BRANDT v. THURING et al

Filing 42

OPINION filed. Signed by Judge Freda L. Wolfson on 3/29/2019. (km)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
:
JOHN BRANDT,
Plaintiff,
vs.

:

Civil Action No.:16-8792(FLW)
OPINION

:
:

ROBERT THURING, et al.,
Defendants.

:
:

_________________________________:
WOLFSON, United States District Judge:

Presently before the Court are two separate unopposed 1 motions
to dismiss pro se Plaintiff’s claims by defendants: 1) Wal-Mart
Stores East, LP (“Walmart”); 2 and 2) Officers Robert Thuring and
Chris Williams, the East Brunswick Police Department, the Township
of East Brunswick (the “Township”), 3 Chief of Police James Conroy,
and Internal Affairs investigator Sean Goggins (the “Municipal
Defendants”)(together with Walmart, “Defendants”).

Plaintiff’s

1

The Court sent a Letter, dated January 7, 2019, to pro se
plaintiff John Brandt (“Plaintiff”) notifying Plaintiff that two
motions to dismiss were pending and that no opposition papers had
been received. Plaintiff never responded to the Court’s
correspondence, or otherwise submitted any opposition to the
motions. Therefore, as the Court indicated in the Letter, these
motions will be considered unopposed.
2

Improperly pled as Wal-Mart Stores, Inc. Plaintiff also names
as a defendant Cristian Zeas, who was a former Walmart loss
prevention employee. However, it does not appear that Zeas has
been served with process or otherwise appeared in this action.
3

Improperly pled as Municipality of East Brunswick.

claims arise out of an alleged shoplifting incident at a Walmart
store.

In his Complaint, Plaintiff avers that Defendants’ joint

and concerted conduct violated his First, Fourth and Fourteenth
Amendment rights by falsely detaining him.
that

Officers

Williams

committed

Plaintiff also alleges

assault

during

Plaintiff’s

detention, and that the Officers retaliated against him as a result
of the shoplifting incident.
For the reasons that follow, the Court GRANTS Walmart’s motion
to dismiss; and the Municipal Defendants’ motion to dismiss is
GRANTED in part and DENIED in part. All claims are dismissed, with
the

exception

of

Count

Williams and Thuring.

III

for

retaliation

That claim may proceed.

against

Officers

However, Plaintiff

must respond, in writing, within 15 days from the date of the Order
accompanying this Opinion why the surviving claim should not be
dismissed for failure to prosecute.
BACKGROUND AND PROCEDURAL HISTORY
For the purposes of these motions, the following version of
events assumes Plaintiff's factual allegations as true.

Plaintiff

alleges that on December 8, 2015, at 2:00 am, Zeas, a Loss
Prevention

Officer

(“LPO”)

at

the

East

Brunswick

Walmart,

apprehended and detained Plaintiff without reasonable grounds for
doing so. (Compl., ¶¶ 13 – 14.)

Plaintiff states that when he was

approached by Zeas, he and his female companion were paying for an
item at the cash register. (Id. at ¶ 13.)
2

Plaintiff avers that he

and his companion were confined in Walmart’s “holding pen,” accused
of shoplifting and were not permitted to leave. Id. When Plaintiff
denied involvement in shoplifting, Plaintiff was allegedly told by
the LPO that charges would be brought if he did not cooperate.
(Id. at ¶ 15.) After refusing to cooperate, Zeas called the East
Brunswick Police Department, and thereafter, Officers Thuring and
Williams arrived at the store.
Plaintiff

alleges

that

the

Officers

did

not

perform

an

independent investigation regarding the shoplifting accusations,
but rather, relied on the false information given by the LPO. (Id.
at ¶¶ 15-16.)

Plaintiff claims that the Officers did not review

any video footage, and attempted to coerce Plaintiff to confess.
(Id. at ¶ 17.)

Plaintiff further claims that the Officers and

Walmart had a “prearranged plan” to use coercive interrogating
tactics, such as fear and intimidation, to obtain incriminating
evidence against Plaintiff. (Id. at ¶ 18.) In that connection,
Plaintiff avers that, in an effort to intimidate, Officer Williams
“balled his fist up as if he was about to punch [P]laintiff,” in
order to force a confession. (Id. at ¶¶ 20-21.)

Plaintiff alleges

that he was detained by Defendants for a significant period of
time, albeit Plaintiff never set forth how long he was in the
“holding pen.”

(Id. at ¶ 23.)

3

Plaintiff avers that he was

ultimately “coerced” to sign a document agreeing never to return
to the Walmart store in East Brunswick. 4

(Id.)

