# TRAMAGLINI v. MARTIN

> District Court, D. New Jersey · September 9, 2019

URL: https://www.frixlaw.com/law-library/cases/10266994

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** September 9, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10266994

## How later opinions describe it (automated extraction)

- affirming dismissal because the complaint “fail[ed] to specify the relevant ‘custom’ or ‘policy’ . . . . [and instead] simply paraphrase[d] § 1983”
- finding that plaintiff’s “arrest and booking [which included a mug shot] were inconvenient and embarrassing to [plaintiff], but not so extraordinary as to violate the Fourth Amendment”
- finding dismissal appropriate where constitutional claim arose out of his mugshot

## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

THOMAS W. TRAMAGLINI,
Civ. No. 19-11915
Plaintiff,
OPINION
v.

PATROLMAN JONATHAN C. MARTIN
et al.,

Defendants.

THOMPSON, U.S.D.J.
INTRODUCTION
This matter comes before the Court upon the Motion to Dismiss brought by Defendants
Jonathan C. Martin, John Mioduszewski, and Holmdel Township (“Township Defendant”)
(collectively, “Defendants”). (ECF No. 5.) Plaintiff Thomas W. Tramaglini (“Plaintiff”)
opposes. (ECF No. 11.) The Court has decided the Motion based on the parties’ written
submissions and without oral argument, pursuant to Local Civil Rule 78.1(b). For the reasons
stated herein, the Motion is granted.
BACKGROUND
This action arises from the allegedly unlawful taking, and subsequent dissemination, of a
mugshot photograph. (See Compl. ¶ 1, ECF No. 1.) Right before dawn on May 1, 2018,
Plaintiff was exercising at the Holmdel High School Athletic Complex. (Id. ¶¶ 24–25.) At
around 5:50 AM, Defendant Martin, a police officer assigned as the School Resource Officer for
Holmdel Township High School, approached Plaintiff. (Id. ¶¶ 16, 24–25; Arrest Report at 1,
ECF No. 5-1.) The Complaint does not detail their conversation or why Defendant Martin
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approached Plaintiff, but Defendant Martin eventually requested that Plaintiff meet him at the
Holmdel Township Police Department; Plaintiff complied and drove his personal vehicle to the
station. (Compl. ¶¶ 25–27.)
Though the Complaint does not provide any more detail regarding what transpired on that

day, a subsequent court transcript, a public document permitted for purposes of this Motion, see
Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007) (finding no error where district court
referred to court transcript while resolving motion to dismiss), reveals a little more. Preceding
the May 1 incident, on several occasions, staff at the Holmdel High School had found feces in
various locations around the track and football field. (Sentencing Tr. 16, New Jersey v.
Tramaglini, N.J. Summons No. SC-2018-014654 (Holmdel Mun. Ct. Oct. 24, 2018), Ex. A, ECF
No. 14-1.) Defendant Martin, as a result, had commenced an investigation and set up
surveillance. (Id. at 16–17.) At about 5:30 AM on May 1, after finding fresh feces under the
bleachers near the track, Defendant Martin confronted Plaintiff, who was running around the
track at the time. (Id. at 17–18.) Plaintiff immediately apologized and explained that he had

“experience[d] the immediate and emergent need to defecate” while running and did so under the
bleachers. (Id. at 5 (Plaintiff’s allocution).)
Plaintiff was ultimately charged with three municipal offenses: (1) public
urination/defecation, (2) littering, and (3) lewdness. (Compl. ¶¶ 28, 44–45; Arrest Report at 2.)
Plaintiff was assigned Holmdel Township Police Department ID Booking Arrest No. 008978 and
photographed by Defendant Martin (the “Mug Shot”). (Compl. ¶¶ 30–33.) He was “not
arrested” so, presumably, he was allowed to go home after these booking measures were taken.
(See id. ¶¶ 39, 42.) Plaintiff eventually pleaded guilty to public defecation and paid a $500 fine;

2
the remaining charges were dropped pursuant to a plea agreement. (Id. ¶¶ 46–47; Holmdel Mun.
Ct. Dkt., ECF No. 5-1.)
The next day or so, on May 2 or 3, 2018, media outlets “around the world” began
reporting on Plaintiff’s public defecation charge and disseminating the associated Mug Shot.

