COLEMAN v. CITY OF LONG BRANCH et al

Filing 3

MEMORANDUM and ORDER that the section 1983 claims against the City of Long Branch that are premised on respondeat superior liability are dismissed WITH PREJUDICE; that the official capacity section 1983 claims against Mayor Adams Schneider and Direct or Jason Roebuck are dismissed as duplicative of the claims against the City of Long Branch; that the individual capacity section 1983 claims against Mayor Adams Schneider and Director Jason Roebuck are dismissed WITHOUT PREJUDICE for failure to alle ge the requisite personal involvement; that the section 1983 claims for abuse of process and malicious prosecution, and the state law claim for intentional infliction of emotional distress are dismissed WITHOUT PREJUDICE for failure to state a claim; that the remaining claims alleged in the Complaint shall PROCEED at this time; that, the Clerk shall mail to Plaintiff a transmittal letter explaining the procedure for completing United States Marshal 285 Forms. Signed by Judge Freda L. Wolfson on 3/30/2016. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WILLIAM COLEMAN,

Civil Action No. 15-7314 (FLW)

Plaintiff,
MEMORANDUM AND ORDER

v.
CITY OF LONG BRANCH, et al.,
Defendants.

1.

Plaintiff, currently confined at Monmouth County Correctional Facility, is

proceeding pro se with a prisoner civil rights Complaint filed pursuant to 42 U.S.C. § 1983 and
state law. (ECF No. 1). The Court previously granted Plaintiff’s in forma pauperis application.
(ECF No. 2.)
2.

Federal law requires this Court to screen the Complaint for sua sponte dismissal

prior to service, and to dismiss any claim if that claim fails to state a claim upon which relief
may be granted under Fed. R. Civ. P. 12(b)(6) and/or to dismiss any defendant who is immune
from suit. See 28 U.S.C. § 1915(e)(2)(B).
3.

In his Complaint, Plaintiff asserts that on August 14, 2014, he was a passenger in

an automobile and had arrived at the Ocean Court Motel in Long Branch, New Jersey. (ECF No.
1, Compl. at ¶¶ 19-22.) As Plaintiff and the driver exited the vehicle, Defendant Officer Robert
Bataille pulled into the parking lot and activated the lights on his patrol car. (Id. at ¶ 23.)
Officer Bataille then allegedly “upholstered [sic] his firearm and pointed it directly at defendant
[sic] telling him not to move.” (Id. at ¶ 24.) Fearing for his life, Plaintiff panicked and began to
run. (Id.) He alleges that after running for about a block, he “was suddenly hit by a Long
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Branch Police car driven by Patrick D. Joyce.” (Id.) Plaintiff was allegedly thrown 25 feet and
knocked unconscious. (Id.) After regaining consciousness, Plaintiff alleges that he was
“viciously attacked” by Defendant Officers Joyce, Vecchino, and Bataille. (Id. at ¶¶ 25-26.)
Officer Rodriguez and four John Doe Defendant Officers were also on the scene and proceeded
to verbally abuse Plaintiff, as they rolled him on his back and handcuffed him. (Id. at ¶ 27.)
Plaintiff alleges that he asked for medical assistance, but that Officer Defendants failed to
provide him with medical care or take him to the hospital. (Id. at ¶¶ 27, 29.)
4.

The following day, on August 15, 2014, Plaintiff alleges that Detectives Garrett,

Grippaldi, Zotti, Brown, and House “illegally entered Plaintiff’s motel room and seized
numerous items.” (Id. at ¶ 28.)
5.

Plaintiff further alleges that the City of Long Branch “permitted and tolerated a

pattern and practice of unreasonable use of force by police officers of Long Branch.” (Id. at ¶
34.) Plaintiff contends that the City of Long Branch “has maintained a system of review of
police conduct so untimely and cursory to be ineffective and to permit and tolerate the
unreasonable and excessive use of force by police officers.” (Id. at ¶ 35.) Plaintiff contends that
as a result, City of Long Branch police officers believe that excessive and unreasonable use of
force would not be investigated and they are more likely to use excessive or unreasonable use of
force against Plaintiff and others. (Id. at ¶ 36.) The Complaint alleges that the Mayor of the City
of Long Branch, Adams Schneider, is the chief policy maker for the City of Long Branch, and he
is sued in his official and individual capacities. Plaintiff has also sued the Long Branch Police
Director, Jason Roebuck, in his official and individual capacities, but the Complaint does not
allege that he was a policymaker for the City of Long Branch or otherwise explain his
involvement in the alleged violations.

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6.

Finally, the Complaint alleges that the City of Long Branch and the Officer

Defendants “used [the] criminal process against [P]laintiff in order to intimidate [P]laintiff and
dissuade [P]laintiff from asserting [P]laintiff’s rights against [D]efendants and in order to cover
up their own wrongdoing and avoid civil and criminal liability for their own acts.” (Id. at ¶ 82.)
7.