According to Plaintiff, the harassment by East Brunswick
police continued after the alleged shoplifting incident.

A few

weeks later, Plaintiff received two traffic summonses in the mail
charged by Officer Thuring with having tinted windows in violation
of N.J.S.A. 39:3-75, and improper use of horn in violation of
N.J.S.A. 3:3-69. (Id. at ¶ 25.)

However, Plaintiff does not

elaborate on how these tickets came about.

Rather, Plaintiff

alleges that the Officers 5 never inquired whether he was permitted
to have tinted windows before issuing the tickets.

(Id.)

Indeed,

Plaintiff maintains that he was permitted to drive with window
tints by the N.J. Motor Vehicle Commission on account of a medical
condition of photosensitivity to light as a result of hyperthyroidism.

(Id.).

Furthermore,

Plaintiff

alleges

that

the

4

According to Plaintiff, Officer Thuring wrote a report of the
Walmart incident, explaining that a surveillance video showed that
Plaintiff’s female companion removed a cell phone case from its
packaging, and she could be seen giving the cell phone case to
Plaintiff. (Compl., ¶ 28.) Plaintiff denies this summary of the
video surveillance, and claims that both Officers falsely reported
the incident in the police report. (Id. at ¶ 29.)
5

While Plaintiff alleges that the tickets were signed by
Officer Thuring, throughout the Complaint, he alleges that both
Officers were involved in the issuance of the tickets. Plaintiff
does not attach a copy of the summonses to the Complaint. Without
them, the Court cannot discern which officer was personally
involved, or both. As such, at this stage, I will refer to both
Officers when discussing Plaintiff’s retaliation claim.
4

Officers fabricated a story that Plaintiff drove his vehicle up
Route 18 and blew his horn multiple times for no reason. (Id. at
¶ 26.)

These tickets, Plaintiff submits, were issued to retaliate

against him for the incident that occurred at Walmart. 6 (Id.)
According to Plaintiff, an internal investigation of the
alleged false police report was conducted by Lieutenant Goggins,
who was an internal affairs officer of the East Brunswick Police
Department.

(Id. at ¶ 30.)

Plaintiff claims that despite such an

investigation, no discipline was ever brought against Officer
Thuring or Williams.

Plaintiff also claims that Chief Conroy did

not properly train the Officers on “not to substitute their own
judgment of probable cause or if they have reasonable grounds to
detain a shoplifter with that of a merchant . . . .”

(Id. at ¶

32.)
Plaintiff filed the instant Complaint asserting the following
Counts:

6

Apparently, both charges were tried in Municipal Court in
Metuchen, New Jersey, before a Municipal Court Judge, because of
conflict issues arising out of this case. Plaintiff was found
guilty on all counts. While Plaintiff did not include this fact
in his Complaint, the Municipal Defendants, along with their moving
brief, submitted a transcript of the trial. Indeed, this case was
administratively
terminated
pending
that
municipal
court
proceeding. Now that it has concluded, I can consider the trial
transcript because it is undisputedly a public document. See
Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group,
Ltd., 181 F.3d 410, 426 n.7 (3d Cir. 1999). To be sure, however,
for the purposes of this Opinion, I am not relying on the truth of
the facts contained in the transcript. Id.
5

•

Count

I

asserts

a

claim

for

“wrongful

detention

imprisonment” under § 1983 against all defendants.
regard,

Plaintiff

alleges

that

Walmart

and

and

In that

the

East

Brunswick Police Department operated “a joint venture,”
the purpose of which is to illegally detain and imprison
Plaintiff
grounds.”
•

“without

(Comp.,¶ 42.)

Count

II

is

any

entitled

probable

“Civil

cause

Assault

or

by

reasonable

Officer

Chris

Williams.” Plaintiff alleges that Chris Williams committed
civil

assault

by

“balling

his

fist

up

during

interrogation and placing Plaintiff in fear of
harm.”

(Id. at ¶ 44.)

“[a]ll

defendants

the

bodily

Plaintiff goes on to allege that

participated

by

their

support

and

physical presence in the civil assault . . . in violation
of the Due Process Clause of the Fourteenth Amendment of
the U.S. Constitution.”
•

(Id.)

Count III involves Plaintiff’s accusation of retaliation
by

Officers

Thuring

and

Williams.

In

that

regard,

Plaintiff alleges that the Officers falsely issued two
traffic tickets without probable cause in retaliation for
Plaintiff’s
incident;

conduct
this

type

during
of

the

retaliation,

violated his First Amendment rights.

6

alleged
says

shoplifting
Plaintiff,

(Id. at ¶ 45.)

