WALKER v. CITY OF NEWARK

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

BRAD WALKER and MARKEITHA

Civ. No. 19-16853 (KM) (ESK)

WALKER,

Plaintiffs, AMENDED OPINION

v.

CITY OF NEWARK, COUNTY OF

ESSEX; DETECTIVE ZYNAH

PICKETT, OFFICER CZEZRE ADAMS;

DETECTIVE DWAYNE MAYS JR.,

OFFICER MAURICE MCKELVIN,

individually and in their official

capacities; JOHN DOES NO. 1 TO X,

AND JOHN ROES NO. 1 TO X,

individually and in their official

capacities, jointly and severally,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Now before the Court is the motion of Defendant the City of Newark (DE

9) to dismiss the Complaint (DE 1) filed by Plaintiffs Brad Walker and his

spouse, Markeitha Walker. By letter dated June 18, 2020, Detective Zynah

Pickett and Officer Maurice McKelvin join the motion to dismiss filed by

Newark. (DE 37).1 Plaintiffs have filed papers in opposition. (DE 24) For the

reasons stated herein, I will grant in part and deny in part Defendants’ motion

to dismiss.

1 Officers Czezre Adams and Detective Dwayne Mays Jr. have not been served

with the Complaint.

I. Summary2

For purposes of this motion to dismiss, I accept as true the allegations in

the Complaint.

A. Facts

Plaintiff Brad Walker and his family own and operate the Allure Lounge,

located at 417 Halsey Street in Newark, New Jersey. (Compl. ¶ 2) The

Complaint alleges that on June 2, 2018, Mr. Walker was working at the lounge

while an individual who he later learned was Detective Pickett of the Newark

Police Department was hosting a gathering. (Id. ¶ 3) Other individuals, also

later identified as Newark police officers, were in attendance, including

Defendants Adams, Mays Jr., and McKelvin. (Id.) At some point, Mr. Walker

was told that someone in that group had impermissibly brought liquor

purchased elsewhere into the lounge. (Id. ¶ 4) Walker alleges that upon hearing

this, he tried to enter the lounge (it is not clear where Walker was coming

from). An unidentified individual assaulted him from behind by pushing him.

(Id.) Another individual began screaming at him and threatened to harm him.

(Id.) Walker did not engage with those individuals and instead kept walking

into the lounge. (Id.) Unspecified defendants then got into a verbal altercation

with another customer of the lounge. (Id. ¶ 5) Walker, although scared, tried to

intervene, at which point he was pushed by another defendant and again

physically threatened. (Id. ¶¶ 5–6)

Mr. Walker retreated to his second floor office. (Id. ¶ 6) From there he

could see a crowd of customers gathering below him on the street. (Id. ¶ 7)

Walker grabbed a legally registered gun and “placed it on his person.” (Id. ¶ 8)

He returned to the lounge and approached the individual later identified as

Defendant Pickett to ask her what was going on. (Id. ¶ 9) Officer Pickett

2 Citations to the record will be abbreviated as follows. Citations to page numbers

refer to the page numbers assigned through the Electronic Court Filing system, unless

otherwise indicated:

“DE” = Docket entry number in this case.

“Compl.” = The Complaint filed by Plaintiffs. (DE 1-1)

allegedly responded by punching and kicking Walker. (Id.) Walker attempted to

back away from Pickett, which caused three or four other defendants to

“charge” him. (Id. ¶ 10) Walker then pulled out his gun and fired a single shot

into the air. (Id. ¶ 11) Unspecified defendants responded by attempting to shoot

Walker, but all of their shots missed. (Id. ¶¶ 12–13) Walker alleges that at no

point prior to the start of the shooting did any individual announce that he or

she was a Newark police officer. (Id. ¶ 12)

At this point, however, he heard someone yell “Newark Police” which

caused him to lie down on the ground and put his weapon down. (Id. ¶ 13)

While he was on the ground, Defendants handcuffed him and started kicking

him. (Id. ¶ 14) Defendants then pulled Walker off the ground and one of them

used a gun to hit Walker above his left eye. (Id.) Mr. Walker began bleeding as

the kicking continued. (Id. ¶¶ 15–16) It was only when an employee informed

defendants that Walker owned the lounge that they stopped beating him. (Id. ¶

16) The defendants called the Newark police department and left the scene,

leaving Walker handcuffed on the ground. (Id.¶ 18)

When different Newark officers arrived on scene, Mr. Walker was still on

the ground, handcuffed and bleeding. (Id. ¶ 19) These officers placed him in a

police vehicle, where he remained for 10 hours. (Id. ¶ 21) He witnessed other

police officers collecting spent shells—an effort, he says, to cover up the

shooting that had occurred earlier. (Id. ¶ 22) Ultimately, Mr. Walker was

arrested and placed in jail. (Id. ¶ 23)

B. Procedural History

On or about June 28, 2018, Newark received a notice of claim from Mr.

Walker. (DE 9-1 at 12). In August 2018, the City alerted Mr. Walker to certain

deficiencies in his notice (id. at 12–13), and Mr. Walker responded on

December 19, 2018. (Id.) Mr. Walker’s notice of claim did not indicate that Mrs.

Walker, now a plaintiff here, would be asserting a claim against the City. (Id.)

On July 17, 2019, Plaintiffs filed their Complaint in the Superior Court of

New Jersey, Essex County, No. ESX-L-3624-18. Defendant Essex County was

served on August 6, 2019. (DE 1-1 at 2). On August 19, 2019, Essex filed a

notice of removal, invoking this Court’s original subject-matter jurisdiction

under 28 U.S.C. § 1331 because the Complaint asserts causes of action under

federal law. (Id. at 2–3)

The Complaint asserts a number of partially overlapping causes of

action:

Count 1: New Jersey Civil Rights Act (“NJCRA”) under N.J. Stat. Ann. §

10:6-2, et seq. (asserted against all Defendants);

Count 2: Negligent Infliction of Emotional Distress (asserted against

Newark and the Individual Defendants3);

Count 3: Intentional Infliction of Emotional Distress (asserted against

the Individual Defendants);

Count 4: Official Misconduct (asserted against all Defendants);

Count 5: Assault (asserted against the Individual Defendants);

Count 6: Negligent Supervision, Hiring and Retention (asserted against

Newark and Essex County);

Count 7: Negligence (asserted against all Defendants);

Count 8: Conspiracy to Violate Constitutional Rights under the NJCRA

and 42 U.S.C. §§ 1983, 1985 (asserted against the Individual

Defendants);

Count 9: Punitive Damages under State Law (asserted against the

Individual Defendants);

Count 10: Constitutional Violations under 42 U.S.C. §§ 1981, 1983,

1985, 1986 (asserted against the Individual Defendants4);

Count 11: Constitutional Violations under 42 U.S.C. §§ 1983, 1985,

1986, 1988 (asserted against Newark and Essex County);

Count 12: Punitive Damages under Federal Law (asserted against the

Individual Defendants); and

Count 13: Per Quod (asserted against all Defendants).

3 I will refer to Defendants Detective Zynah Pickett, Officer Maurice McKelvin,

Officer Czezre Adams, and Detective Dwayne Mays Jr. hereafter as the “Individual

Defendants.”

4 It appears that Plaintiffs intended Count 10 to be asserted only as to the

Individual Defendants; it bears the following explanatory parenthesis: “(42 U.S.C. §§

1983 et seq. - Police Officers).” (DE 1-1 at 26) Newark, later joined by Pickett and

McKelvin, moved to dismiss both Counts 10 and 11.

On October 25, 2019, Newark filed a motion (DE 9) to dismiss certain

counts of the Complaint. Then, on November 14, 2019, Essex cross-moved to

dismiss (DE 21) the Complaint. On November 27, 2019, Plaintiffs filed a

consent to the dismissal of Essex, which I so-ordered. (DE 25; DE 27)

In December 2019, Officers McKelvin and Pickett were served with the

Complaint. (DE 26; DE 29) On June 18, 2020, Counsel for McKelvin and

Pickett filed a letter requesting that they be permitted to join in Newark’s

pending motion to dismiss Counts 1, 2, 3, 4, 6, 7, 10, 11, and 13. (DE 37)

Having received no objection from Plaintiffs, I will grant that request and

consider Newark’s arguments, mutatis mutandis, as if asserted on behalf of

McKelvin and Pickett.