(Compl. ¶¶ 34–38.) Plaintiff accuses Defendant Martin, the arresting officer, and Defendant
Mioduszewski, chief of Holmdel Township Police Department, of unlawfully disseminating the
Mug Shot. (Id. ¶¶ 17, 63, 68, 129, 133.) Plaintiff alleges that media outlets sensationalized, and
even falsely reported about, his charges. (Id. ¶¶ 40–42.) Plaintiff surmises that this media
coverage was fueled by the Mug Shot. (See id. ¶ 43.) As a result of the negative and
embarrassing media coverage, Plaintiff, a superintendent at a different school district at the time,
was forced to resign from his position. (See id. ¶¶ 15, 48–51.)
Plaintiff filed this action on April 30, 2019. (Id. ¶ 1.) The suit primarily centers on the
allegedly unlawful taking, and dissemination, of the Mug Shot and the damage that resulted from
it. Specifically, Plaintiff alleges eight counts: (1) violations of the Fourth, Fifth, and Sixth

Amendments via 42 U.S.C. § 1983 against Defendants Martin and Mioduszewski (Compl. ¶¶
54–77); (2) deliberately indifferent policies, practices, customs, training, and supervision in
violation of the Fourth, Fifth, and Sixth Amendments via § 1983 against Township Defendant
(Compl. ¶¶ 78–98); (3) negligent infliction of emotional distress against all Defendants (id. ¶¶
99–107); (4) intentional infliction of emotional distress against all Defendants (id. ¶¶ 108–16);
(5) negligent hiring, retention, training, and supervision against Defendant Mioduszewski and
Township Defendant (id. ¶¶ 117–22); (6) defamation against all Defendants (id. ¶¶ 123–27); (7)
false light and/or invasion of privacy against all Defendants (id. ¶¶ 128–31); and (8) intrusion of
seclusion against all Defendants (id. ¶¶ 132–35).
3
On June 21, 2019, Defendants filed the instant Motion to Dismiss. (ECF No. 5.) They
primarily argue that Plaintiff alleges only violations of state law and thus fails to state a claim for
any federal constitutional violation. (See Defs.’ Br. at 2–3, ECF No. 5-2.) Defendants ask for
dismissal of the only two federal § 1983 claims and, consequently, urge the Court to decline

exercising supplemental jurisdiction over the remaining state-law claims. (Id. at 18.) After two
extensions (ECF Nos. 6, 9), Plaintiff opposed the Motion on August 13, 2019 (ECF No. 11).
Defendants replied on August 23, 2019. (ECF No. 14.) The Motion to Dismiss is currently
before the Court.
LEGAL STANDARD
To survive dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012) (citing Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). When considering a Rule 12(b)(6) motion, a district court
should conduct a three-part analysis. Cf. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

“First, the court must ‘take note of the elements a plaintiff must plead to state a claim.’” Id.
(quoting Iqbal, 556 U.S. at 675). Second, the court must accept as true all well-pleaded factual
allegations and construe the complaint in the light most favorable to the plaintiff. Fowler v.
UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009); see also Connelly v. Lane Constr.
Corp., 809 F.3d 780, 786–87 (3d Cir. 2016). However, the court may disregard any conclusory
legal allegations. Fowler, 578 F.3d at 203. Finally, the court must determine whether the “facts
are sufficient to show that plaintiff has a ‘plausible claim for relief.’” Id. at 211 (quoting Iqbal,
556 U.S. at 679). A complaint which does not demonstrate more than a “mere possibility of
misconduct” must be dismissed. See Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187,
4
190 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679).
DISCUSSION
As a preliminary matter, Count I and II allege that Defendants violated the Fourth, Fifth,
and Sixth Amendments of the Constitution. (Compl. ¶¶ 59–61, 78–98.) However, the sparse

allegations in these counts lack any facts even suggesting that a Fourth or Sixth Amendment
violation occurred. Plaintiff fails to allege that he was seized unlawfully or that he was deprived
of an attorney; on the contrary, Plaintiff drove himself to the police station and was represented
by counsel during his proceedings. (See id. ¶ 27; Holmdel Mun. Ct. Dkt. (indicating attorney’s
appearance).) And save for one reference in his brief (see Pl.’s Br. at 7, ECF No. 11), Plaintiff
does not advance any argument in support of this kind of constitutional violation. The Court is
unable to, even interpreting the facts in the light most favorable to Plaintiff, deduce a Fourth or
Sixth Amendment violation. Accordingly, the Court focuses only on Plaintiff’s allegations that
Defendants contravened the Fifth or—as the Court construes for purposes of this Motion—the
Fourteenth Amendment.