•

Count IV is asserted against the East Brunswick Police
Department.

It appears Plaintiff seeks to bring a Monell 7

claim against the Department for failure to train and
supervise,

and

failing

“to

discourage

further

constitutional violations of the officers . . . .”

(Id.

at ¶ 46.)
In the instant matters, Walmart and the Municipal Defendants
move separately to dismiss Plaintiff’s Complaint.

As I have noted

earlier in this Opinion, Plaintiff has failed to oppose these
motions, even after this Court sent a Notice informing Plaintiff
that these motions have been pending.

Indeed, while Plaintiff has

participated in this litigation prior to motion practice, it
appears he has now chosen to abandon prosecution of his claims.
In

fact,

Plaintiff

has

not

communicated

with

the

Court,

or

otherwise appeared in this case since the matter was reopened in
June

2018,

resolved.

after

Plaintiff’s

municipal

court

charges

were

Regardless, it is incumbent upon this Court to resolve

Defendants’ motions on the merits.
DISCUSSION
I.

Standard of Review
Under Fed. R. Civ. P. 12(b)(6), a complaint may be dismissed

for “failure to state a claim upon which relief can be granted.”

7

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
7

Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss on
the pleadings, courts “accept all factual allegations as true,
construe

the

complaint

in

the

light

most

favorable

to

the

plaintiff, and determine whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.” Phillips
v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citations
and

quotations

omitted).

Under

such

a

standard,

the

factual

allegations set forth in a complaint “must be enough to raise a
right to relief above the speculative level.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). Indeed, “the tenet that a
court must accept as true all of the allegations contained in a
complaint

is

inapplicable

to

legal

conclusions.”

Ashcroft

v.

Iqbal, 556 U.S. 662, 678 (2009). “[A] complaint must do more than
allege the plaintiff's entitlement to relief . . . [a] complaint
has to ‘show’ such an entitlement with its facts.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
However, Rule 12(b)(6) only requires a “short and plain
statement of the claim showing that the pleader is entitled to
relief” in order to “give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests.” Twombly, 550
U.S. at 555. The complaint must include “enough factual matter
(taken as true) to suggest the required element. This does not
impose a probability requirement at the pleading stage, but instead
simply calls for enough facts to raise a reasonable expectation
8

that discovery will reveal evidence of the necessary element.”
Phillips, 515 F.3d at 234 (citations and quotations omitted);
Covington v. Int'l Ass'n of Approved Basketball Officials, 710
F.3d 114, 118 (3d Cir. 2013) (“[A] claimant does not have to set
out in detail the facts upon which he bases his claim. The pleading
standard is not akin to a probability requirement; to survive a
motion to dismiss, a complaint merely has to state a plausible
claim for relief.” (citations and quotations omitted)).
In sum, under the current pleading regime, when a court
considers a dismissal motion, three sequential steps must be taken:
first, “it must take note of the elements the plaintiff must plead
to state a claim.” Connelly v. Lane Constr. Corp., 2016 U.S. App.
LEXIS 366, at *10 (3d Cir. Jan. 11, 2016) (citations and quotations
omitted).

Next,

the

court

“should

identify

allegations

that,

because they are no more than conclusions, are not entitled to the
assumption of truth.” Id. (citations and quotations omitted).
Lastly, “when there are well-pleaded factual allegations, the
court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id. at *10-11
(citations, quotations, and brackets omitted).
Plaintiff

in

this

matter

is

proceeding,

pro

se.

“The

obligation to liberally construe a pro se litigant's pleadings is
well-established.” Higgs v. Atty. Gen. of the U.S., 655 F.3d 333,
339 (3d Cir. 2011) (citing Estelle v. Gamble, 429 U.S. 97, 106
9

(1976)).

“Courts

are

to

construe

complaints

so

‘as

to

do

substantial justice,’ Fed. R. Civ. P. 8(f), keeping in mind that
pro se complaints in particular should be construed liberally.”
Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004). “Liberal
construction does not, however, require the Court to credit a pro
se plaintiff’s ‘bald assertions’ or ‘legal conclusions.’” Grohs v.
Yatauro, 984 F. Supp. 2d 273, 282 (D.N.J. 2013) (quoting Morse v.
Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Also,
“there are limits to [the courts'] . . . flexibility . . . . [P]ro
se litigants still must allege sufficient facts in their complaints
to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239,
245, 58 V.I. 691 (3d Cir. 2013). “Even a pro se complaint may be
dismissed for failure to state a claim if the allegations set forth
by the plaintiff cannot be construed as supplying facts to support
a claim entitling the plaintiff to relief.” Grohs, 984 F. Supp. 2d
at 282 (citing Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir.
1981)).
II.