II. Legal Standard

Federal Rule of Civil Procedure 8(a) does not require that a complaint

contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation to

provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Phillips v.

Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Rule 8 “requires a

‘showing’ rather than a blanket assertion of an entitlement to relief.” (citation

omitted)). Thus, the complaint’s factual allegations must be sufficient to raise a

plaintiff’s right to relief above a speculative level, so that a claim is “plausible

on its face.” Twombly, 550 U.S. at 570; see also West Run Student Hous.

Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013).

That facial-plausibility standard is met “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard

is not akin to a ‘probability requirement’ . . . it asks for more than a sheer

possibility.” Id.

Rule 12(b)(6) provides for the dismissal of a complaint if it fails to state a

claim upon which relief can be granted. The defendant, as the moving party,

bears the burden of showing that no claim has been stated. Animal Science

Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011).

For the purposes of a motion to dismiss, the facts alleged in the complaint are

accepted as true and all reasonable inferences are drawn in favor of the

plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp.

of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).

When deciding a motion to dismiss, a court typically does not consider

matters outside the pleadings. However, a court may consider documents that

are “integral to or explicitly relied upon in the complaint” or any “undisputedly

authentic document that a defendant attaches as an exhibit to a motion to

dismiss if the plaintiff’s claims are based on the document[.]” In re Rockefeller

Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999) (emphasis and

citations omitted); see In re Asbestos Prods. Liab. Litig. (No. VI), 822 F.3d 125,

133 n.7 (3d Cir. 2016); Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).

In that regard, courts may consider matters of public record and exhibits

attached to the complaint. Schmidt, 770 F.3d at 249 (“To decide a motion to

dismiss, courts generally consider only the allegations contained in the

complaint, exhibits attached to the complaint and matters of public record”);

Arcand v. Brother Int’l Corp., 673 F. Supp. 2d 282, 292 (D.N.J. 2009) (court

may consider documents referenced in complaint that are essential to plaintiff’s

claim).

Reliance on these types of documents does not convert a motion to

dismiss into a motion for summary judgment. “When a complaint relies on a

document . . . the plaintiff obviously is on notice of the contents the document,

and the need for a chance to refute evidence is greatly diminished.” Pension

Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196-97 (3d

Cir. 1993).

III. Analysis

A. Punitive Damages

The prayers for relief in Counts 1 (NJCRA), 4 (Official Misconduct), and

10 (Constitutional Violations), include requests for punitive damages. Newark

asserts that as a matter of law the City cannot be held liable for punitive

damages under the Federal Civil Rights Act, the NJCRA, or the New Jersey Tort

Claims Act. (DE 9 at 16–17) Plaintiffs concede the point and therefore do not

oppose this portion of Newark’s motion to dismiss. (DE 24 at 21) Accordingly,

the court will strike the prayers for punitive damages under Counts 1, 4, and

10 to the extent asserted against Newark.

I consider more broadly the objection to punitive damages as it may

affect the Individual Defendants. Counts 9 and 12 are standalone claims for

punitive damages, asserted against the Individual Defendants only. “Punitive

damages” is not a cause of action, but one of a number of forms of relief that

might apply should some cause of action be proven:

Punitive damages are a remedy incidental to cause of action, not a

substantive cause of action in and of themselves. See, e.g., Sellers

v. School Bd. of City of Manassas, 960 F.Supp. 1006, 1011–12

(E.D.Va.1997) (noting that compensatory and punitive damages

not available under § 1983 if plaintiff does not state violation of

substantive right), aff’d, 141 F.3d 524 (4th Cir. 1998); California

Natural, Inc. v. Nestle Holdings, Inc., 631 F.Supp. 465, 474

(D.N.J.1986) (noting that New Jersey law contains no independent

cause of action for punitive damages); see also N.J. Stat. Ann. §

2A:15–5.13(c) (stating that punitive damages may be awarded

under New Jersey law only if compensatory damages have been

awarded)).

Hassoun v. Cimmino, 126 F. Supp. 2d 353, 372 (D.N.J. 2000). Counts 9 and 12

are redundant, as Plaintiffs have included requests for punitive damages in the

substantive counts. Counts 9 and 12 contribute nothing but clutter, and will

be dismissed.

I next consider whether punitive damages are available against the

Individual Defendants as a matter of law under the NJTCA and the civil rights

statutes. I conclude that they are available.

The NJTCA, as noted above, provides that “[n]o punitive or exemplary

damages shall be awarded against a public entity.” N.J. Stat. Ann. § 59:9-2(c).

Excluded from that limitation, however, are individual public employees, such

as the officers here. See Hayward v. Salem City Bd. of Educ., No. CV 14-5200

(JBS/AMD), 2016 WL 4744132, at *6 (D.N.J. Sept. 12, 2016). The requests for

punitive damages against the officers under the NJTCA may therefore remain.

The Federal Civil Rights Act and the NJCRA also permit an award of

punitive damages. Under Section 1983, a defendant whose conduct

demonstrates a reckless or callous indifference toward others’ rights may be

liable for punitive damages. See Smith v. Wade, 461 U.S. 30, 56 (1983) (stating

that a jury may award punitive damages when a “defendant’s conduct is shown

to be motivated by evil motive or intent, or when it involves reckless or callous

indifference to the federally protected rights of others”); Savarese v. Agriss, 883

F.2d 1194, 1204 (3d Cir. 1989) (holding that a defendant’s conduct must be at

minimum reckless or callous to impose punitive damages under § 1983). The

NJCRA (as discussed more fully below, see Section III.B.iv) is intended to

parallel 42 U.S.C. § 1983 and incorporates existing § 1983 jurisprudence.

Perez v. Zagami, 218 N.J. 202, 515 (2014). I see no precedent suggesting that I

should depart from the usual rule of a parallel construction with respect to the

availability of punitive damages. I hold that Plaintiffs may likewise pursue

punitive damages against the Individual Defendants under the NJCRA.

Accordingly, the prayer for punitive damages remains operative, not as to

the City, but as to the Individual Defendants and the substantive claims that

remain in this case after the disposition of this motion.

B. Claims Asserting Constitutional Violations

I turn to the counts of the Complaint that assert Constitutional

violations. They are

Count 1: NJCRA under N.J. Stat. Ann. § 10:6-2, et seq. (asserted

against all Defendants);

Count 4: Official Misconduct (asserted against all Defendants);

Count 8: Conspiracy to Violate Constitutional Rights under the NJCRA

and 42 U.S.C. §§ 1983, 1985 (asserted against the Individual

Defendants);

Count 10: Constitutional Violations under 42 U.S.C. §§ 1981, 1983,

1985, 1986 (asserted against the Individual Defendants); and

Count 11: Constitutional Violations under 42 U.S.C. §§ 1983, 1985,

1986, 19885 (asserted against Newark and Essex County).

In their briefing, the parties have narrowed the disputes that remain

under Counts 8, 10, and 11, eliminating claims under 42 U.S.C. §§ 1985 and

1986. (DE 24 at 56). Accordingly, the remaining constitutional claims are:

Count 1 (NJCRA); Count 4 (Official Misconduct); and the § 1981 and 1983

claims under Counts 10 and 11. It is convenient to discuss them in reverse

order.6

i. 42 U.S.C. § 1981 (Count 10)

Count 10 asserts a claim under 42 U.S.C. § 1981.7 To state a claim

under § 1981, a plaintiff must allege: (1) that he was a member of a racial

minority; (2) that Defendants intentionally discriminated against the plaintiff

on the basis of race; and (3) “discrimination concerning one or more of the

activities enumerated in the statute[,] which includes the right to make and

enforce contracts.” Varughese, 2017 WL 4270523, at *6 (D.N.J. Sept. 26, 2017)

(quoting Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001)). As

Plaintiff conceded in connection with Newark’s motion to dismiss, the

5 42 U.S.C. § 1988 permits “the court, in its discretion, [to] allow the prevailing

party ... a reasonable attorney’s fee” for actions brought under 42 U.S.C. § 1983 and

other statutes. Section 1988 does not give rise to a substantive cause of action, and

comes into play only if the plaintiff prevails on a civil rights claim. I therefore do not

discuss it further.