I. Individual Liability under § 1983 (Count I)

Plaintiff’s constitutional claim arises under § 1983, which provides a civil remedy for the
“the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”
42 U.S.C. § 1983. “To state a claim [for individual liability] under section 1983, a plaintiff must
demonstrate that ‘some person has deprived him of a federal right . . . [and] that the person who
has deprived him of that right acted under color of state or territorial law.’” Halsey v. Pfeiffer,
750 F.3d 273, 290 (3d Cir. 2014) (emphasis added) (quoting Gomez v. Toledo, 446 U.S. 635, 640
(1980)). “Thus, to state a claim under § 1983, [the plaintiff] must indicate: (1) of what
constitutional or federal right he was deprived, and (2) how he was deprived of that right under
5
color of state law.” Gibson v. Superintendent of N.J. Dep’t of Law & Pub. Safety-Division of
State Police, 411 F.3d 427, 433 (3d Cir. 2005).
A. State-Law Violations
Defendants primarily argue that the source of Plaintiff’s constitutional claim—an alleged

violation of state law—cannot form the basis of a federal § 1983 claim. (Defs.’ Br. at 9.)
Indeed, Plaintiff alleges two state-law violations in the Complaint in support of his federal
constitutional claim:
Plaintiff had a clearly established right pursuant to N.J.S.A. [§] 53:1-15 and New
Jersey case law not to have [the Mug Shot] taken for alleged violations of non-
criminal Holmdel Municipal Ordinances. . . . [and] pursuant to New Jersey
Executive Order No. 69 (May 15, 1997) not to have [the Mug Shot] disseminated
and distributed to the public domain.

(Compl. ¶¶ 62–63; see also Pl.’s Br. at 10–13 (arguing that Defendants unlawfully took and
distributed the Mug Shot pursuant to state law).) N.J.S.A. § 53:1-15 provides that “law
enforcement agencies and officers shall, immediately upon the arrest of any person for an
indictable offense . . . or [upon] the conviction of any person charged with a nonindictable
offense . . . take the fingerprints of such person”; N.J. Executive Order No. 69 (May 15, 1997),
29 N.J.R. 2729(a), directs that “photographs and similar criminal investigation records,” among
other things, “shall not be deemed to be public records.”
By contending that Defendants unlawfully took and distributed the Mug Shot pursuant to
these two New Jersey laws in support of his § 1983 claim (see Pl.’s Br. at 10–13), Plaintiff seems
to conflate a state law violation with a federal constitutional violation. “New Jersey law,
however, is not determinative of the scope of the constitutional right of privacy.” Nunez v.
Pachman, 578 F.3d 228, 233 (3d Cir. 2009). Though these two bodies of law may overlap, they
do not do so necessarily.
6
Substantive due process rights are founded not upon state law but upon deeply
rooted notions of fundamental personal interests derived from the Constitution.
While state statutes and regulations may inform our judgement regarding the
scope of constitutional rights, they fall far short of the kind of proof necessary to
establish a reasonable expectation of privacy. Mere allegations that an official
failed to abide by state law will not suffice to state a constitutional claim. The
disclosed information itself must warrant constitutional protection.

Id. (internal citation marks omitted) (quoting Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir.
1995)); see also Scheetz v. Morning Call, Inc., 946 F.2d 202, 206 (3d Cir. 1991) (“[T]he question
of whether a federal constitutional right to privacy has been violated is a distinct question from
whether a . . . state common law right to privacy has been violated. . . . [C]ase law cited by the
parties as to [state] confidentiality law cannot control the federal constitutional right.” (emphasis
in original) (internal citations omitted)). It is therefore of no moment, for purposes of this claim,
whether Defendants violated N.J.S.A. § 53:1-15 or N.J. Executive Order No. 69.
B. Substantive Due Process
Though Defendants essentially interpret the Complaint as alleging only these state-law
violations, Plaintiff also pleads that Defendants violated his substantive due process rights
protected by the Fourteenth Amendment. (See Compl. ¶ 60 (alleging right not to be deprived of
life, liberty, or property without due process of law).) “[T]he touchstone of due process is
protection of the individual against arbitrary action of government, whether the fault lies in a
denial of fundamental procedural fairness or in the exercise of power without any reasonable
justification in the service of a legitimate governmental objective.” Cty. of Sacramento v. Lewis,
523 U.S. 833, 845–46 (1998) (internal citations omitted). To establish a substantive due process
claim, a plaintiff must prove that (1) “the particular interest at issue is protected by the
substantive due process clause,” and (2) “the government’s deprivation of that protected interest
shocks the conscience.” Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008)
7
1. Particular Interest at Issue
Although Plaintiff explicitly contends that the particular interest at issue in this case is a
property interest in his job and occupational license (see Pl.’s Br. at 14–15), Plaintiff also relies
on certain case law implicitly suggesting instead that a privacy interest is at issue (see id. at 15–