Having screened the Complaint, the Court determines that the Complaint should

not be dismissed in its entirety at this time. The Court, however, dismisses with prejudice
Plaintiff’s section 1983 claims against the City of Long Branch to the extent they are premised
on respondeat superior. Although local governments are “persons” for purposes of § 1983, a
municipality generally cannot be held liable in a § 1983 action for the acts of employees under
the principle of respondeat superior. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91
(1978). An exception exists when an official municipal “policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official policy,” is the
cause of the constitutional deprivation. Monell, 436 U.S. at 694. “The ‘official policy’
requirement was intended to distinguish acts of the municipality from acts of employees of the
municipality, and thereby make clear that municipal liability is limited to action for which the
municipality is actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986).
Here, with respect to his section 1983 claims against the City of Long Branch, Plaintiff appears
to allege liability based on policy or custom and respondeat superior. (See Compl. at Counts XI
and XII.) The Court permits the policy/practice claims to proceed at this time but dismisses the
1983 claims against the City of Long Branch to the extent they are based on respondeat superior.
8.

The Court also dismisses the official capacity claims against Mayor Schneider

and Director Roebuck as duplicative of the claims against the City of Long Branch.
“Personalcapacity damage suits under section 1983 seek to recover money from a government
official, as an individual, for acts performed under color of state law. Official-capacity suits, in
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contrast, generally represent only another way of pleading an action against an entity of which an
officer is an agent.” Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988); Monell, 436 U.S. at
690 n. 55; see also Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“Official-capacity suits ...
‘generally represent only another way of pleading an action against an entity of which an officer
is an agent.’”); Sutton v. City of Philadelphia, 21 F. Supp.3d 474, 493 (E.D. Pa. 2014) (“A suit
against an individual in his or her official capacity ‘is not a suit against the official, but rather a
suit against the official's office.’” (citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989) and Kentucky, 473 U.S. at 165). Here, Plaintiff has pleaded official policy claims against
the City of Long Branch and has named the City of Long Branch as a Defendant. As such, these
same claims asserted against Mayor Adams Schneider and Director Roebuck in their official
capacity are dismissed as duplicative.
9.

The Court also dismisses without prejudice the individual capacity section 1983

claims against Mayor Schneider and Director Roebuck because Plaintiff has failed to allege that
these Defendants were personally involved in the alleged constitutional violations. See Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (“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.”) (citing Parratt v. Taylor, 451 U.S. 527, 537 n. 3 (1981)).
10.

The Court also dismisses without prejudice the abuse of process and malicious

prosecution claims alleged in Count XVIII for failure to plead the element of favorable
termination. To prevail in a Section 1983 malicious prosecution action, a plaintiff must show:
(1)

the defendants initiated a criminal proceeding;

(2)

the criminal proceeding ended in the plaintiff's favor;

(3)
the proceeding was initiated without probable cause;
(4)
the defendants acted maliciously or for a purpose other than
bringing the plaintiff to justice; and
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(5)
the plaintiff suffered a deprivation of liberty consistent with
the concept of seizure as a consequence of a legal proceeding.
Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003). Here, the Court need not assess
whether Plaintiff’s Complaint has adequately pleaded all the elements of malicious prosecution
because Plaintiff’s Complaint has not pleaded that the criminal action was resolved in his favor.
The “favorable termination requirement . . . exists ‘to avoid ‘the possibility of the claimant [sic]
succeeding in the tort action after having been convicted in the underlying criminal prosecution,
in contravention of a strong judicial policy against the creation of two conflicting resolutions
arising out of the same or identical transaction.’” Malcomb v. McKean, 535 F. App’x 184, 186
(3d Cir. 2013) (citing Kossler v. Crisanti, 564 F.3d 181, 187 (3d Cir. 2009) (alteration in
original) (quoting Heck v. Humphrey, 512 U.S. 477, 484 (1994)). To avoid such a conflicting
outcome, the prior disposition of the criminal case must show “the innocence of the accused.”
Id; see also Kossler, 564 F.3d at 188 (no favorable termination where the acquittal on one charge
was accompanied by a conviction on a contemporaneous charge in the same proceeding based on
the same facts). Plaintiff’s section 1983 claim for malicious abuse of process is likewise subject
to dismissal without prejudice for failure to plead the element of favorable termination. The
elements of a section 1983 claim for malicious abuse of process are drawn from the relevant
state’s law. As explained by the Third Circuit,
We have held that “a claim of malicious use of process may state a
Section 1983 claim if it includes the elements of that common law
tort as it has developed.” McArdle v. Tronetti, 961 F.2d 1083, 1088
(3d Cir.1992). Accordingly, we are guided by the relevant
decisions of the New Jersey state courts, which hold that a plaintiff
asserting a malicious use of process claim must show that: (1) a[n]
... action was instituted by this defendant against this plaintiff; (2)
the action was motivated by malice; (3) there was an absence of
probable cause to prosecute; ... (4) the action was terminated
favorably to the plaintiff; ... [and (5) ] the plaintiff has suffered a