Count I
As an initial matter, while Plaintiff names as defendants

Chief Conroy and Sergeant Goggins, he has not asserted any specific
claims against them.

Importantly, defendants Conroy and Goggins

were not present during the subject incident.
generally

accuses

these

individual

Although Plaintiff

defendants

of

failing

to

perform certain tasks, nowhere in the causes of action portion of
10

the Complaint does Plaintiff identify these specific defendants,
or assert any claims against them.

Notwithstanding the fact that

Plaintiff is pro se and that the Court is obligated to construe
Plaintiff’s Complaint liberally, under the pleading requirements
Plaintiff is, just like any other litigants, responsible to allege
sufficient factual allegations to state a claim, and identify which
claims

are

asserted

as

to

each

defendant. 8

See

Hamilton

v.

Jamieson, 355 F. Supp. 290, 298 (E.D. Pa. 1973)(“We are not
required to stretch our imagination to manufacture allegations to
supplement the complaint . . . .”); Cassell v. Cty. of Montgomery,
No. 17-1077, 2017 U.S. Dist. LEXIS 95182, at *27 (E.D Pa. Jun. 20,
2017)(“pro se litigants must nevertheless adhere to basic pleading
requirements”); Case v. State Farm Mut. Auto. Ins. Co., 294 F.2d
676, 678 (5th Cir. 1961)(“[T]here is no duty [on the part] of the
trial court or appellate court to create a claim which appellant
has not spelled out in his pleading.”).

Accordingly, because the

Court cannot discern any causes of action against Chief Conroy or
Sergeant Goggins, they are dismissed as defendants.

8

I note that in the Complaint, Plaintiff asserts Counts I and
II against all defendants, including Chief Conroy and Sergeant
Goggins. However, because these two defendants were not personally
involved in the detainment of Plaintiff, those § 1983 claims cannot
be lodged against them. See Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988).
11

As to Count I, Plaintiff alleges that Defendants were acting
under the color of state law when they unlawfully detained him at
the Walmart store, and in that regard, Plaintiff claims that
Defendants violated his constitutional rights.
Section 1983 provides, in pertinent part, that:
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.
42 U.S.C. § 1983.
To state a claim for relief under Section 1983, a plaintiff
must

allege:

(1)

the

violation

of

a

right

protected

by

the

Constitution or laws of the United States; and (2) that the alleged
deprivation was committed or caused by a person acting under color
of state law. See Harvey v. Plains Twp. Police Dep’t, 635 F.3d
606, 609 (3d Cir. 2011); see also West v. Atkins, 487 U.S. 42, 48
(1988). The law provides citizens with “an avenue of recovery for
the

deprivation

of

established

federal

constitutional

and

statutory rights.” Salley v. Rodriguez, No. 07–4914, 2008 WL 65106
at

*

4

(D.N.J.

Manalapan, 47

F.3d

Jan.4,
628,

2008); see
633

(3d.

also Groman
Cir.1995).

v.

“[T]he

Twp.

of

essence

of section 1983's color of law requirement is that the alleged
offender, in committing the act complained of, abused a power or
12

position granted by the state.” Hill v. Borough of Kutztown, 455
F.3d 225, 241 (3d Cir. 2006) (quoting Bonenberger v. Plymouth
Twp., 132 F.3d 20, 24 (3d Cir.1997)).
In order to establish the color of state law element, a
plaintiff must demonstrate that “there is such a ‘close nexus’
between the State and challenged action that private behavior may
be fairly treated as that of the State itself.” Brentwood Acad. v.
Tennessee

Secondary

Sch., 531

U.S.

288,

295

(2001)

(citation

omitted).

“A private action is not converted into one under color

of state law merely by some tenuous connection to state action.”
Gorman, 47 F.3d at 638.

Importantly, the color of state law

element is a threshold issue; there is no liability under § 1983
for those not acting under the color of state law.
A.

Id.

Walmart

In the instant matter, Plaintiff merely restates § 1983’s
language in his Complaint, that “[e]ach and all acts . . . was
done by the defendants under ‘color of state law”’ when they
violated Plaintiff's fundamentally secured rights and committed
criminal acts against him.”

Compl., ¶ Intro.

As a threshold

matter, to establish that Walmart is a state actor, Plaintiff
alleges that Walmart and the Officers, “operating in a joint
venture,” “illegally detained and imprisoned the plaintiff without
any probable cause or reasonable grounds.”

13

Id. at ¶ 42.

