HARRISON v. NEW JERSEY STATE POLICE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

KYRA HARRISON,

Plaintiff,

Docket No.: 18-cv-16358

v.

NEW JERSEY STATE POLICE, et al., OPINION

Defendants.

WILLIAM J. MARTINI, U.S.D.J.:

Plaintiff Krya Harrison (“Plaintiff”) brings this action against the New Jersey State

Police (“NJSP”), its superintendent, and various State Troopers (collectively “Defendants”).

Plaintiff alleges she was pulled over due to her race, assaulted, falsely arrested, and

maliciously prosecuted. The matter comes before the Court on Defendants’ motion to dismiss

pursuant to FRCP 12(b)(6). ECF No. 29 (“Motion”). For the reasons set forth below, the

motion should be GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

The basic facts of this case were set forth in the Court’s August 1, 2019 Opinion,

familiarity with which is assumed. In short, Plaintiff alleges that on November 22, 2016,

New Jersey State Trooper Rafael R. Castro targeted her due to her race, pulled her over for

pretextual reasons, became angry when she called 9-1-1, arrested her without cause, and in

the process, “dragged her from her car, slammed her to the ground, slammed her head to the

concrete, stuck his knee in her back and handcuffed her,” then dragged her to his patrol car.

Amend. Compl. ¶ 28, ECF 27 (“AC”). After being treated for various injuries, Plaintiff was

tried and acquitted of calling 9-1-1 without a lawful purpose. Id. ¶¶ 34-54.

Plaintiff filed suit on November 21, 2018. ECF No. 1. On August 1, 2019, this Court

granted in part and denied in part Defendants’ first motion to dismiss. ECF No. 22 (“August

Opinion”). The Court gave Plaintiff leave to amend some, but not all, of her claims. ECF

No. 23 (“August Order”). Plaintiffs filed the AC on September 26, 2019. Presently before

the Court is Defendants’ second motion to dismiss. ECF No. 29.

II. LEGAL STANDARD

A complaint survives a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss if

the Plaintiff states a claim for relief that is “plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 547 (2007). The movant bears the burden of showing that no claim

has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). Courts accept

all factual allegations as true and draw “all inferences from the facts alleged in the light most

favorable” to plaintiffs. Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008).

But courts do not accept “legal conclusions” as true and “[t]hreadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

III. DISCUSSION

Defendants move to dismiss portions of Counts One (pattern and practice allegations),

Two (Section 1983 excessive force), three (assault and battery), Four (Section 1983 unlawful

search/seizure/detention), Five (Section 1983/common law false arrest), Six (Section 1983

malicious prosecution), Seven (Section 1983 conspiracy), Eight (Section 1983 supervisor

liability), Nine (negligent hiring/training/retention), ten (Section 1983 equal protection) and

Twelve (intentional and negligent infliction of emotional distress).

A. Pattern and Practice Claim as to NJSP (Count One)

Defendants argue Plaintiff improperly attempts to revive Count One, which the Court

previously dismissed with prejudice. Mot. at 2-3. Plaintiff “concedes all claims brought

against the NJSP pursuant to 42 U.S.C. § 1983, § 1981, § 1985 and the New Jersey Civil

Rights Act were previously dismissed as they are [barred] by the Eleventh Amendment.”

Opp. at 16, ECF No. 32. Accordingly, Count One, as alleged against NJSP, remains

DISMISSED WITH PREJUDICE.

B. Negligent Hiring/Training/Retention (Count Nine)

Next, Defendants argue Plaintiff’s negligent hiring, training, and retention claim

(Count Nine) fails to meet the requisite pleading standard, and thus must be dismissed. Mot.

at 3. Plaintiff’s response is befuddling. She first addresses issues not presented in the current

motion (e.g., pattern or practice theories for Section 1983 liability) before making a series of

conclusory statements regarding the adequacy of the factual allegations in the AC. See Opp.

at 16-22. But regardless of whether Count Nine is brought under a traditional tort or Section

1983 theory (as Plaintiff’s brief discusses), Plaintiff still must allege facts–not conclusions or

threadbare recitals of elements—that push the claims into the realm of plausibility. See

Ashcroft, 556 U.S. at 678.

1. Negligent Hiring

With respect to negligent hiring, Plaintiff alleges no facts from which the Court could

plausibly conclude Defendants Joseph Fuentes (superintendent of NJSP) or the NJSP are

liable. Other than threadbare recitals of elements and law, nothing indicates they had reason

to know hiring Troopers Castro, Jonathan Lupuski, Dana Wilcomes, Jeffrey Almeida, or

Sergeant Nicholas Decesare (“Officer Defendants” and with Fuentes, “Individual

Defendants”) posed a risk before their hiring. See Bd. of Cty. Comm'rs of Bryan Cty., Okl. v.