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special grievance caused by the institution of the underlying civil
claim.
Dunne v. Twp. of Springfield, 500 F. App'x 136, 138 (3d Cir. 2012) (citing LoBiondo v.
Schwartz, 199 N.J. 62, 970 A.2d 1007, 1022–23 (2009)). Like his malicious prosecution claim,
Plaintiff’s claim for malicious abuse of process is dismissed without prejudice at this time
because he fails to allege that the criminal action against him terminated in his favor.
11.

The Court also dismisses without prejudice Plaintiff’s state law claims for

intentional infliction of emotional distress as alleged in Counts IX and X. A claim of intentional
infliction of emotional distress requires a plaintiff to plead intentional and outrageous conduct by
the defendant, proximate cause, and distress that is severe. Buckley v. Trenton Sav. Fund Soc'y,
111 N.J. 355, 366 (N.J. 1988). “The New Jersey Supreme Court has said that ‘the emotional
distress suffered by the plaintiff must be so severe that no reasonable man could be expected to
endure it.’” Esposito v. Little Egg Harbor Tp., CIV.A. 08-3725 FLW, 2012 WL 1495468, at *7
(D.N.J. Apr. 27, 2012) (citing Buckley, 111 N.J. at 366 (N.J. 1988). Here, Plaintiff has not
provided any facts suggesting that the alleged use of excessive force by the Officers or any
conduct by the City of Long Branch caused him emotional distress that was “so severe that no
reasonable man could be expected to endure it.”
IT IS therefore on this 30th day of March, 2016,
ORDERED that the section 1983 claims against the City of Long Branch that are
premised on respondeat superior liability are dismissed WITH PREJUDICE; and it is further
ORDERED that the official capacity section 1983 claims against Mayor Adams
Schneider and Director Jason Roebuck are dismissed as duplicative of the claims against the City
of Long Branch; and it is further
ORDERED that the individual capacity section 1983 claims against Mayor Adams
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Schneider and Director Jason Roebuck are dismissed WITHOUT PREJUDICE for failure to
allege the requisite personal involvement; and it is further
ORDERED that the section 1983 claims for abuse of process and malicious prosecution,
and the state law claim for intentional infliction of emotional distress are dismissed WITHOUT
PREJUDICE for failure to state a claim; and it is further
ORDERED that the remaining claims alleged in the Complaint shall PROCEED at this
time; and it is further
ORDERED that, the Clerk shall mail to Plaintiff a transmittal letter explaining the
procedure for completing Unites States Marshal (“Marshal”) 285 Forms (“USM-285 Forms”);
and it is further
ORDERED that, once the Marshal receives the USM-285 Form(s) from Plaintiff and the
Marshal so alerts the Clerk, the Clerk shall issue summons in connection with each USM-285
Form that has been submitted by Plaintiff, and the Marshal shall serve summons, the Complaint
and this Order to the address specified on each USM-285 Form, with all costs of service
advanced by the United States 1; and it is further
ORDERED that Defendant(s) shall file and serve a responsive pleading within the time
specified by Federal Rule of Civil Procedure 12; and it is further

1

Alternatively, the U.S. Marshal may notify Defendant(s) that an action has been commenced

and request that the defendant(s) waive personal service of a summons in accordance with Fed.
R. Civ. P. 4(d).

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ORDERED that, pursuant to 28 U.S.C. § 1915(e)(1) and § 4(a) of Appendix H of the
Local Civil Rules, the Clerk shall notify Plaintiff of the opportunity to apply in writing to the
assigned judge for the appointment of pro bono counsel; and it is further
ORDERED that, if at any time prior to the filing of a notice of appearance by
Defendant(s), Plaintiff seeks the appointment of pro bono counsel or other relief, pursuant to
Fed. R. Civ. P. 5(a) and (d), Plaintiff shall (1) serve a copy of the application by regular mail
upon each party at his last known address and (2) file a Certificate of Service 2; and it is further
ORDERED that the Clerk of the Court shall serve Plaintiff with copies of this
Memorandum and Order via regular mail.

/s/ Freda L. Wolfson
Freda L. Wolfson
United States District Judge

2

After an attorney files a notice of appearance on behalf of a Defendant, the attorney will
automatically be electronically served all documents that are filed in the case.
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