18). The Court therefore addresses whether Plaintiff states a cognizable constitutional claim
under either interest.
i. Property Interest
“[N]ot all property interests worthy of procedural due process protection are [also]
protected by the concept of substantive due process.” Nicholas v. Pa. State Univ., 227 F.3d 133,
139–40 (3d Cir. 2000) (quoting Reich v. Beharry, 883 F.2d 239, 243 (3d Cir. 1989)). “Rather, to
state a substantive due process claim, ‘a plaintiff must have been deprived of a particular quality
of property interest.’” Id. (quoting DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 598 (3d
Cir. 1995)). “To have a property interest in a job . . . a person must have more than a unilateral
expectation of continued employment; rather, she must have a legitimate entitlement to such

continued employment.” Hill v. Borough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006).
The decisional law is clear that an at-will employee does not have a legitimate
entitlement to continued employment because she serves solely at the pleasure of
her employer. Chabal v. Reagan, 841 F.2d 1216, 1223 (3d Cir. 1988). Therefore,
once a court determines that a public employee “held [her] position at the will and
pleasure of the [governmental entity],” such a finding “necessarily establishes that
[the employee] had no property interest” in the job sufficient to trigger due
process concerns. Bishop v. Wood, 426 U.S. 341, 346 n.8 (1976).

Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005).
Plaintiff advances two harms suffered here. He alleges that he “was forced to step down
from his position as the Superintendent of the Kenilworth Public Schools . . . due to the negative
media attention his case received as a direct consequence of [Defendants’] unlawful conduct.”
8
(Compl. ¶ 50.) Plaintiff also alleges in his papers, though not in the Complaint, that he now
“face[s] the loss of his occupational license.” (Pl.’s Br. at 14.)
However, neither interest is sufficient to state a claim for a substantive due process
violation. First, even ignoring the fact that Plaintiff did not allege in the Complaint that he

“face[s] the loss of his occupational license,” Plaintiff does not allege that he has already lost his
occupational license. Such hypothetical harms cannot be addressed by this Court. See Kamal v.
J. Crew Grp., Inc., 918 F.3d 102, 110 (3d Cir. 2019) (reiterating that “a plaintiff must allege ‘an
invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or
imminent, not conjectural or hypothetical’” (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
1548 (2016))). But more importantly, the Third Circuit has held that even a tenured
professorship at a state university—quite a far cry from a non-tenured superintendent—is not
afforded constitutional protection under substantive due process. See Nicholas, 227 F.3d at 142–
43 (explaining that “tenured public employment is a wholly state-created contract right; it bears
little resemblance to other rights and property interests that have been deemed fundamental

under the Constitution”).
The case law upon which Plaintiff relies is wholly inapposite. In Kane v. Barger, 902
F.3d 185, 188 (3d Cir. 2018), the plaintiff alleged that a police officer “violated her Fourteenth
Amendment right to bodily integrity by—in the course of purportedly interviewing her about her
alleged sexual assault—touching her and using his personal cell phone to photograph her
intimate areas”; in United States v. Guidry, 456 F.3d 493, 507 (5th Cir. 2006), the court found
sufficient evidence to support an officer’s violation of the substantive right to bodily integrity
where he sexually assaulted women-arrestees at the police station by “essentially barter[ing] for
the women’s freedom” with sexual favors; and in York v. Story, 324 F.2d 450, 454–55 (9th Cir.
9
1963), the court concluded that the plaintiff stated a claim under the substantive right to privacy
where police officers took and distributed photographs of plaintiff in the nude, emphasizing that
“[w]e cannot conceive of a more basic subject of privacy than the naked body.” The instant facts
pale in comparison to these wickedly salacious examples and thus fail to persuade the Court of
their utility here.1 Because a “federal court is not the appropriate forum in which to review the