Under the New Jersey Shoplifting Act (“NJSA”), a merchant or
police officer has a statutory right to detain a person suspected
of shoplifting. N.J.S.A. 2C:20-11. The NJSA provides in relevant
part:
A law enforcement officer, or a special officer, or a
merchant, who has probable cause for believing that a
person has willfully concealed unpurchased merchandise
and that he can recover the merchandise by taking the
person into custody, may, for the purpose of attempting
to effect recovery thereof, take the person into custody
and detain him in a reasonable manner for not more than
a reasonable time… Any law enforcement officer may
arrest without warrant any person he has probable cause
for believing has committed the offense of shoplifting…
N.J.S.A. 2C:20-11(e).

Under the plain language of the Act, “[t]he

statute permits detention in a reasonable manner for the purpose
of recovering unpurchased merchandise. The statute [also] permits
the merchant to act for his own benefit, but it does not compel
the merchant to detain a suspected shoplifter and does not make
the merchant an arm of the state concerned generally with enforcing
the state's laws.” Gipson v. Supermarkets Gen. Corp., 564 F. Supp.
50, 55 (D.N.J. 1983).
In the context of a detainment by a merchant due to suspected
shoplifting, the Third Circuit has held that store employees acting
pursuant to a merchant’s statute, such as N.J.S.A. 2C:20-11, cannot
properly be found to have “acted under color of State law” unless
(1) the police have a pre-arranged plan with the store by which
the police substitute the judgment of the private parties for their

14

own official authority; and (2) under that plan, the police will
arrest anyone identified as a shoplifter by the store without
independently evaluating the presence of probable cause.
Melchoionda, 727F.2d 79, 81 (3d Cir. 1984).

Cruz v.

However, merely

calling the police or reporting criminal activity is not sufficient
to allege a private actor acted under the color of state law.

See,

e.g., Lawson v. Rite Aid of Pennsylvania, Inc., No. 04-1139, 2006
U.S. Dist. LEXIS 51829, at *12 (E.D. Pa. Jul. 26, 2006).

Rather,

there may be a finding of state action when the store employee,
for example, is given authority to actually make arrests.

DeCarlo

v. Joseph Horne Co., 251 F. Supp. 935 (W.D. Pa.1966).
Here, the gist of Plaintiff’s allegation regarding Walmart
and

the

police

officers’

“joint

venture”

theory

is

that

the

Officers failed to conduct their own investigation and improperly
relied upon Walmart’s loss prevention employees’ assertion that
Plaintiff shoplifted.

Those conclusory allegations are the sum

total of Plaintiff’s theory of state action.

But, simply claiming

that the store had a pre-arranged plan with the Officers does not
satisfy

the

Twombly

pleading

requirement.

Other

than

his

conclusory label, Plaintiff has not alleged any facts from which
an inference could be made that a pre-arranged plan between Walmart
and the police existed.

Moreover, while Plaintiff, on one hand,

alleges that Officers Williams and Thuring did not investigate the
alleged

shoplifting,

elsewhere
15

in

Plaintiff’s

Complaint,

he

alleges that a police report was issued, and that report indicates
that the Officers had in fact reviewed Walmart’s surveillance tape.
In fact, the Officers reported that they, after reviewing the
video, “observed” shoplifting activity by Plaintiff and his female
companion.

Compl., ¶ 28.

Indeed, Plaintiff’s own allegations

belie his assertion that the police conducted no investigation
whatsoever and substituted their own judgment with that of the
Walmart employees.

In any event, Plaintiff does not even allege

that he was arrested as a result of the shoplifting incident.
Thus, I find that Plaintiff’s allegations do not allege a
relationship, let alone a “close nexus,” between the store and any
governmental agency or official. Instead, Plaintiff simply states
that Walmart and the police “had a pre-arranged plan” and that the
police “relied upon the inaccurate version of facts to justify
detaining the plaintiff.”

Compl., ¶ 18. Moreover, Plaintiff

alleges no conduct on the part of Walmart that either resembles a
quasi-governmental function or rises to the level of state action.
Absent factual allegations tending to show a prearranged plan,
Walmart cannot be found to have “engaged in the ‘concert[ed]’ or
‘joint action’” with the police necessary to bring Walmart within
the scope of a § 1983 claim.
private

company

that

Cruz, 727 F.2d at 80.

follows

state

regulation

Instead, a
concerning

shoplifters is not transformed into a state actor for the purposes
of § 1983. Accordingly, because Plaintiff fails to properly allege
16

state action on the part of Walmart, Count I against Walmart is
dismissed.

B.