6 Count 8 cites 42 U.S.C. §§ 1983 and 1985. As noted, the Plaintiff agreed to drop

the claims under § 1985. I assume that the agreement to drop the § 1985 conspiracy

in Count 8 was intended to extinguish any substantive § 1983 claim as well. To the

extent any such independent § 1983 claim was intended, it is entirely duplicative of

other counts, so I dismiss Count 8 in its entirety.

7 Count 10 lists 42 U.S.C. §§ 1981, 1983, 1985, and 1986. As noted, the Plaintiff

agreed to drop the claims under §§ 1985 and 1986. I therefore consider § 1981 and, in

the following section, § 1983.

Complaint does not set forth any facts to suggest that Plaintiff was

discriminated against based on his race or ethnicity. Moreover, the Complaint

fails to assert any facts upon which to conclude that Plaintiff’s right to make

and enforce contracts was infringed.

The § 1981 claim in Count 10 is therefore dismissed.

ii. 42 U.S.C. § 1983 (Counts 10 and 11)8

Counts 10 and 11 both allege Section 1983 claims that Defendants

arrested Walker without probable cause and used excessive force, in violation

of his Fourth and Fourteenth Amendment rights. Count 10 is asserted against

the Individual Defendants, and Count 11 against the City of Newark.

When a federal right is infringed by an official acting under color of state

law, the Civil Rights Act of 1871 provides a remedy:

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. Section 1983 allows a party who has been deprived of rights,

privileges, or immunities secured by the Constitution to seek damages and

injunctive relief. See id. In Monell v. Dep’t Soc. Servs. of N.Y.C., “the Supreme

Court established that municipalities and other government entities were

‘persons’ subject to liability under 42 U.S.C. § 1983.” Noble v. City of Camden,

112 F. Supp. 3d 208, 221 (D.N.J. 2015) (citing Monell, 436 U.S. 658, 690-92

(1978)).

8 The Complaint and Plaintiff’s briefing often conflate the distinction between

claims brought under the NJTCA and constitutional claims brought pursuant to the

NJCRA or Section 1983. (See, e.g., “Point Four” DE 24 at 26–38) They are not the

same thing, and they involve different standards. See, e.g., Owens v. Feigin, 194 N.J.

607, 613–14 (N.J. 2008). Where an argument touches on the constitutional claims,

however, I have considered it.

Section 1983 is not itself a source of substantive rights; it provides a

remedy for violations of rights protected by other federal statutes or by the U.S.

Constitution. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985).

Therefore, in evaluating a § 1983 claim, a court must first “identify the exact

contours of the underlying right said to have been violated” and determine

“whether the plaintiff has alleged a deprivation of a constitutional right at all.”

Id. (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)).

A prima facie case under § 1983 requires a plaintiff to demonstrate that:

(1) a person deprived her of a federal right; and (2) the person who deprived her

of that right acted under color of state law. Groman v. Twp. of Manalapan, 47

F.3d 628, 633 (3d Cir. 1995) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)).

Under element (2), “a state employee who pursues purely private motives

and whose interaction with the victim is unconnected with his execution of

official duties does not act under color of law”; nevertheless, “off-duty police

officers who flash a badge or otherwise purport to exercise official authority

generally act under color of law . . informal, behind the scenes exertion of state

authority is as much within the scope of § 1983 as the more usual examples of

formal and open action leading to the denial of federal rights.” Ecotone Farm

LLC v. Ward, 639 F. App’x 118, 126 (3d Cir. 2016) (internal citations and

quotations omitted).

Mr. Walker alleges that the Individual Defendants announced that they

were Newark Police in an effort to control the chaos at the lounge. The officers

then restrained and handcuffed Mr. Walker. Those allegations are sufficient at

this stage to establish that the officers, although then off-duty, were exercising

state authority.

I therefore analyze whether under element (1), Mr. Walker was deprived

of a federal right.

1. Individual Defendants’ Liability under Count 10

a. False Arrest

The Fourth Amendment prohibits “unreasonable searches and

seizures.”9 U.S. CONST. amend. IV. The elements of the constitutional tort of

false arrest are “(1) that there was an arrest; and (2) that the arrest was made

without probable cause.” James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d

Cir. 2012). “Probable cause exists whenever reasonably trustworthy

information or circumstances within a police officer’s knowledge are sufficient

to warrant a person of reasonable caution to conclude that an offense has been

committed by the person being arrested.” United States v. Laville, 480 F.3d

187, 194 (3d Cir. 2007); accord Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.

Ct. 588, 593 (2004) Brinegar v. United States, 338 U.S. 160, 175–176, 69 S.Ct.

1302 (1949).

There was surely probable cause here to arrest Mr. Walker. The

Complaint, assumed for these purposes to be true, alleges that the officers

perceived that an unidentified individual had fired a weapon while in a crowd of

people in or near a bar. The officers observed Mr. Walker fire the gun,

announced that they were police officers, and jumped into action to detain

him.10 In these allegations I cannot perceive a basis for a claim that Mr. Walker

was wrongfully detained without probable cause.

9 The Fourth Amendment is applicable to the states through the Fourteenth

Amendment. See Baker v. McCollan, 443 U.S. 137, 142 (1979).

10 Newark also attached to its motion to dismiss a copy of Newark’s police report

(DE 9-9) and the Summary Docket report for Plaintiff’s criminal proceedings that

stemmed from this incident. (DE 9-3) These publicly available documents reveal that

the Complaint issued against Mr. Walker accused Mr. Walker of operating a handgun

without a permit and while using hollow-point bullets. (DE 9-9 at 4) Mr. Walker

ultimately pled guilty to unlawful possession of a weapon without a permit, but

subsequently entered pretrial intervention proceedings. (DE 9-3 at 2; DE 9-4) The

Court may take judicial notice of these documents without converting the motion to

one for summary judgment Gomez v. Town of W. New York, No. 13–689, 2013 WL

5937415, at *7 n. 3 (D.N.J. Nov.4, 2013) (“The Court may take judicial notice of the

criminal complaint as a matter of public record without converting this motion to

dismiss into a motion for summary judgment.”).

Accordingly, Defendants’ motion to dismiss Count 10 insofar as it asserts

a § 1983 claim for false arrest against the Individual Defendants is granted.

b. Excessive Force

Mr. Walker’s § 1983 claim that he was subjected to excessive force in the

course of his arrest stands on firmer ground. Even a valid arrest may be

carried out in an unlawful manner. Therefore, unlike a false arrest claim, an

excessive force claim is not necessarily defeated by a showing of probable

cause.

An excessive force claim is analyzed under the Fourth Amendment’s

reasonableness standard. See Graham v. Connor, 490 U.S. 386, 395 (1989).

“[T]o state a claim for excessive force as an unreasonable seizure under the

Fourth Amendment, a plaintiff must show that a ‘seizure’ occurred and that it

was unreasonable.” Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999)

(citation omitted). “The use of excessive force is itself an unlawful ‘seizure’

under the Fourth Amendment.” See Couden v. Duffy, 446 F.3d 483, 496 (3d

Cir. 2006) (citations omitted). The relevant inquiry is “whether the officer’s

actions are ‘objectively reasonable in light of the facts and circumstances

confronting them, without regard to their underlying intent or motivation.”

Graham, 490 U.S. at 397 (citations omitted).

The Third Circuit has enumerated some relevant considerations:

In deciding whether challenged conduct constitutes excessive

force, a court must determine the objective ‘reasonableness’ of the

challenge conduct, considering “the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the

officer or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.”