Brown, 520 U.S. 397, 411 (1997) (for Section 1983, requiring that scrutiny of applicants

background would lead to reasonable conclusion that decision to hire would result in

deprivation of rights); G.A.-H. v. K.G.G., 210 A.3d 907, 916, reconsideration denied, 215

A.3d 913 (N.J. 2019) (for state law theory, requiring that employer knew or had reason to

know of the particular unfitness, incompetence, or dangerous attributes of the employee).

Thus, the Motion should be GRANTED with respect to the negligent hiring claim.

2. Negligent Training and Retention

With respect to negligent training or retention, to state a claim, plaintiffs must allege

that “(1) an employer knew or had reason to know that the failure to supervise or train an

employee in a certain way would create a risk of harm and (2) that risk of harm materializes

and causes the plaintiff’s damages.” G.A.-H., 210 A.3d at 916.

While most of the allegations against NJSP and Superintendent Fuentes are mere

conclusory statements that would not survive a motion to dismiss, some of the allegations in

Count Eight (and incorporated into Count Nine) are specific enough to pass muster. See AC

pp. 39-40 ¶¶ 4-6. Plaintiff alleges that Fuentes was aware of the specific facts of her

mistreatment, including Officer Castro tampering with his recording device. Id. Nonetheless,

Fuentes allegedly failed to take any steps to intervene in (or at least supervise) Plaintiff’s

subsequent prosecution by Castro. Id. Accordingly, Fuentes had reason to know that his

failure to supervise or train Castro created a risk of harm and his failure to provide such

supervision or training plausibly injured Plaintiff. See id.; G.A.-H., 210 A.3d at 916 (listing

elements). Therefore, Defendants’ motion to dismiss the negligent training and retention

claim is DENIED.

C. Qualified Immunity Defense to Various Claims and Defendants

Defendants argue the Individual Defendants are entitled to qualified immunity. Courts

apply a two-part test in determining issues of qualified immunity: (1) “whether the facts that

a plaintiff has . . . shown make out a violation of a constitutional right” and (2) “whether the

right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.”

Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009) (citations omitted). While questions of

qualified immunity are appropriately answered as a matter of law, issues of fact may preclude

ruling before trial. See Giles v. Kearney, 571 F.3d 318, 326 (3d Cir. 2009).

1. Supervisory Liability Against Superintendent Fuentes

Defendants argue all claims against Fuentes—Counts One (pattern and practice

allegations), Seven (conspiracy), and Eight (supervisor liability)—must be dismissed because

he is entitled to qualified immunity.

To adequately plead a Section 1983 conspiracy claim, Plaintiffs (1) must allege “that

persons acting under color of state law reached an understanding to deprive him of his

constitutional rights” and (2) “must provide some factual basis to support the existence of the

elements of a conspiracy: agreement and concerted action.” Jutrowski v. Twp. of Riverdale,

904 F.3d 280, 295 (3d Cir. 2018). Here, after stripping away legal conclusions and threadbare

recitals of elements (as the Court must), Plaintiff fails to allege any facts from which the Court

could plausibly find that Fuentes entered into an agreement or took concerted action to violate

her rights. See id. Thus, the motion to dismiss is GRANTED as to the conspiracy claim

(Count Seven) against Fuentes.

The Supervisory claim in Count Eight, on the other hand, is adequately plead. The

Court previously dismissed Count Eight without prejudice because (1) Plaintiff failed to plead

any facts from which the Court could conclude Fuentes established and maintained a custom

of permitting similar constitutional violations or (2) had knowledge and acquiesced to the

violations. Aug. Op. at 6. As amended, Count Eight now specifically states that Fuentes

knew of the misconduct at issue but allowed false charges to be filed anyway. AC Ct. VIII

¶¶ 4-6. Accordingly, Plaintiff has adequately alleged Fuentes could be liable under a

“knowledge and acquiescence” theory, which is “clearly established.” See, e.g., A.M. ex rel.

J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). Thus, the motion

to dismiss Counts Eight against Fuentes is DENIED. On the flip side, the allegations

regarding Fuentes’s maintenance of a custom of unlawful behavior remain too general to pass

muster. Accordingly, the motion to dismiss Plaintiff’s “pattern and practice” claim (Count

One) is GRANTED.