The Municipal Defendants

In addition, in Count I, Plaintiff alleges that the Municipal
Defendants

falsely

imprisoned

constitutional rights. 9

him

in

violation

of

his

However, because only Officers Williams

and Thuring were personally present at the time Plaintiff was
detained by Walmart employees, this cause of action can only be
asserted as to these two officers.

See Rode, 845 F.2d at 1207.

And, Plaintiff has failed to state a plausible claim of false
imprisonment against them.
A claim for false imprisonment can only be sustained under §
1983 when an officer lacks probable cause to detain an individual.
See O'Connor v. City of Philadelphia, 233 Fed. Appx. 161, 164 (3d
Cir. 2007); Adams v. Selhorst, 449 Fed. Appx. 198, 201 (3d Cir.
2011).

In other words, the existence of probable cause is a

9

Although Plaintiff lists violations under First, Fourth and
Fourteenth Amendments, the only claim the Court can discern from
Count I is false imprisonment. Indeed, Plaintiff titles Count I
as “Wrongful Detention and Imprisonment.”
17

complete defense to a claim of false imprisonment.
Conway, 836 F.3d 321, 327 (3d Cir. 2016). 10

Goodwin v.

Here, Plaintiff, in

conclusory fashion, alleges that the Officers did not have probable
cause to detain him.

However, as I indicated earlier, Plaintiff’s

own allegations contradict his bald assertion.
report,

Officer

Thuring

states

that

having

In the police

viewed

Walmart’s

surveillance video, he observed Plaintiff and his female friend
shoplift a “cell phone case” from the store. Id. at ¶ 28. Although
Plaintiff disputes what the video depicts, there is no allegation
that Officer Thuring misrepresented the fact that he reviewed the
video.

As such, based on Plaintiff’s own allegation, Officer

Thuring indeed had probable cause to detain Plaintiff.
But, even if the Officers did not obtain probable cause by
way of the video, they, nonetheless, are entitled to qualified
immunity on this claim, because they reasonably relied on the
version of events communicated to them by Walmart’s loss prevention
employees in obtaining probable cause.

Indeed, in the context of

false imprisonment, “the qualified immunity analysis turns on
whether the police officers reasonably but mistakenly concluded
that probable cause existed to arrest, detain and initiate the
criminal prosecution.” Palma v. Atlantic County, 53 F. Supp. 2d
743, 769 (D.N.J. 1999).

10

“Whether probable cause exists depends

I stress that Plaintiff was not arrested by the Officers.
18

upon the reasonable conclusion to be drawn from the facts known to
the arresting officer at the time of the arrest.” Devenpeck v.
Alford, 543 U.S. 146, 153 (2004).

In making such an inquiry,

courts must employ a “common sense approach.”

Paff v. Kaltenbach,

204 F.3d 425, 436 (3d Cir. 2000).
Here, I find that it was reasonable for the Officers to rely
upon the information given by Walmart’s LPOs, particularly since
there is no reasonable inference that this Court can draw from the
Complaint that the Officers had any reason to believe that the
information was somehow not reliable.

Thus, the Officers are

entitled to qualified immunity even if they were mistaken in
believing

that

they

had

probable

cause

to

detain

Plaintiff.

Accordingly, Count I against Officers Williams and Thuring is
dismissed with prejudice.
II.

Count II
In Count II of the Complaint, Plaintiff alleges that Officer

Williams “committed civil assault by balling his fist up during
the interrogation,” which placed Plaintiff in fear of bodily harm.
Compl., ¶ 44.

Plaintiff goes on to allege that “[a]ll defendants

participated by their support and physical presence,” in violation
of Plaintiff’s due process rights under the Fourteenth Amendment.
Id.
As an initial matter, while Plaintiff asserts Count II against
all defendants, the assault claim can only be asserted as to
19

Officer Williams, because he is the only person alleged to have
participated in the assault.

Next, Plaintiff alleges that his

constitutional right was violated under a “civil assault” theory;
however, there is no such cause of action arising under § 1983. 11
See Heilimann v. O’Brien, No. 14-1271, 2017 U.S. Dist. LEXIS 31885,
at *12 n.5 (M.D. Pa. Mar. 7, 2017)(finding that assault and battery
claims should properly be brought under state law).

Rather, I

construe Count II as an intentional tort of assault under state
law.

However, aside from the fact that Plaintiff has failed to

allege an assault claim, 12 Plaintiff has not alleged that he filed
a tort claims notice under the New Jersey Tort Claims Act (“TCA”),
N.J.S.A. § 59:8-3.

Indeed, the TCA bars suit on a claim “relating

to a cause of action for death or for injury or damage to person
or to property” if the claimant fails to present his notice of
claim to the entity within 90 days of accrual of his claim.