Carswell, 381 F.3d at 240 (quoting Graham, 490 U.S. at 396, 109

S.Ct. 1865). Other factors include “the duration of the [officer’s]

action, whether the action takes place in the context of effecting an

arrest, the possibility that the suspect may be armed, and the

number of persons with whom the police officers must contend at

one time.” Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997). In

evaluating reasonableness, the court must take into consideration

the fact that “police officers are often faced to make split-second

judgments—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force necessary in a

particular situation.” Graham, 490 U.S. at 397, 109 S.Ct. 1865.

Thus, the court should not apply “the 20/20 vision of hindsight,”

but should instead consider the “perspective of a reasonable officer

on the scene.” Id. at 396, 109 S.Ct. 1865.

Couden v. Duffy, 446 F.3d 483, 496-97 (3d Cir. 2006).

In Count Ten, Mr. Walker alleges that the Officers applied excessive force

when detaining him during the June 2018 incident. Mr. Walker alleges that

upon hearing someone scream “Newark Police” he immediately lay on the

ground and set aside his gun. (Compl. ¶ 13) While he was on the ground,

officers began kicking him as they handcuffed him and then one of the officers

pistol-whipped him in the face. (Id. ¶ 14) The officers allegedly continued to

kick him as he lay bleeding on the ground. (Id. ¶¶ 16–17). The officers then

called the Newark Police to respond and left the scene, leaving Mr. Walker

bleeding and handcuffed. (Id. ¶ 18)

In summary, Mr. Walker’s allegation is that even after he submitted to

authority, put down his weapon, and was handcuffed, the officers applied

excessive force. That is sufficient to support a claim that the Individual

Defendants used force maliciously to inflict unnecessary pain on Mr. Walker.

Count 10 therefore sets forth a § 1983 claim against the Individual Defendants

for excessive use of force in connection with the arrest.

c. Qualified Immunity

To complete the picture, I briefly consider whether the Individual

Defendants would be entitled to qualified immunity in relation to the § 1983

excessive force claim. I conclude that they would not.

“The doctrine of qualified immunity protects government officials ‘from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person

would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When properly applied,

qualified immunity protects “all but the plainly incompetent or those who

knowingly violate the law.” Medley v. Briggs, 475 U.S. 335, 341 (1986).

To overcome qualified immunity, a plaintiff must plead facts sufficient to

show that: (1) the official violated a statutory or constitutional right; and (2)

“the right at issue was ‘clearly established’ at the time of defendant’s alleged

misconduct.” Pearson, 555 U.S. at 232; Mammaro v. New Jersey Div. of Child

Prot. & Permanency, 814 F.3d 164, 168-69 (3d Cir. 2016). A right is clearly

established if it is “sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.” Mullenix v. Luna, 136 S.

Ct. 305, 308 (2015) (internal quotation marks and citation omitted). The

burden of proving the affirmative defense of qualified immunity rests on the

party seeking to invoke it. See Thomas v. Independence Twp., 463 F.3d 285,

292 (3d Cir. 2006).

At the motion to dismiss stage, I find that the allegations do not entitle

the Individual Defendants to qualified immunity. As stated above, Plaintiff has

overcome the minimal pleading hurdle of alleging that his constitutional rights

have been violated at least insofar as the officers are alleged to have used

excessive force. In 2018, when this incident occurred, the right to be free from

excessive force was clearly established:

The Court of Appeals for the Ninth Circuit has noted that at least

as early as 1985 the use of excessive force by officers in effecting

an arrest was clearly proscribed by the Fourth Amendment as it

held, quoting a 1985 Supreme Court opinion, that “the Fourth

Amendment governs not only whether a person or thing is

subject to a ‘seizure,’ but also ‘the manner in which a ... seizure

is conducted.’ “ Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th

Cir.1993) (quoting Tennessee v. Garner, 471 U.S. 1, 7–8, 105

S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985)). . . . Therefore, we hold

that the right of an arrestee to be free from the use of excessive

force in the course of his handcuffing clearly was established

when Officer Tate acted in this case, and that a reasonable officer

would have known that employing excessive force in the course of

handcuffing would violate the Fourth Amendment.

Kopec v. Tate, 361 F.3d 772, 777–78 (3d Cir. 2004).11

Thus, insofar as Count 10 asserts a § 1983 claim of excessive force

against the Individual Defendants, dismissal on qualified immunity grounds is

denied.

2. Newark’s Liability under Count 11

Count 11 asserts a § 1983 claim like that in Count 10, but asserts it

against the City of Newark. Because the false arrest component has already

been dismissed as against the Individual Defendants, I will dismiss it as to the

City as well. The following discussion relates to the § 1983 excessive force

claim.

The standard for municipal liability for actions of employees was

delineated in Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978).

Section 1983 liability cannot be predicated on respondeat superior. See id. at

694; Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parrat v.

Taylor, 451 U.S. 527, 537 n. 3 (1981)). Rather, it is only “when execution of a

government’s policy or custom, whether made by its lawmakers or by those

whose edicts and acts may fairly be said to represent official policy, inflicts the

injury ... [that] the government as an entity is responsible under § 1983.”

Monell, 436 U.S. at 694. The two paths to Monell liability, then, are municipal

“policy” or “custom.”

In order to establish a prima facie case of Monell liability, the plaintiff

must “(i) demonstrate the existence of an unlawful policy or custom; (ii) that

resulted in a deprivation of the rights, privileges, or immunities secured by the

Constitution or laws of the United States; and (iii) that the policy or custom

was the proximate cause of the alleged deprivation.” Maldonado v. City of

11 The omitted portion of the quotation from Kopec cited authority from the 1990s

to the effect that the Third Circuit had adopted a “broad view” of what constitutes an

established right. That view has arguably narrowed. See, e.g., James v. New Jersey

State Police, 957 F.3d 165, 169 (3d Cir. 2020). Still, I find that the facts as alleged

present a sufficiently clear case of excessive force under established case law.

Passaic Bd. of Educ., No. CV1712245ESJAD, 2020 WL 289649, at *7 (D.N.J.

Jan. 21, 2020) (citing Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)). A

government policy is made when a “decisionmaker possess[ing] final authority

to establish municipal policy with respect to the action’ issues an official

proclamation, policy, or edict.” Beck, 89 F.3d at 971 (quoting Bielevicz, 915

F.2d 845, 850 (3d Cir. 1990)). In contrast, “a course of conduct is considered to

be a ‘custom’ when, though not authorized by law, ‘such practices of state

officials [are] so permanent and well-settled’ as to virtually constitute law.” Id.

A Monell claim may also be premised on a municipality’s failure to train,

supervise, and discipline its officers. To plead such a claim, a plaintiff “must

demonstrate that a city’s failure to train its employees ‘reflects a deliberate or

conscious choice.’” Estate of Roman v. City of Newark, 914 F.3d 789, 798, 800

(3d Cir. 2019) (quoting Brown v. Muhlenberg Township, 269 F.3d 205, 215 (3d

Cir. 2001)):

Although a policy or custom is necessary to plead a municipal

claim, it is not sufficient to survive a motion to dismiss. A plaintiff

must also allege that the policy or custom was the “proximate

cause” of his injuries. See Kneipp v. Tedder, 95 F.3d 1199, 1213

(3d Cir. 1996). He may do so by demonstrating an “affirmative link”

between the policy or custom and the particular constitutional

violation he alleges. Bielevicz, 915 F.2d at 850 (internal quotation

marks omitted). This is done for a custom if [Plaintiff]

demonstrates that Newark had knowledge of “similar unlawful

conduct in the past, ... failed to take precautions against future

violations, and that [its] failure, at least in part, led to [his] injury.”

Id. at 851. Despite these requirements, [Plaintiff] does not need to

identify a responsible decisionmaker in his pleadings. See id. at

850. Nor is he required to prove that the custom had the City’s

formal approval. See Anela v. City of Wildwood, 790 F.2d 1063,

1067 (3d Cir. 1986).