multitude of personnel decisions that are made daily,” Nicholas, 227 F.3d at 143 (quoting
Bishop, 426 U.S. at 359–60), Plaintiff fails to state a cognizable claim for deprivation of a
property interest in his job pursuant to the Fourteenth Amendment.
ii. Privacy Interest
Though the “Constitution does not mention an explicit right to privacy,” the Supreme
Court has “found certain ‘zones of privacy’ in the amendments to the Constitution,” such as the
constitutional right of privacy rooted within the Due Process Clause’s concept of personal
liberty. Whalen v. Roe, 429 U.S. 589, 598 n.23 (1977); C.N. v. Ridgewood Bd. of Educ., 430
F.3d 159, 178 (3d Cir. 2005). And within that right is comprised “the individual interest in

avoiding disclosure of personal matters.” Whalen, 429 U.S. at 599.
“[T]he right not to have intimate facts concerning one’s life disclosed without one’s
consent. . . . is a venerable one whose constitutional significance we have recognized in the
past.” Bartnicki v. Vopper, 200 F.3d 109, 122 (3d Cir. 1999).
The touchstone of constitutional privacy protection is whether the information at
issue is “within an individual’s reasonable expectations of confidentiality.” The

1 The other string citation of case law, by Plaintiff’s own explanatory parentheticals, fail to
adequately compare to the facts at issue here. (See, e.g., Pl.’s Br. at 16–17 (citing case law
where officer “pursu[ed] a non-fleeing summary traffic offender at high speeds,” where officer
“left an intoxicated pedestrian alone to walk home on a cold night,” where officer “brandishe[d]
his gun 18 inches from person’s head with his wife present and threaten[ed] to shoot,” and where
officer “strip search[ed]” a prisoner).)
10
more intimate or personal the information, the more reasonable the expectation is
that it will remain confidential. Indeed, the “federal constitution . . . protects
against public disclosure [of] only highly personal matters representing the most
intimate aspects of human affairs,” thereby shielding from public scrutiny “only
that information which involves deeply rooted notions of fundamental personal
interests derived from the Constitution.”

Doe v. Luzerne Cty., 660 F.3d 169, 175–76 (3d Cir. 2011) (internal citations omitted). Courts
should consider:
the type of record requested, the information it does or might contain, the
potential for harm in any subsequent nonconsensual disclosure, the injury from
disclosure to the relationship in which the record was generated, the adequacy of
safeguards to prevent unauthorized disclosure, the degree of need for access, and
whether there is an express statutory mandate, articulated public policy, or other
recognizable public interest militating toward access.

Ridgewood Bd. of Educ., 430 F.3d at 179–80 (3d Cir. 2005) (quoting United States v.
Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir. 1980)).
Plaintiff’s alleged privacy interest here, concerning the Mug Shot, simply does not rise to
the level of implicating the substantive right to privacy warranting constitutional protection
under the Fourteenth Amendment. First, the disclosure of a mug shot itself does not reveal any
information that was not already public. A mug shot merely provides a visual of someone with
pending charges, and Plaintiff does not allege that his pending charges were nonpublic. Second,
a mug shot is not based in text. Its disclosure, without anything more, is less likely to facilitate
false or inaccurate reporting about the defendant or his pending charges. Third, a mug shot is not
the type of “highly personal matter[] representing the most intimate aspects of human affairs”
that historically has been protected by the Fourteenth Amendment. In contrast to the Mug Shot
here, the Third Circuit has found the following types of information to be constitutionally
protected: “a private employee’s medical information that was sought by the government;
medical, financial and behavioral information relevant to a police investigator; a public
11
employee’s prescription record; a minor student’s pregnancy status; sexual orientation; and an
inmate’s HIV-positive status.” Luzerne Cty., 660 F.3d at 176 (citing Malleus v. George, 641
F.3d 560, 564 (3d Cir. 2011) (collecting cases and explaining that information encompassed by
the constitutional right to privacy may be separated into categories reflecting sexual, medical,

and some financial information)). Unlike these examples, and the myriad cases cited herein, a
mug shot does not exude a reasonable expectation of confidentiality.2 Accordingly, Plaintiff
fails to state a cognizable claim for deprivation of a privacy interest in the confidentiality of the
Mug Shot pursuant to the Fourteenth Amendment.
2. Deprivation of Interest
Even if Plaintiff were entitled to a property interest in his job or a privacy interest in the
confidentiality of the Mug Shot, Plaintiff’s claim is confronted with a causation issue. “It is
axiomatic that ‘[a] § 1983 action, like its state tort analogs, employs the principle of proximate