11

To be clear, nowhere in Plaintiff’s Complaint does he allege
the use of excessive force by any defendant.
12

In New Jersey, to establish a common law tort of assault, a
plaintiff must show that (1) the defendant acted with intention to
cause harm or offensive contact with the person, or an imminent
apprehension of such a contact, and (2) that the other is thereby
put in such imminent apprehension. See Leang v. Jersey City Bd. Of
Educ., 198 N.J. 557, 591 (2009) (citation omitted). Here, while
Plaintiff alleges that he was put in imminent apprehension,
Plaintiff fails to allege that Officer Williams had any “intention
to cause harm or offensive contact” with Plaintiff.
Rather,
Plaintiff simply alleges that Officer Williams “committed civil
assault by balling his fist.” Compl., ¶ 42. Plaintiff has failed
to allege that the Officer intended to cause any harm to Plaintiff.
20

N.J.S.A. 59:8-8. “The filing of a late notice of claim with an
entity without leave of court is a nullity and does not constitute
substantial compliance with the terms of N.J.S.A. 59:8-9.”

Rogers

v. Cape May Cty. Office of Pub. Def., 208 N.J. 414, 427 (2011).
Accordingly, Plaintiff’s assault claim (Count II) against
Officer Williams is dismissed without prejudice.

III. Count III
Plaintiff alleges in Count III that Officers Williams and
Thuring retaliated against him by issuing two traffic tickets.
Plaintiff claims that the motivation for the retaliation was bore
out of the Officers’ “failure to coercively force plaintiff to
admit to a crime he had no knowledge of or involvement.”

Compl.,

¶ 26.

In that regard, Plaintiff avers that he received the tickets

as

punishment

a

for

Plaintiff was detained.

criticizing

the

Officers’

conduct

when

Plaintiff also alleges that the Officers

were motivated to retaliate against Plaintiff because Plaintiff
gave them “the middle finger.”

These retaliatory acts, Plaintiff

says, violated his First Amendment right to free speech.
To establish the elements of a retaliation claim predicated
on the First Amendment under § 1983, a plaintiff must allege “(1)
that they engaged in a protected activity, (2) that defendants'
retaliatory action was sufficient to deter a person of ordinary
firmness from exercising his or her rights, and (3) that there was
21

a

causal

connection

between

the

protected

activity

and

the

retaliatory action.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480
F.3d 259, 267 (3d Cir. 2007).
First,
finger”

to

Plaintiff’s
the

Officers

allegation
arguably

that

he

gave

constitutes

activity, actionable under the First Amendment.

as

“the
a

middle

protected

See, e.g., Sandul

v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997); Duran v. City of
Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990); Nichols v. Chacon,
110 F. Supp. 2d 1099, 1102 (W.D. Ark. 2000); Brockway v. Shepherd,
942 F. Supp. 1012, 1015 (M.D. Pa. 1996).

As to the second element,

the issuance of traffic tickets may also arguably deter a person
of ordinary firmness from exercising his rights.

See, e.g., Born

v. Aberdeen Police Dep’t, No. 13-2963, 2014 U.S. Dist. LEXIS 74578,
at *16 (D.N.J. Jun. 2, 2014); Persaud v. McSorley, 275 F. Supp. 2d
490, 495 (S.D.N.Y. 2003); Garcia v. City of Trenton, 348 F.3d 726
(8th Cir. 2003); Cruise-Gulyas v. Minard, No. 19-43, 2019 U.S.
App. LEXIS 7369, at *6 (6th Cir. Mar. 13, 2019).
Finally, Plaintiff sufficiently alleges a causal connection.
To establish the requisite causation for a retaliation analysis,
the plaintiff may typically allege either an unusually suggestive
temporal proximity between the protected First Amendment conduct
and the allegedly retaliatory action, or a pattern of antagonism
coupled with timing.

See Lauren W. ex rel. Jean W. v. DeFlaminis,

480 F.3d 259, 267 (3d Cir. 2007).
22

Here, the issuance of the

traffic tickets to Plaintiff by the Officers immediately after the
shoplifting incident demonstrates an unusually suggestive temporal
proximity that satisfies the causal connection element at this
pleading stage.

See Rauser v. Horn, 241 F.3d 330, 334 (3d Cir.

2001)(recognizing that a plaintiff can defeat a motion for summary
judgment, let alone a motion to dismiss, in the First Amendment
retaliation context by showing a “suggestive temporal proximity”
between his or her constitutionally protected activity and the
adverse action alleged to have been retaliatory).
retaliation

claim

against

Officers

Williams

and

Therefore, the
Thruing

will

proceed, and the Municipal Defendants’ motion to dismiss as to
Count III is denied. 13
IV.