The pleading requirements are different for failure-to-train claims

because a plaintiff need not allege an unconstitutional policy. See

Reitz v. County of Bucks, 125 F.3d 139, 145 (3d Cir. 1997) (“[I]n the

absence of an unconstitutional policy, a municipality’s failure to

properly train its employees and officers can create an actionable

violation ... under § 1983.”). Instead, he must demonstrate that a

city’s failure to train its employees “reflects a deliberate or

conscious choice.” Brown, 269 F.3d at 215 (internal quotation

marks omitted). For claims involving police officers, the Supreme

Court has held that the failure to train “serve[s] as [a] basis for §

1983 liability only where [it] ... amounts to deliberate indifference

to the rights of persons with whom the police come into contact.”

City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103

L.Ed.2d 412 (1989) (footnote omitted). A plaintiff sufficiently pleads

deliberate indifference by showing that “(1) municipal policymakers

know that employees will confront a particular situation[,] (2) the

situation involves a difficult choice or a history of employees

mishandling[,] and (3) the wrong choice by an employee will

frequently cause deprivation of constitutional rights.” Doe v.

Luzerne County, 660 F.3d 169, 180 (3d Cir. 2011) (internal

quotation marks omitted) (quoting Carter v. City of Philadelphia,

181 F.3d 339, 357 (3d Cir. 1999) ).

Roman, 914 F.3d at 798.

Here, Walker has not pled any official municipal policy, in the sense of a

proclamation, policy, or edict that resulted in his injuries. Instead, Walker

alleges customs and practices that amount to a failure to train and supervise

Newark’s police to prevent the use of excessive force.

In that regard, Walker points to the findings “of the Special Litigation

Section of the Civil Rights Division and the United States Attorney’s Office for

the District of New Jersey presented in their Investigation of the Newark Police

Department on July 22, 2014” (Compl. at 13) and the findings in “the United

States v. City of Newark, et al., Civil Action No. 16-1731 (MCA) (MAH) Consent

Decree Independent Monitor - Fifth Quarterly report” dated June 28, 2018. (Id.)

Newark has attached the June 2018 Fifth Quarterly Report (the “2018 Report”),

which discussed the 2014 DOJ report.12 (See DE 9-5) The 2018 Report stated

as follows:

In 2014, the United States Department of Justice (“DOJ”) issued a

report concluding that NPD officers engaged in a pattern or

12 Again, I will consider this document not for its truth but as support for the

allegations as pled. On a Rule 12(b)(6) motion, “document[s] integral to or explicitly

relied upon in the complaint may be considered without converting the motion [to

dismiss] into one for summary judgment.” In re Burlington Coat Factory Sec. Litig., 114

F.3d 1410, 1426 (3d Cir. 1997) (citations omitted). Here, Plaintiff has expressly relied

upon the conclusions found in the 2018 Report in the Complaint. (See Compl. at 13)

practice of unconstitutional policing, including: theft by officers,

unlawful stops and arrests, excessive use of force and retaliation

against individuals who exercise their First Amendment rights.

Because of these findings, on March 30, 2016, DOJ, NPD and the

City of Newark (the “City”) entered into a written settlement

agreement – a Consent Decree – that sets forth specific tasks

designed to correct NPD’s past unconstitutional practices, and

transform NPD into a twenty-first century police force. The

Consent Decree requires NPD to implement significant reforms,

including new policies and procedures, additional trainings, and

increased accountability through accurate record keeping and

transparency.

(DE 9-5 at 5) With respect to “use of force” the 2018 Report noted that Newark

had achieved “preliminary compliance” with revising its current use of force

policy in conformity with the consent decree. The revised use of force policies

were still being developed, however, and were subject to further approval. (Id.at

11–12, 14–15) The 2018 Report further stated:

1. Use of Force

Under Section VIII of the Consent Decree, NPD must, among

other things, develop and implement training “directing that the

use of force by NPD officers accords with the rights secured and

protected by the Constitution and state and federal law.”

Paragraph 11 of the Consent Decree requires NPD to provide the

Monitor and DOJ with drafts of proposed training plans or training

curricula.

As noted in prior Quarterly Reports, NPD is seeking external

funds to retain an expert to develop its use of force training plans

and curriculum. Although well-intentioned, due to factors outside

of NPD’s control, this process turned into nearly a two-year delay

to the development of this training, as reported previously.

The Monitoring Team will comment on NPD’s progress in

developing this training curriculum in its next (Sixth) Quarterly

Report.

(Id. at 22)

From this passage, it is reasonable to infer that there was an

unsatisfactory history of issues concerning use of force by the Newark Police.

That history ultimately led to the 2016 consent decree. Newark was in the

process of addressing its inadequate practices and customs in 2018, and is to

be applauded for that. But Plaintiff has pointed to at least minimal evidence

that, at the time of the incident, it was too early to declare “Mission

Accomplished.”

We are at the stage of pleading, not proof. Mr. Walker has adequately

alleged that “[the City’s] continued official tolerance of repeated misconduct

facilitate[d] similar unlawful actions in the future,” including the use of

excessive force. Roman, 914 F.3d at 799. It follows that Walker has adequately

pled a municipal custom and proximate causation under § 1983. Whether

Newark had sufficiently addressed its officers’ use of excessive force and put its

problems behind it is an issue that requires development in discovery.

In sum, Newark’s motion to dismiss Count 11 is granted as to the § 1983

false arrest claim, but denied as to the § 1983 excessive force claim.

iii. Count 4: Official Misconduct

Under Count 4, Plaintiff asserts a state law claim of official misconduct

under N.J. Stat. Ann. § 2C:30-2 of the New Jersey Criminal Code.13

Defendants assert primarily that Mr. Walker cannot hold them civilly

liable under a criminal statute. Plaintiffs concede that “N.J.S. 2C:30-2(a)

13 N.J. Stat. Ann. § 2C:30-2 of the New Jersey Criminal Code states:

A public servant is guilty of official misconduct when, with purpose to

obtain a benefit for himself or another or to injure or to deprive another

of a benefit:

a. He commits an act relating to his office but constituting an

unauthorized exercise of his official functions, knowing that such

act is unauthorized or he is committing such act in an

unauthorized manner; or

b. He knowingly refrains from performing a duty which is imposed

upon him by law or is clearly inherent in the nature of his office.

Official misconduct is a crime of the second degree. If the benefit

obtained or sought to be obtained, or of which another is deprived

or sought to be deprived, is of a value of $200.00 or less, the

offense of official misconduct is a crime of the third degree.

affords no private right of action.’” (DE 24 at 22)14 Accordingly, to the extent

Count 4 asserts a claim for official misconduct under N.J. Stat. Ann. § 2C:30-

4—and it is titled as such—this claim is dismissed as to all Defendants.

Plaintiffs assert in their brief that Count 4 also contains state and federal

civil rights claims. Like many of the counts, it contains a redundant laundry

list which, if taken literally, would tend to imply that every count asserts every

theory against every Defendant. The division of counts, however, must mean

something, and I will not read the Complaint that way. To the extent Plaintiff

actually intends to assert that his constitutional rights were violated under

Count 4, it would duplicate Counts 10 and 11, and would be subject to the

same analysis. Accordingly, I would dismiss what remains of Count 4 as

duplicative.

iv. Count 1: NJCRA

Count 1 alleges under the NJCRA the same violations that are alleged

under § 1983 in Counts 10 and 11. The NJCRA, N.J. Stat. Ann. § 10:6-2(c),

provides that “[a]ny person who has been deprived of any substantive rights,

privileges or immunities secured by the Constitution or laws of this State by a

person acting under color of law, may bring a civil action for damages.”

