously rejected by the Court.” Plaintiff’s Brief in Support, Docket Entry No. 82-3, at *1.
Plaintiff’s justification for this is that the claims are now based upon “newly discovered
information found through the discovery process.” Id. Plaintiff offers two facts constituting this
new discovery. First, he claims that the statement which constituted grounds for probable cause
for his arrest has not been provided by Defendants. The statement that allegedly implicated
Plaintiff was made by one John Tufaro (“Tufaro”) and was later recanted by Tufaro, resulting in
the charges being dropped against Plaintiff. Second, Plaintiff argues that the complaint-warrants
issued to arrest him had two dates of issuance. Plaintiff then makes the conclusory statement that
the above “clearly establish enough grounds for a claim of false arrest and false imprisonment.” Id.
Plaintiff’s second amendment attempts to reinstate claims against Lieutenant White.
Plaintiff claims that White was the named supervising officer on May 2, 2008 when his home was
searched. Plaintiff relies on the above facts to establish that Lieutenant White acted with
“deliberate indifference” in failing to supervise his subordinates, thereby contributing to Plaintiff’s
sustained constitutional violations.
Lastly, Plaintiff states that he wishes to amend his complaint to reflect his wish to have a
non-jury trial, as opposed to a jury trial.
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Defendants oppose Plaintiff=s motion. Defendants argue that probable cause existed for
Plaintiff’s arrest despite the fact that Tufaro’s statement was later recanted and the criminal
charges against Plaintiff dropped. Defendant=s Letter Brief in Opposition, Docket Entry No. 83, at
*8. Defendants argue that the analysis takes place at the time of the arrest and does not require
guilt. Defendants cite to Green v. City of Paterson, 971 F.Supp. 891, 907 (D.N.J. 1997), holding
that “[a]n identification by a witness or victim is sufficient to make out probable cause for an
arrest.” Id. at *11. Defendants additionally argue that Tufaro’s statement and positive
identification was not the only item constituting probable cause; the observations of the officers as
well as the prior narcotic activity at the residence also contributed to Plaintiff’s arrest.
Defendants make the alternative argument that even if the Court finds probable cause to be
lacking, that the Defendants would be entitled to qualified immunity based upon their reasonable
belief that the arrest was legitimate.
Finally, Defendants further argue that Plaintiff’s request to amend at this time is prejudicial
and that any amendments are futile. Defendants argue that Plaintiff has had since April 4, 2011 to
set forth a proper cause of action and has failed to do so. Such delay would “result in additional
discovery, cost, and preparation to defendant against new facts and/or new theories.” Id. at *16.
II.

Analysis
A. 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 Aundue 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
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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).
In this case, Defendant cites futility and prejudice in opposition to Plaintiff=s motion.
Defendant=s Letter Brief in Opposition, Docket Entry No. 83 at *15-16. The Court will address
each argument in turn.
B.

Plaintiff=s Proposed Amendments
1.

Futility

A motion to amend is properly denied where the proposed amendment is futile. An
amendment is futile if it Ais 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). An amendment is futile if it Ais 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). The following language is taken directly from this Court’s prior Order:
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
pled 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.
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Memorandum Opinion and Order, Docket Entry No. 59, at *7.
The same analysis applies here. Plaintiff has pled facts arising only out of the May 2,
2008 search of his home. It seems to the Court that Plaintiff is yet again attempting to reassert
claims which have thrice been dismissed by the Court. [Docket Entry Nos. 20, 27, 59]. Plaintiff’s
claims of false arrest and false imprisonment as against Defendants O’Connor, Lopez and Rivera
remain futile.
Second, Plaintiff=s claims against proposed Defendant Lieutenant Kevin White must also
fail as futile. Plaintiff has not alleged that Lieutenant White was present at the May 2, 2008
search but merely that he was the named supervisor of the Defendants at the time the search was
conducted. Therefore, no facts have been alleged which would implicate Lieutenant White as a
defendant in this case. Once again, the Court quotes Its prior Order:
Although Plaintiff has identified Lieutenant White as having Asupervised@ 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 Awhen 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). AA 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 Aknew
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.
Memorandum Opinion and Order, Docket Entry No. 59, at *7.
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Similarly, Plaintiff now argues that White “acted with ‘deliberate’ indifference towards the
Plaintiff on May 2, 2008 by failing to supervise his subordinates knowing there was a risk of
constitutional harm and failed to prevent or remedy the harm.” Plaintiff’s Proposed Amended
Complaint, Docket Entry No. 82-2, at *1. For the reasons set forth in this Court’s January 2, 2012
Opinion, Plaintiff=s allegations are insufficient and his proposed claims against Lieutenant White
are denied as futile.
Therefore, Plaintiff’s only remaining amendment is the request to change his demand from
jury trial to non-jury trial. FED.R.CIV.P. 38 governs jury demands. Rule 38(d) provides that a
proper demand for a jury trial may be withdrawn only if the parties consent. Defendants have not
addressed Plaintiff’s request in their opposition, but Defendants’ Amended Answer [Docket Entry
No. 68] indicates that a jury trial has indeed been demanded. Id. at *6. Therefore, the Court does
not find consent and the demand for trial by jury stands.
2.

Prejudice

As the Court has already denied all the proposed amendments as futile, the Court declines
to offer analysis on whether the proposed amended complaint prejudices Defendants.
III.

Conclusion
For the reasons stated above, Plaintiff=s Motion to Amend is DENIED without prejudice.

An appropriate Order follows.

Dated: January 31, 2013

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