Count IV
It appears in Count IV, Plaintiff seeks to assert a Monell

claim

against

the

East

Brunswick

Police

Department.

As

a

preliminary matter, Plaintiff cannot bring a Monell claim directly
against

the

Police

Department,

because

a

municipal

police

department is not a separate entity from the municipality. See

13

The Municipal Defendants argue that Plaintiff’s retaliation
claim is barred by Heck v. Murphy, 512 U.S. 477 (1994), because
Plaintiff was convicted of the traffic charges in Municipal Court.
The Municipal Defendants misapply Heck.
Heck applies when a
judgment in favor of the plaintiff in a subsequent civil suit would
necessarily imply the invalidity of his conviction or sentence.
See Fernandez v. City of Elizabeth, 468 Fed. Appx. 150, 153-54 (3d
Cir. 2012). Here, however, a favorable judgment in Plaintiff’s
retaliation claim will in no way invalidate his conviction for
certain traffic offenses.
23

Woodyard v. County of Essex, 514 Fed. Appx. 177, 181 (3d Cir.
2013); Jackson v. City of Erie Police Dep't, 570 Fed. Appx. 112,
114 (3d Cir. 2014); see also Moore v. Carteret Police Dep't, No.
13-943, 2014 U.S. Dist. LEXIS 170256, at *25 (D.N.J. Dec. 8, 2014).
Accordingly, the East Brunswick Police Department is dismissed as
a defendant.
Nevertheless, because Plaintiff is pro se, the Court will
construe the Monell claim as having been asserted against the East
Brunswick Township.

Section 1983 imposes civil liability upon

“any person who, acting under the color of state law, deprives
another

individual

of

any

rights,

privileges,

or

immunities

secured by the Constitution or laws of the United States.” Padilla
v. Twp. of Cherry Hill, 110 Fed. Appx. 272, 278 (3d Cir.2004)
(citation omitted). Unlike unincorporated police departments or
municipal courts, municipalities are legal entities amenable to
suit for their unconstitutional policies or customs. Monell, 436
U.S. at 690. To recover against a municipality, a plaintiff must
“demonstrate that municipal policymakers, acting with deliberate
indifference or reckless indifference, established or maintained
a policy or well-settled custom which caused a municipal employee
to violate plaintiffs’ constitutional rights and that such policy
or custom was the ‘moving force’ behind the constitutional tort.”
Hansell v. City of Atlantic City, 152 F.Supp.2d 589, 609 (D.N.J.
2001).
24

Here, beyond Plaintiff allegation that the Township had a
policy or custom of inadequate training and/or investigation, the
Complaint does not “specify what exactly that custom or policy
was,” McTernan v. City of York, PA, 564 F.3d 636, 658 (3d Cir.
2009), assert
municipal

facts

policy

or

showing

a

custom

“direct

and

the

causal
alleged

link

between

a

constitutional

deprivation,” Jiminez v. All American Rathskeller, Inc., 503 F.3d
247, 249 (3d Cir. 2007) (internal quotations omitted), or “identify
specific

deficiencies

in

any

training

program

to

which

[the

Officers] might have responded.” Ianuale v. Borough of Keyport,
No. 16-9147, 2017 U.S. Dist. LEXIS 130467, at *3 (D.N.J. Aug. 16,
2017).

Thus, Plaintiff’s Monell claim against the Township is

dismissed without prejudice.
CONCLUSION
For the reasons set forth above, Walmart’s motion to dismiss
is GRANTED in its entirety, and the claims against Walmart are
dismissed without prejudice.

The Municipal Defendants’ motion to

dismiss is GRANTED in part and DENIED in part as follows: Count I,
i.e., §1983 false imprisonment, against Officers Williams and
Thuring is dismissed with prejudice; Count II, i.e., civil assault,
against Officer Williams is dismissed without prejudice; Count
III, i.e., retaliation, against Officers Williams and Thuring may
proceed, and Count IV, i.e., Monell claim, against the Township of

25

East Brunswick is dismissed without prejudice. Finally, Chief
Conroy and Sergeant Goggins are dismissed as defendants.
The Court acknowledges that Plaintiff has likely abandoned
his case.

In that regard, the Court also issues an Order to Show

Cause why the remaining claim in this case should not be dismissed
for lack of prosecution.

Plaintiff must respond, in writing, to

the Order to Show Cause within 15 days from the date of the Order
accompanying this Opinion.

Failure to respond by Plaintiff will

result in the dismissal of this matter.

DATED:

March 29, 2019

/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
U.S. District Judge

26