The New Jersey State Legislature, when it enacted the NJCRA, intended

it to parallel 42 U.S.C. § 1983, and sought to incorporate existing § 1983

jurisprudence. Perez, 218 N.J. at 515; see also RaCapt. Mos v. Flowers, 429

N.J. Super. 13, 23 (App. Div. 2012) (stating that NJCRA was “modeled on the

federal civil rights law which provides for a civil action for deprivation of civil

14 In general, New Jersey courts “will not allow private plaintiffs to sue for

injunctions to enforce the state penal laws. . . Violations of these laws ‘are left to the

agencies charged with the enforcement of the criminal laws.’” Matter of State Comm’n

of Investigation, 108 N.J. 35, 41 (1987) (citing Trisolini v. Meltsner, 23 N.J. Super. 204,

208–09 (N.J. Super. Ct. App. Div. 1952)); see also Jones v. Somerset Cty. Prosecutor’s

Office, No. CV 15-2629 (FLW), 2017 WL 1337432, at *9 (D.N.J. Apr. 7, 2017) (“Plaintiff

has not pleaded that he has a private right of action under [N.J. Stat. Ann. § 2C:30-2],

and the Court has not found authority for that proposition. Indeed, it appears that

Plaintiff has no private right of action to enforce alleged violations of the criminal

code.” (citations omitted)).

rights.” (citations omitted)) Ingram v. Twp. of Deptford, 911 F. Supp. 2d 289,

298 (D.N.J. 2012); Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443

(D.N.J. 2011). Thus, the NJCRA is construed nearly identically to Section 1983.

The parties have not suggested any distinction between the Count 1

claims under NJCRA and their Count 10 and 11 counterparts under 42 U.S.C.

§ 1983. Therefore, for the reasons outlined in Section III.B.ii, supra,

Defendant’s motion to dismiss Count 1 is granted as to Plaintiff’s false arrest

claim, but denied as to the claim of excessive force.

C. State Tort Claims

I turn next to Plaintiffs’ state-law tort claims, asserted pursuant to the

NJTCA. As relevant to the motion to dismiss, five claims are at issue:

Count 2: Negligent Infliction of Emotional Distress (“NIED”);

Count 3: Intentional Infliction of Emotional Distress (“IIED”);

Count 6: Negligent Supervision, Hiring and Retention;

Count 7: Negligence; and

Count 13: Per quod claim of Mrs. Walker.

i. Standard for Liability and Immunity under the NJTCA

The New Jersey Tort Claims Act (“NJTCA”), N.J. Stat. Ann. § 59–1–1, et

seq., sets the conditions under which public entities and public employees can

be held liable in tort.

The NJTCA permits respondeat superior liability, but limits it. Under the

NJTCA, a public entity is immune from liability except where the injury is

“proximately caused by an act or omission of a public employee within the

scope of his employment in the same manner and to the same extent as a

private individual under like circumstances.” N.J. Stat. Ann. § 59:2-2. A public

entity is not liable, however, for “acts or omissions of a public employee

constituting a crime, actual fraud, actual malice, or willful misconduct.” Id. §

59:2–10. Moreover, “A public entity is not liable for any injury caused by

adopting or failing to adopt a law or by failing to enforce any law.” Id. § 59:2-4.

As for public employees, “[e]xcept as otherwise provided by this act, a

public employee is liable for injury caused by his act or omission to the same

extent as a private person.” N.J. Stat. Ann. § 59:3-1(a). However, a public

employee is absolutely immune from “an injury where a public entity is

immune from liability for that injury,” Id. § 59:3-1(c), and “[a] public employee

is not liable for an injury caused by his adoption of or failure to adopt any law

or by his failure to enforce any law.” Id. § 59:3-5. The NJTCA grants qualified

immunity to a public employee “if he acts in good faith in the execution or

enforcement of any law. Nothing in this section exonerates a public employee

from liability for false arrest or false imprisonment.” Id. § 59:3-3.

Neither form of immunity under the NJTCA extends to public employees

if their conduct “was outside the scope of [their] employment or constituted a

crime, actual fraud, actual malice, or willful misconduct.” Id. § 59:3–14(a).

ii. Count 2: NIED

Plaintiff does not dispute that Count 2, a claim of NIED, must fail as to

Newark. (See DE 24 at 29 (“Plaintiff has produced evidence in conjunction with

the NTC filed with Newark that he has suffered physical injury and that

psychological injury subsequently also arose from the incident which is

adequate to allow him to recover under either recognized IED theory from the

defendant police, but not Newark.” (emphasis added)) That concession leaves

Count 2 intact as to the Individual Defendants, so I consider the motion to

dismiss as to them.

Under New Jersey Law, a claim for NIED is “understood as negligent

conduct that is the proximate cause of emotional distress in a person to whom

the actor owes a legal duty to exercise reasonable care.” Decker v. Princeton

Packet, Inc., 116 N.J. 418, 561 A.2d 1122, 1128 (N.J. 1989). To succeed,

Plaintiff must prove the following: (1) “a duty of reasonable care” was owed by

the defendant to the plaintiff, (2) that duty was breached, (3) the “plaintiff

suffered severe emotional distress,” and (4) the breach proximately caused

Plaintiff’s injury. Russo v. Nagel, 358 N.J. Super. 254, 817 A.2d 426, 435 (N.J.

Super. Ct. App. Div. 2003). “[T]he emotional distress suffered by plaintiff must

be so severe that no reasonable [person] could be expected to endure it.”

Ingraham v. Ortho-McNeil Pharm., 422 N.J. Super. 12, 20 (N.J. Super Ct. App.

Div. 2011).

The NJTCA adds an additional requirement under Section 59:9-2(d),

which contains a “verbal threshold requirement” in relation to damages for

pain and suffering. The section provides as follows:

No damages shall be awarded against a public entity or public

employee for pain and suffering resulting from any injury;

provided, however, that this limitation on the recovery of damages

for pain and suffering shall not apply in cases of permanent loss of

a bodily function, permanent disfigurement or dismemberment

where the medical treatment expenses are in excess of $3,600.00.

N.J.S.A. § 59:2-2(b); see also DelaCruz v. Borough of Hillsdale, 183 N.J. 149,

162 (N.J. 2005) (referring to this subsection as the “verbal threshold

requirement”).

The Complaint asserts that on the evening of June 2, 2018, Mr. Walker

was in pain and fear. (Compl. ¶ 24) As a result, he asserts in general terms, he

has become “permanently depressed,” has trouble sleeping, has nightmares,

has a fear of the police, has permanent physical scars, and has suffered a

deterioration in his relationship with his wife. (Id. ¶¶ 25–27) These allegations

of emotional distress would all fall under the category of “pain and suffering,”

which does not meet the verbal threshold. See Gretzula v. Camden Cty. Tech.

Sch. Bd. Of Educ., 965 F. Supp. 2d 478, 490 (D.N.J. 2013) (stating a school

board employee’s IIED claim of mental anguish and emotional distress was

barred); PBA Local No. 38 v. Woodbridge Police Dept., 832 F. Supp. 808, 821

(D.N.J. 1993) (finding injuries consisting of humiliation, mental pain and

anguish “fall within the purview of pain and suffering”); Mercado v. State, 515

A.2d 804, 808 (N.J. Super. Ct. Law. Div. 1985) (“[E]motional stress, distress,

anxiety, and embarrassment ... provide no basis for recovery ... under the Tort

Claims Act.”); but see Collins v. Union County Jail, 150 N.J. 407, 413 (N.J

1997)) (holding plaintiff’s claim of permanent psychological injury in form of

posttraumatic stress disorder resulting from being raped by corrections officer

may constitute a “permanent loss of a bodily function” even absent residual

physical injury).

The only lasting physical injury alleged in the Complaint appears to be a

scar. However, there are no allegations concerning the extent to which this scar

continues to cause physical pain to Mr. Walker. Mr. Walker further alleges that

he is permanently depressed, but there are no factual or medical allegations in

support of that conclusory self-diagnosis. Accordingly, I find that Mr. Walker

has failed to assert facts supporting a NIED claim.

The motion to dismiss Count 2 is therefore granted.

iii. Count 3: IIED

Count 3, a claim for IIED, is pled only against the Individual Defendants.