2. Conspiracy Against Decesare, Lopuski, Wilcomes, Almeida, and

Castro

Defendants argue the conspiracy claim (Count Seven) against Decesare, Louski,

Wilcomes, Almeida, and Castro should also be dismissed because Plaintiff failed to allege

sufficient facts to state a claim. Mot. at 12-14. As with Fuentes, Defendants are correct.

Count Seven is rife with legal conclusions and devoid of facts. While Plaintiff does allege

the other officers were aware that Castro turned off his recording device, AC Ct. VII, ¶ 2,

there are no facts from which the Court could reasonably conclude an agreement existed.1

See Jutrowski, 904 F.3d at 295 (requiring agreement). And given that Decesare, Lopuski,

Wilcomes, and Almeida are clumped together, the AC fails to give each Defendants adequate

notice of what they are alleged to have done. See Sheeran v. Blyth Shipholding S.A., 14-cv-

5482, 2015 WL 9048979, at *3 (D.N.J. Dec. 16, 2015) (finding group pleading fails to satisfy

FRCP 8). Plaintiff never specifies what evidence these Defendants conspired to fabricate or

what they did to coverup the alleged constitutional violations. Fabricating “official reports,”

“lying,” and the like are not specific enough to give adequate notice. If the allegations here

passed muster, plaintiffs could state a claim simply by alleging “defendants conspired to

fabricate official records.” That is insufficient under Twombly and Iqbal. Accordingly, the

motion to dismiss the conspiracy claim (Count VII) is GRANTED.

3. Excessive Force and Failure to Intervene Against Decesare, Lopuski,

Wilcomes, and Almeida

Defendants argue Plaintiff fails to state a clam against Officers Decesare, Lopuski,

Wilcomes, and Almeida for excessive force and various derivative claims, as well as failure

to intervene (Counts Two, Three, and Five). Mot. at 14-19. Direct Excessive force (Count

Two), assault and battery (Count Three), and false arrest (Count Five) require some

affirmative action for liability to attach. Here, other than their presence as “secondary

1 Instead, Plaintiff repeatedly rephrases the elements of a conspiracy claim, alleging: the officers

“conspired with C[astro]” to fabricate evidence, “combined and conspired to accomplish the unlawful

objective,” “conspired to conceal the true nature of the incident by falsifying the official reports,

fabricating evidence and lying in furtherance of their conspiracy to frame [Plaintiff],” “engaged in a

conspiracy to coverup the true circumstances” of the incident, and “conspired with each other, reached

a mutual understanding, and acted to undertake a course of conduct to cover up the true nature of the

incident,” and “took numerous overt steps in furtherance of such conspiracy.” Id. ¶ 2-8.

Troopers who responded to the scene,” AC ¶ 32, Plaintiff fails to allege any facts

demonstrating involvement by these Defendants. Accordingly, Plaintiff has not stated a claim

on which relief can be granted for excessive force, assault and battery, or false arrest as to

Officers Decesare, Lopuski, Wilcomes, or Almeida.

As to failure to intervene, for liability to attach, plaintiffs “must demonstrate that the

defendants: (1) observed or had knowledge that a constitutional violation was taking place,

yet failed to intervene; and (2) had a reasonable and realistic opportunity to intervene.”

Monticciolo v. Robertson, 15-cv-8134, 2017 WL 4536119, at *18 (D.N.J. Oct. 11, 2017)

(cleaned up). Here, the AC alleges that Decesare, Lopuski, Wilcomes, and Almeida arrived

at the scene and failed to stop Castro. See AC ¶ 32. But that is not enough to satisfy the

necessary elements. As to observation or knowledge of a violation, Plaintiff does not specify

when the officers arrived, where they were positioned, what they witnessed, and what context

they had (accurate or otherwise). Unsurprisingly, without such details, the AC also fails to

allege facts from which the Court could reasonably conclude these Defendants had a sufficient

opportunity to intervene. Accordingly, the motion to dismiss the excessive force, derivative,

and failure to intervene claims (Counts Two, Three, and Five) against Defendants Decesare,

Lopuski, Wilcomes, and Almeida is GRANTED.

4. Unreasonable Detention, False Arrest, and Malicious Prosecution

Against Decesare, Lopuski, Wilcomes, and Almeida

Defendants argue Plaintiff fails to state a clam against Officers Decesare, Lopuski,

Wilcomes, and Almeida for unlawful and unreasonable search, seizure, and detention (Count

Four), false arrest (Count Five), and malicious prosecution (Count Six). Viable search,

seizure, or detention claims require a search or a seizure by the accused. See Florida v.