2 Cf. Atwater v. City of Lago Vista, 532 U.S. 318, 355 (2001) (finding that plaintiff’s “arrest and
booking [which included a mug shot] were inconvenient and embarrassing to [plaintiff], but not
so extraordinary as to violate the Fourth Amendment”); Paul v. Davis, 424 U.S. 693, 718 (1976)
(refusing to recognize right to privacy in § 1983 claim where plaintiff’s mugshot was publicized,
even though plaintiff was “never convicted of any criminal activity and whose only ‘offense’
was having once been arrested”); Jamali v. Cnty. of Maricopa, 668 F. App’x 722, 723 (9th Cir.
2016) (finding dismissal appropriate where constitutional claim arose out of his mugshot);
Nunez, 578 F.3d at 233 (affirming dismissal because the expunged criminal record that was
exposed was publicly available); Scheetz, 946 F.2d at 207 (affirming dismissal and holding that
“the information contained in a police report is not protected by the confidentiality branch of the
constitutional right of privacy” because, in part, “the information would have wound up on the
public record”); DePiano v. Atl. Cty., 2006 U.S. Dist. LEXIS 27434, at *16–22 (D.N.J. Apr. 25,
2006) (holding, after bench trial, that plaintiff failed to prove a violation of his privacy rights
where photographs of the male plaintiff dressed in female clothing were distributed); Sorrentino
v. City of Phila., 1997 U.S. Dist. LEXIS 14564, at *18 (E.D. Pa. Sept. 16, 1997) (explaining that
“[i]nformation relating to an individual’s criminal convictions or criminal charges . . . is not
confidential information subject to constitutional protection” and deducing that “an individual’s
mug shot photo is a matter of public record not subject to constitutional protection”).
12
causation.’” Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000) (quoting Townes v. City of New
York, 176 F.3d 138, 146 (2d Cir. 1999)).
The concept of “proximate cause” has traditionally been defined “as a person’s
wrongful conduct which is a substantial factor in bringing about harm to another.”
However, “an intervening act of a third party, which actively operates to produce
harm after the first person’s wrongful act has been committed, is a superseding
cause which prevents the first person from being liable for the harm which his
antecedent wrongful act was a substantial factor in bringing about.”

Barr v. Cty. of Clarion, 417 F. App’x 178, 181 (3d Cir. 2011) (citing Egervary v. Young, 366
F.3d 238, 246 (3d Cir. 2004); Restatement (Second) of Torts §§ 431, 440–41).
Plaintiff fails to address any connection between the alleged distribution of the Mug Shot
and the alleged injury suffered, his termination. The sensational media coverage he received
seems to have stemmed from the evocative nature of Plaintiff’s public defecation charge—a
charge to which he eventually pleaded guilty—coupled with the fact that Plaintiff was a
superintendent at a different school district. Plaintiff alleges that the “Mug Shot gave traction to
inaccurate media accounts” (Compl. ¶ 49), but Plaintiff admits that “Plaintiff was forced to step
down from his position . . . due to the negative media attention his case received” (id. ¶ 50
(emphasis added)). It is not clear how the Mug Shot—a simple neck-up photograph—plausibly
could have caused any inaccurate reporting, and Plaintiff does not allege that Defendants
publicly distributed any inaccurate information. Simply put, it can hardly be argued that but for
the distribution of the Mug Shot—the only constitutionally deficient behavior alleged—the
sensational media coverage and Plaintiff’s termination would not have transpired. Moreover,
other than pointing a finger at Defendant Martin, who took the Mug Shot, Plaintiff does not
allege when Defendant Martin disseminated the Mug Shot, to whom he distributed it, or the
method by which he did so. The Complaint’s chief factual allegations regarding “inaccurate
13
media accounts” and “negative media attention” seem to be concentrated on, and better
addressed by, Plaintiff’s state-law tort claims, which include defamation and invasion of privacy,
more so than any federal constitutional violation.3
II. Municipal Liability under § 1983 (Count II)