(Compl. at 16)

In his opposition brief, Plaintiff states that he wished to name Newark as

well. (See DE 24 at 26) “It is axiomatic that the complaint may not be amended

by the briefs in opposition to a motion to dismiss.” Penn. v. Pepsico, Inc., 836

F.2d 173, 181 (3d Cir. 1988). In any event, such an amendment would be

futile. A public entity is not liable under the NJTCA for “acts or omissions of a

public employee constituting a crime, actual fraud, actual malice, or willful

misconduct.” Id. § 59:2–10. Plaintiff concedes that he cannot maintain a cause

of action for IIED, an intentional tort, against Newark. (See DE 24 at 29) See

also Soto v. City of Newark, 72 F. Supp. 2d 489, 497 (D.N.J. 1999) (“[T]he Court

cannot find Defendants – public entities – liable for [IIED].”) (citing N.J. Stat.

Ann § 59:2-10); McDonough v. Jorda, 214 N.J.Super. 338, 350 (N.J. Super. Ct.

App. Div. 1986) (interpreting 59:2–10 to provide that vicarious liability does not

apply when a municipal employee commits an intentional tort); Pacifico v.

Froggatt, 249 N.J. Super. 153, 155 (Law Div.1991) (holding that 59:2–10 said

public entity was not liable for the willful acts of its employee).15

15 Count 5 (assault), asserted only against the Individual Defendants, would

therefore not be properly asserted against Newark. See Sims v. Tropicana Entm’t, Inc.,

The Section 59:2-10 bar does not apply to the Individual Defendants.

This claim nevertheless fails as to them. As noted above, the allegations fail to

surpass the verbal threshold, just as they did for NIED.

Accordingly, the motion to dismiss Count 3 is granted.

iv. Count 6: Negligent Supervision, Hiring, and Retention

Defendants move to dismiss Plaintiff’s negligent hiring and supervision

claims, asserting that because these “allegations go directly to the failure to

enforce the law, the City is immune to any such claims under N.J.S.A. §§ 59:2-

4, 59:3-5.” (DE 9-1 at 24–25) I need not explore the contours of such

immunity, because I find that Count 6 fails to state a claim.

As explained by the New Jersey Supreme Court in DiCosala v. Kay, “the

tort of negligent hiring addresses the risk created by exposing members of the

public to a potentially dangerous individual, while the doctrine of respondeat

superior is based on the theory that the employee is the agent or is acting for

the employer.” 91 N.J. 159, 172-73 (1982); V.A. ex rel., M.A. v. New Jersey Nat.

Guard Youth Challenge Program, No. CIV A 06-347 JBS, 2007 WL 2010940, at

*4 (D.N.J. July 9, 2007) (explaining same). Thus, “a claim based on negligent

hiring or negligent supervision is separate from a claim based on respondeat

superior.” Hoag v. Brown, 397 N.J. Super. 34, 54 (App. Div. 2007). The NJTCA

permits claims of negligent hiring or negligent supervision for acts committed

outside the scope of employment, which would not be actionable under

respondeat superior. Id. (collecting cases); see also Adams v. City of Camden,

461 F.Supp.2d 263, 269–70 (D.N.J. 2006).

Under New Jersey Law,

the tort of negligent hiring has as its constituent elements two

fundamental requirements. The first involves the knowledge of the

employer and foreseeability of harm to third persons. An employer

will only be held responsible for the torts of its employees beyond

No. 13-1981, 2016 WL 4801431, at *3 (D.N.J. Sept. 9, 2016) (“Assault and battery are

torts that require a showing of intentional or willful misconduct. Therefore, the

[municipality] is immune from liability for the assault and battery claims.” (citation

omitted)).

the scope of the employment where it knew or had reason to know

of the particular unfitness, incompetence or dangerous attributes

of the employee and could reasonably have foreseen that such

qualities created a risk of harm to other persons.

DiCosala v. Kay, 91 N.J. 159, 173 (1982).

“Like the tort of negligent hiring, negligent supervision is separate from

the theory of respondeat superior because it covers acts committed outside of

the scope of employment. Employers have a duty to supervise employees, and

liability may be imposed if an employer fails to perform that duty.’” Sullivan v.

Marina Dist. Dev. Co., LLC, No. CIV. 10-4204 RBK/JS, 2012 WL 993417, at *3

(D.N.J. Mar. 23, 2012) (citing Dixon v. CEC Entm’t, Inc., 2008 WL 2986422, at

*16 (N.J. Super. Ct. App. Div. Aug.6, 2008) (per curiam)). Thus,

liability may be imposed on an employer who fails to perform its duty to

train and supervise its employees. Tobia v. Cooper Hosp. Univ. Med. Ctr.,

136 N.J. 335, 346, 643 A.2d 1 (1994). Because this is a negligence claim,

in order to establish a prima facie claim for negligent training, plaintiff

must show that (1) the defendant owed a duty of care to the plaintiff, (2)

defendant breached that duty of care, (3) defendant’s breach was the

proximate cause of plaintiff’s injury, and (4) defendant’s breach caused

actual damages to plaintiff. Weinberg v. Dinger, 106 N.J. 469, 484, 524

A.2d 366 (1987).

Vasquez v. Gloucester Cty., No. CIV.A. 13-4146 JEI, 2015 WL 3904550, at *5

(D.N.J. June 25, 2015).

Here, the Complaint does not contain any facts to suggest that Newark

had reason to know that any of the specific Individual Defendants were

particularly unfit, incompetent, or dangerous, or that Newark could have

foreseen that these officers possessed qualities that created a risk of harm to

Plaintiff. Furthermore, the Complaint does not provide sufficient facts to

suggest that Newark breached its duty of care to Plaintiff by providing

inadequate supervision of or hiring these officers, or that the deficient

supervision or decision to hire these officers was a proximate cause of

Plaintiff’s injuries. Rather, the Complaint alleges in a conclusory manner that

Newark was responsible for the hiring and supervising of these Officers, and

failed to adequately do so thus causing harm to Walker. (See Compl. at 20)

Likewise, the Complaint states in a conclusory manner that Newark knew

based on these Officer’s “personnel files and improper actions” that it had

reason to know that these officers would pose an unreasonable risk to Plaintiff.

(Id. at 21) Nothing about the officers’ personnel files or prior actions is alleged;

Plaintiff is hypothesizing, not reporting facts. These allegations are insufficient

to assert a claim for negligent supervision, hiring, and retention.

Accordingly, I will grant Newark’s motion to dismiss Count 6.

v. Count 7: Negligence by Police Officers

Count 7 asserts a claim for negligence: “Defendants, or any of them,

owed Plaintiff a duty to safely and legally detain Plaintiff and use no more than

reasonable force in arresting and detaining Plaintiff.” (Compl. at 22) Here, says

the Complaint, officers failed to intervene when other officers used excessive

force in the course of detaining Mr. Walker. (Id.)

Newark asserts that Count 7 is really a claim that the officers failed to

intervene. If the claim is viewed in that way, says Newark, it is immune from

liability because the Individual Defendants are immune. The Individual

Defendants are immune because “[a] public employee is not liable for an injury

caused by his adoption of or failure to adopt any law or by his failure to enforce

any law.” N.J. Stat. Ann. § 59:3-5. Again, I need not reach the immunity issue

because Count 7 fails to state a claim.

Count 7 seeks to hold Newark and the Individual Defendants liable

under a negligence theory. The alleged underlying conduct, however, is

intentional; the officers allegedly assaulted Mr. Walker or acquiesced while

other officers did so. And indeed, the Complaint contains an assault claim

(Count 5), which no one has moved to dismiss. No facts are pled suggesting

failure to exercise due care; should any such facts emerge in discovery, I will

entertain a motion to amend.

For now, I will further streamline this ungainly Complaint by granting

Defendants’ motion to dismiss Count 7.

vi. Count 13: Per Quod Claim

Count 13 a per quod claim that Mrs. Walker was deprived of, and will

continue to suffer, the loss of emotional and physical support of her husband

as a result of his injuries. (Compl. at 30)16 Newark moves to dismiss this claim,

asserting that Mr. Walker’s pre-suit notice of claim did not refer to his wife or

any potential claims she might assert. (DE 9-1 at 20–21) Accordingly, says

Newark, this claim is barred for failure to comply with the NJTCA’s notice

requirements. (Id).