Bostick, 501 U.S. 429, 434 (1991) (“Only when the officer . . . has in some way restrained the

liberty of a citizen may we conclude that a seizure has occurred.” (citation omitted)). None

is alleged as to these Defendants. Similarly, false arrest requires the defendant to have

arrested the plaintiff. See Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir.1988) (“The

proper inquiry [is] . . . whether the arresting officers had probable cause to believe the person

arrested had committed the offense.”). Castro, not these Defendants, arrested Plaintiff. AC

¶ 25. And finally, malicious prosecution claims are only viable against defendants who

“initiated a criminal proceeding.” Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007). No

alleged facts indicate these Defendants did so. Accordingly, the motion is GRANTED as to

the unreasonable detention, false arrest, and malicious prosecution claims (Counts Four-Six)

against Decesare, Lopuski, Wilcomes, and Almeida.

5. Equal Protection Against Castro

Defendants argue Castro is entitled to qualified immunity on Plaintiff’s equal

protection claim (Count Ten) because “the law has not been clearly established . . . that the

facts alleged . . . constitute a constitutional violation.” Mot. at 21-22. Defendants hone in on

the reason Officer Castro cited for pulling Plaintiff over (i.e., passing him on the right), notes

Plaintiff failed to allege other cars were also passing on the right, cites a New Jersey law

prohibiting such conduct, then asserts that “[t]he Defense has conducted a search and has

found no clearly established law holding that an equal protection claim may be maintained

against a law officer under these circumstances.” Id. at 22.

Defendants’ argument misses the mark because it fails to properly identify the facts

underlying Plaintiff’s equal protection claim. Plaintiff is not asserting that Officer Castro

pulling her over for passing on the right, in and of itself, violated her rights to equal protection.

Plaintiff is complaining about the selective prosecution of a traffic ordinance being used as

an excuse to detain and assault her for no reason. The crux of Plaintiff’s claim is that she

would not have been pulled over, beaten, arrested, or prosecuted if she was another race.

Other drivers passing Officer Castro2 without being pulled over is evidence of discriminatory

effect, not Plaintiff’s entire claim. See August Opinion at 4. The AC also includes allegations

of past discriminatory conduct by NJSP officers, further supporting the equal protection

claim. See id. Defendants fail to convincingly argue that liability for targeting, beating, and

arresting African Americans, citing pretextual reasons, is not “clearly established.” See Reiff

v. Marks, 08-cv-5963, 2011 WL 666139, at *5 (E.D. Pa. Feb. 23, 2011) (“Qualified immunity

is an affirmative defense for which the defendants bear the burden of proof.”). Race-based

police brutality and malicious prosecution is perhaps the quintessential Section 1983 action.

Accepting the allegations as true, no reasonable officer would believe the alleged conduct was

permissible. Therefore, the motion is DENIED as to the equal protection claim (Count Ten)

against Castro.

D. Infliction of Emotional Distress (Count Twelve)

Defendants argue Plaintiff’s “claims for intentional and negligent infliction of

emotional distress fail as against all Defendants other than Castro.” Mot. at 22. Plaintiff fails

to address Defendants’ arguments. Accordingly, the motion to dismiss Count Twelve, as

alleged against all Defendants besides Castro, is GRANTED. See E.g., Sportscare of Am.,

P.C. v. Multiplan, Inc., 10-cv-4414, 2011 WL 589955, at *1 (D.N.J. Feb. 10, 2011) (finding

failure to respond constitutes waiver).

E. Leave to Amend

Defendants seek dismissal with prejudice. Plaintiff does not address the issue. Under

such circumstances, district courts are still required to inform plaintiffs whether they have

leave to amend. Phillips v. Cty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). Generally,

amendment is permitted absent “undue delay, bad faith or dilatory motive . . . , repeated

failure to cure deficiencies by amendments previously allowed . . . , [or] futility of

amendment.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d

Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

Here, Plaintiff was already permitted to amend her complaint to cure her failure to

plead facts, as opposed to legal conclusions, that make out a plausible claim for relief. See

August Op. at 4-5 (dismissing discrimination and conspiracy claims for failure to plead facts).

2 While the AC failed to specify which side other cars passed on, given the context, it is reasonable

to infer they passed on the right. See AC ¶¶ 19-20. It is also reasonable to infer a line of cars passed

Castro, see id., making passing on the right potentially permissible, see N.J.S. 39:4-85.

Further, Plaintiff fails to indicate how amendment could cure any of the dismissed claims,

and (besides failure to intervene), the Court cannot see how further amendment would not be

futile. Accordingly, leave to amend is DENIED.

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is GRANTED IN PART

and DENIED IN PART. An appropriate order follows.

/s/ William J. Martini

Date: March 3, 2020 WILLIAM J. MARTINI, U.S.D.J.