To hold a municipality liable under § 1983, a plaintiff must show that either (1) the
constitutional violations of government employees were the result of a policy or custom of the
municipality for whom the employee works, Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d
Cir. 2014) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978)); or alternatively,
(2) the municipality failed to adequately train or supervise the employees that ultimately violated
the constitution, Padilla v. Twp. of Cherry Hill, 110 F. App’x 272, 278–79 (3d Cir. 2004). “It is
well-established that there is no general municipal respondeat superior liability under 42 U.S.C.
§ 1983.” Ali v. Rando, 2011 U.S. Dist. LEXIS 109618, at *26 (D.N.J. Sept. 26, 2011) (citing
McMillian v. Monroe Cty., 520 U.S. 781, 784 (1997); Monell, 436 U.S. at 691). Rather, liability
“must be founded upon evidence that the government unit itself supported a violation of

constitutional rights.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990).
Where a claim is based on a policy or custom, a “plaintiff must identify the challenged
policy, attribute it to the [municipality] itself, and show a causal link between execution of the
policy and the injury suffered.” Harley v. N.J. City, 2017 U.S. Dist. LEXIS 98808, at *20–21
(D.N.J. June 27, 2017) (quoting Kranson v. Valley Crest Nursing Home, 755 F.2d 46, 51 (3d Cir.

3 Separately, “[d]eprivation violates due process only when it ‘shocks the conscience,’ which
encompasses ‘only the most egregious official conduct.’” Chainey, 523 F.3d at 219 (quoting UA
Theatre Circuit v. Twp. of Warrington, 316 F.3d 392, 400 (3d Cir. 2003)). The Court is skeptical
as to whether Defendants’ alleged conduct clears this high hurdle, but it need not analyze this
issue.
14
1985)). The plaintiff must point to some “given course of conduct, although not specifically
endorsed or authorized by law, [that] is so well-settled and permanent as virtually to constitute
law.” Bielevicz, 915 F.2d at 850 (citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1480
(3d Cir. 1990)); Watson v. Abington Twp., 478 F.3d 144, 155 (3d Cir. 2007). “[P]roof of a single

incident of unconstitutional activity is not sufficient to impose liability under Monell, unless
proof of the incident includes proof that it was caused by an existing, unconstitutional
[government] policy, which policy can be attributed to a . . . policymaker.” Wood v. Williams,
568 F. App’x 100, 105-06 (3d Cir. 2014) (citing Okla. City v. Tuttle, 471 U.S. 808, 823–24
(1985)).
Where a claim is based on a failure to train or supervise, a plaintiff must demonstrate
both “deliberate indifference to the rights of persons with whom those employees will come into
contact” as well as a “causal nexus” between the failure to train and the constitutional injury.
Thomas, 749 F.3d at 222 (internal quotations omitted) (citing Carter v. City of Phila., 181 F.3d
339, 357 (3d Cir. 1999); City of Canton v. Harris, 489 U.S. 378, 391 (1989)). A finding of

deliberate indifference necessitates that the constitutional violation be a “highly predictable
consequence” of the failure to train, which arises where a pattern of similar violations has
occurred in the past or where the need for training is “obvious.” Id. at 223, 225 (citing Connick
v. Thompson, 563 U.S. 51, 62, 64 (2011); Canton, 489 U.S. at 390 n.10). “This requires a
showing of the policymakers’ ‘continued adherence to an approach that they know or should
know has failed to prevent tortious conduct by employees.’” Robinson v. Fair Acres Geriatric
Ctr., 722 F. App’x 194, 199 (3d Cir. 2018) (quoting Bd. of the Cty. Comm’rs v. Brown, 520 U.S.
397, 407 (1997)).