The NJTCA imposes certain prerequisites to the filing of a lawsuit. “[N]o

action shall be brought against a public entity or public employee under this

act unless the claim upon which it is based shall have been presented in

accordance with the procedure set forth in this chapter.” N.J. Stat. Ann. §

59:8-3. Such a pre-suit notice of claim is not required to list causes of action,

but must contain certain facts about the claimant and the nature of the injury;

16 Plaintiffs argue in their briefing that Count 13 asserts a “14th Amendment”

derivative claim under Section 1983 because she has been “burdened by Mr. Walker’s

inability to function at the physical and psychological level existing prior to the illegal

arrest and assault, and she therefore retains a Constitutional right to seek redress

and damages for the amount of diminution of such happiness.” (DE 24 at 24–25) I find

nothing in Count 13 that asserts a derivative constitutional claim nor do I find that

Plaintiffs could amend Mrs. Walker’s per quod claims so as to assert derivative

constitutional claim through their motion to dismiss briefing. See Section III.C.iii,

supra. In any event, such effort to amend this claim would be futile. As this Court held

when surveying cases faced with this very question:

[T]he majority of federal courts to consider the question of whether or not

section 1983 supports a claim for loss of consortium have decided that it does

not. Shaw v. Stroud, 13 F.3d 791, 805 (4th Cir.1994); Niehus v. Liberio, 973

F.2d 526, 534 (7th Cir.1992); Stallworth v. City of Cleveland, 893 F.2d 830, 838

(6th Cir.1990). In Niehus, the Seventh Circuit based its holding on the notion

that the Constitution protects only a limited set of important rights; it does not

afford protection to the kind of lesser benefits encompassed by the concept of

“consortium.” 973 F .2d at 534. In Stallworth, the Sixth Circuit took a subtly

different approach, reasoning that the wording of section 1983 afforded relief

only to persons whose rights were actually invaded—not to persons who

suffered harm from the deprivation of another person’s rights. 893 F.2d at 838.

Armstrong v. Sherman, No. CIV.09-716, 2010 WL 2483911, at *5 (D.N.J. June 4,

2010).

it must be filed with the department or agency involved in the alleged wrongful

act; and it must be signed by the claimant. Id. §§ 59:8–4, 8–6, 8–7.

Section 59:8-8 imposes a 90-day time limit on filing a notice if the claim

is one for personal injury. A “judge of the Superior Court” is granted the

discretion to permit a claimant who fails to comply with the 90-day deadline to

“file such notice at any time within one year after the accrual of his claim

provided that the public entity or the public employee has not been

substantially prejudiced thereby.” Id. § 59:8-9; see also Ganame v. Univ. Hosp.,

No. A-2087-17T2, 2019 WL 1828308, at *3 (N.J. Super. Ct. App. Div. Apr. 25,

2019) (“But N.J.S.A. 59:8-9 states that at the discretion of a Superior Court

judge, a late notice of claim may be filed . . . .”). Such an application must be

“supported by affidavits based upon personal knowledge of the affiant showing

sufficient reasons constituting extraordinary circumstances for his failure to

file notice of claim within” 90 days. Id.

The Defendants do not deny that Mr. Walker timely filed a notice of tort

claim. That notice of claim, however, did not refer to Mrs. Walker or otherwise

inform Defendants that she might assert a claim. Here, Newark primarily relies

on Madej v. Doe, 194 N.J. Super. 580, 584 (Ch. Div. 1984) and Alberts v.

Gaeckler, 446 N.J. Super. 551, 563 (Law. Div. 2014). The City cites Madej for

the proposition that a “‘per quod claim is independent from and not derivative

of [a spouse’s] personal injury claim’” (DE 9-1 at 20) and Alberts for the

proposition that spouses asserting loss of consortium claims must file a notice

of claim. (Id.)

I am not persuaded that these cases are relevant to the issue here, which

concerns the scope of the notice of claim. New Jersey appellate courts have

repeatedly held that per quod claims are derivative claims, and hence closely

related to the underlying claim of the spouse. See Kibble v. Weeks Dredging &

Const. Co., 161 N.J. 178, 190 (N.J. 1999) (stating that “a per quod claim is

derivative of the injured spouse’s personal injury cause of action” but

independent for purposes of assessing damages); see also Velarde v. Andre, No.

A-3344-14T2, 2016 WL 4216617, at *1 (N.J. Super. Ct. App. Div. Aug. 11,

2016) (“[W]e will refer to ‘plaintiff’ in the singular because his per quod claims

are derived from his relationship as Ana Velarde’s husband.”); Milacci v. Mato

Realty Co., 217 N.J. Super. 297, 306 (N.J. Super. Ct. App. Div. 1987)

(disapproving of the holding in Madej).

In Milacci, a wife filed a notice of claim that said nothing about the per

quod claim later asserted by her husband. 217 N.J. Super. at 299. The

Appellate Division held that it was not necessary for the husband to file a

separate notice of claim, which would be redundant: “[A]ny investigation made

by the State to determine the merits of the wife’s claim necessarily would cover

the same ground as the per quod claim of the husband.” Id. at 306. Milacci

reasoned that “[i]f the notice filed by the wife had included the words ‘and on

behalf of my husband’ there could be no doubt that his claim would be fully

protected. We do not believe he should be deprived of his day in court because

of so minor an omission. In light of N.J.S.A. 59:8–6 we perceive of no evil or

harm which will befall governmental agencies because of our holding. We

disapprove the holding of the Law Division in Madej.” Id. Milacci therefore

reversed the dismissal of the husband’s claim and found that the notice of tort

claim was adequate and timely.

I follow Milacci here, and find that Ms. Walker’s derivative loss of

consortium claim should not be dismissed simply because Mr. Walker’s timely

notice of tort claim did not mention Ms. Walker’s potential per quod claim. The

defendants are not prejudiced. They were placed on notice of litigation arising

from this barroom incident, and the investigation into Mr. Walker’s claims

would sufficiently, if not completely, cover the facts essential to Mrs. Walker’s

derivative claim.

Accordingly, Defendants’ motion to dismiss Count 13 based on failure to

file a notice of tort claim is denied.

IV. Conclusion

For the reasons set forth above, I will grant in part and deny in part the

motion to dismiss (DE 9) of Newark and the Individual Defendants (DE 37).

The following claims are dismissed with prejudice, because amendment

would necessarily be futile:

Count 3 (IIED) asserted against Newark

Counts 9 and 12 (Punitive Damages) asserted as standalone

claims against the Individual Defendants

All punitive damages claims against Newark

Because this is an initial dismissal, the following claims are dismissed

without prejudice:

Count 2 (NIED) asserted against all Defendants

Count 3 (IIED) asserted against the Individual Defendants,

Count 4 (Official Misconduct) asserted against all Defendants;

Count 6 (Negligent Supervision/Hiring) asserted against Newark

Count 7 (Negligence) asserted against all Defendants

Count 8 (Conspiracy to Violate Constitutional Rights) asserted

against the Individual Defendants

Counts 1 (NJCRA), 10 (Section 1983), and 11 (Section 1983), as

against all Defendants insofar as they assert claims for

false arrest

Counts 10 and 11 insofar as they assert claims under Sections

1981, 1985, 1986, and 1988

The claims that now remain are as follows:

Count 1 (NJCRA) as against all Defendants for use of excessive

force

Count 5 (Assault) as against the Individual Defendants

Count 10 (Section 1983) asserted against the Individual

Defendants for use of excessive force

Count 11 (Section 1983) as against Newark for use of excessive

force

Count 13 (Per quod) as against all Defendants

The court’s previously-filed order (DE 38) remains in effect.

Dated: July 1, 2020

/s/ Kevin McNulty

____________________________________

Kevin McNulty

United States District Judge