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Here, the Complaint alleges that “[a] deprivation of a federal right occurred as a result of
a policy” and that Defendants “developed and maintained policies, procedures, customs, and/or
practices exhibiting deliberate indifference to the Constitutional rights of citizens, which were
moving forces behind and proximately caused the violations of Plaintiff’s Constitutional and

federal rights.” (Compl. ¶¶ 82–83, 90–91.) It further alleges that Defendants have “created and
tolerated an atmosphere of lawlessness and have developed and maintained long-standing,
department-wide customs, law enforcement related policies, procedures, customs, practices,
and/or failed to properly train and/or supervise its officers in a manner amounting to deliberate
indifference to the Constitutional rights of Plaintiff and of the public.” (Id. ¶ 92.) Plaintiff also
refers to “[t]he deliberately indifferent training and supervision provided by [Defendants]
resulted from a conscious or deliberate choice to follow a course of action from various
alternatives available to [Defendants].” (Id. ¶ 94.)
Rather than including “plain and clear allegations . . . establish[ing] municipal liability”
(Pl.’s Br. at 20), however, the majority of the allegations amount to nothing more than

boilerplate language tracking the rudimentary elements of a Monell claim. “[T]o state a viable
claim in this context, [Plaintiff] must not only identify a municipal custom or policy that caused
[his] injury, but also ‘specify what exactly that custom or policy was.’” Estate of Fabics v. City
of New Brunswick, 674 F. App’x 206, 210 (3d Cir. 2016) (quoting McTernan v. City of York, 564
F.3d 636, 658 (3d Cir. 2009)). Plaintiff does not describe an official custom or policy that
violates the law, nor does he allege a proper causal link between any custom or policy of
Defendants and the alleged injury. The Court declines to entertain the numerous inferential leaps
necessary to deduce a particular custom or policy as “[p]roof of a single incident of
unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the
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incident includes proof that it was caused by an existing . . . municipal policy, which policy can
be attributed to a municipal policymaker.” Brown v. Pittsburgh, 586 F.3d 263, 292 (3d Cir.
2009) (quoting Okla. City v. Tuttle, 471 U.S. 808, 823–24 (1985)). That specificity is absent
here. Cf. McTernan v. City of York, 564 F.3d 636, 657–59 (3d Cir. 2009) (affirming dismissal

because the complaint “fail[ed] to specify the relevant ‘custom’ or ‘policy’ . . . . [and instead]
simply paraphrase[d] § 1983”).
And, separately, in the context of demonstrating deliberate indifference for purposes of
failure to train, some kind of “pattern of similar constitutional violations by untrained employees
is ‘ordinarily necessary’ . . . . Without notice that a course of training is deficient in a particular
respect, decisionmakers can hardly be said to have deliberately chosen a training program that
will cause violations of constitutional rights.” Connick v. Thompson, 563 U.S. 51, 62 (2011)
(internal citation omitted). The conclusory allegations in the Complaint lack the requisite
specificity in order to state a cognizable Monell claim. Accordingly, Count II is dismissed.
III. Supplemental Jurisdiction

Because the Court dismisses Counts I and II, only state-law claims remain. (See Compl.
¶¶ 99–135 (alleging Counts III–XIII: negligent infliction of emotions distress; intentional
infliction of emotional distress; negligent hiring, retention, training, and supervision; defamation;
false light and/or invasion of privacy; and intrusion of seclusion).) Although “a district court
may decide state-law claims remaining after the dismissal of federal claims if ‘considerations of
judicial economy, convenience, and fairness to the parties provide an affirmative justification for
doing so,’” Plaintiff has failed to identify any rationale counseling against dismissal. Lopresti v.
Cty. of Lehigh, 572 F. App’x 133, 135 (3d Cir. 2014) (quoting Bright v. Westmoreland Cnty.,
443 F.3d 276, 286 (3d Cir. 2006)); see also 28 U.S.C. § 1367(c)(3) (providing that a district
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court “may decline to exercise supplemental jurisdiction” over state-law claims where it “has
dismissed all claims over which it has original jurisdiction”). Indeed, the parties have not
allocated many resources to this case as it has yet to surpass the motion-to-dismiss stage.
Accordingly, the Court declines to exercise supplemental jurisdiction over the remaining state-

law claims.
IV. Leave to Amend
Plaintiff requests, in the alternative, that the Court grant him leave to cure any
deficiencies found in the Complaint. Rule 15(a)(2) of the Federal Rules of Civil Procedure
allows amendment of the pleadings with the court’s leave. Because leave to amend should be
freely given, Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000), Plaintiff is granted leave to file
an amended complaint, in accordance with Local Civil Rule 15.1(b), to cure the deficiencies
identified in regard to his § 1983 claims outlined in Counts I and II.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is granted. An appropriate

Order will follow.

Date: September 9, 2019 /s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10266994. Public record. Not legal advice.