WATERS v. SAEZ

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

EDDIE WATERS, :

:

Plaintiff, : Civ. No. 19-8811 (NLH) (AMD)

:

v. : OPINION

:

JARRELL SAEZ, et al., :

:

Defendants. :

______________________________:

APPEARANCES:

Solomon Mordechai Radner, Esq.

Johnson Law, PLC

Excolo Law PLLC

535 Griswold St.

Suite 2632

Detroit, MI 48226

Conrad J. Benedetto, Esq.

The Law Offices of Conrad J. Benedetto

1615 S. Broad Street

Philadelphia, PA 19148

Attorneys for Plaintiff

Gurbir S. Grewal, New Jersey Attorney General

Michael T. Moran, Deputy Attorney General

State Of New Jersey, Office of the Attorney General

25 Market St.

PO Box 116

Trenton, NJ 08625

Attorneys for Defendant Ron Henry

HILLMAN, District Judge

Defendant Sergeant Ron Henry moves to dismiss Plaintiff

Eddie Waters’ amended complaint. ECF No. 50. For the following

reasons, the motion will be granted.

I. BACKGROUND

The Court limits its recitation of the facts to those

necessary to resolve the present motion. On August 1, 2017,

Plaintiff was being processed into the Cumberland County Jail in

Bridgeton, New Jersey on a defiant trespassing charge. ECF No.

29 ¶ 22. He was placed into a cell with two other people. Id.

¶ 23. Plaintiff “exchanged words” with Defendant Officer Saez;

Officer Saez subsequently put Plaintiff in handcuffs and removed

the other two people from Plaintiff’s cell. Id. ¶¶ 24-25.

Afterwards, Officer Saez assaulted Plaintiff, who was still

handcuffed, in the cell. Id. ¶ 26. Other officers arrived and

helped to assault Plaintiff. Id. ¶ 27. Officer Saez later

resigned from the Cumberland County Department of Corrections.

Id. ¶ 41.

Sgt. Ron Henry of the Cumberland County Prosecutor’s Office

took part in investigating the incident. Id. ¶ 46. Plaintiff

alleges that Sgt. Henry “instructed the Special Investigations

Unit investigator that, pending a legal review, the investigator

was not to interview Defendant Saez or any of the individuals

physically involved.” Id. ¶ 45. “Sgt. Henry specifically

instructed the investigator to only interview the officers that

were present, but not physically involved and not to interview

the officers involved in the incident.” Id.

Plaintiff filed his original complaint on March 21, 2019

against the Cumberland County officers and medical personnel who

allegedly did not treat Plaintiff’s injuries. ECF No. 1.

Magistrate Judge Donio granted Plaintiff’s motion to file his

amended complaint, ECF No. 28, and Plaintiff filed the amended

complaint on January 31, 2020, ECF No. 29.

Count IV of the amended complaint includes an allegation

that Sgt. Henry is liable as a supervisor for the actions of the

Cumberland County officers because he attempted to cover up

their actions. Id. ¶ 90. Sgt. Henry now moves to dismiss this

claim, the only allegation against him in the amended complaint,

under Federal Rules of Civil Procedure 12(b)(1) and (6). ECF

No. 50. Plaintiff opposes the motion. ECF No. 51.

II. STANDARD OF REVIEW

A party may move to dismiss a complaint for lack of subject

matter jurisdiction under Federal Rule of Civil Procedure

12(b)(1). Because federal courts are courts of limited

jurisdiction, the party seeking to invoke the court’s

jurisdiction bears the burden of proving the existence of

subject matter jurisdiction. See Kokkonen v. Guardian Life Ins.

Co., 511 U.S. 375, 377 (1994). The court’s jurisdiction may be

challenged either facially based on the legal sufficiency of the

claim or factually based on the sufficiency of a jurisdictional

fact. Gould Elecs. v. U.S., 220 F.3d 169, 178 (3d Cir. 2000),

modified on other grounds by Simon v. United States, 341 F.3d

193 (3d Cir. 2003).

A facial attack “challenges subject matter jurisdiction

without disputing the facts alleged in the complaint, and it

requires the court to ‘consider the allegations of the complaint

as true.’” Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir.

2016) (quoting Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3

(3d Cir. 2006)). The defendant bears the burden of showing no

claim has been stated. “In contrast, in a factual attack under

Rule 12(b)(1), the court may consider and weigh evidence outside

the pleadings to determine if it has jurisdiction. The

plaintiff has the burden of persuasion to convince the court it

has jurisdiction.” Gould Elecs., 220 F.3d at 178.

When considering a motion to dismiss a complaint for

failure to state a claim, Fed. R. Civ. P. 12(b)(6), the Court

must accept all well-pleaded allegations in the complaint as

true and view them in the light most favorable to the non-moving

party. A motion to dismiss may be granted only if the plaintiff

has failed to set forth fair notice of what the claim is and the

grounds upon which it rests that make such a claim plausible on

its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

Although Rule 8 does not require “detailed factual allegations,”

it requires “more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citing Twombly, 550 U.S. at 555).

In reviewing the sufficiency of a complaint, the Court must

“tak[e] note of the elements [the] plaintiff must plead to state

a claim. Second, it should identify allegations that, because

they are no more than conclusions, are not entitled to the

assumption of truth. Finally, [w]hen there are well-pleaded

factual allegations, [the] court should assume their veracity

and then determine whether they plausibly give rise to an

entitlement to relief.” Connelly v. Lane Const. Corp., 809 F.3d

780, 787 (3d Cir. 2016) (alterations in original) (internal

citations and quotation marks omitted). “[A] complaint’s

allegations of historical fact continue to enjoy a highly

favorable standard of review at the motion-to-dismiss stage of

proceedings.” Id. at 790.

III. DISCUSSION

A. Eleventh Amendment Immunity

Sgt. Henry argues the claim against him in his official

capacity must be dismissed as he is entitled to sovereign

immunity. Here, Sgt. Henry is making a facial attack that

Plaintiff’s claims are barred by sovereign immunity and,

therefore, the Court accepts the allegations in the amended

complaint as true and utilizes the standard for dismissal under

Rule 12(b)(6).

The Eleventh Amendment to the United States Constitution

provides that, “[t]he Judicial power of the United States shall

not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by

citizens of another State, or by Citizens or Subjects of any

Foreign State.” U.S. Const. amend. XI. “[A] suit against a

state official in his or her official capacity is not a suit

against the official but rather is a suit against the official’s

office. As such, it is no different from a suit against the

State itself.” Will v. Michigan Dep’t of State Police, 491 U.S.

58, 71 (1989).

Counties and municipalities are not entitled to Eleventh

Amendment immunity. Estate of Lagano v. Bergen Cnty.

Prosecutor’s Office, 769 F.3d 850, 857 (3d Cir. 2014). The

state must be “the real party in interest” for Sgt. Henry to be

entitled to Eleventh Amendment immunity in his official

capacity. Fitchik v. N.J. Transit Rail Operations, 873 F.2d

655, 658 (3d Cir.) (en banc), cert. denied, 493 U.S. 850 (1989).

“To determine whether the state is the real party in interest,

this Court considers three factors: (1) whether the money to pay

for the judgment would come from the state; (2) the status of

the agency under state law; and (3) what degree of autonomy the

agency has.” Estate of Lagano, 769 F.3d at 857.

1. Source of Funds

The New Jersey Supreme Court has “held that when county

prosecutors and their employees are involved in law enforcement

functions under general State supervisory authority, the State

should bear the responsibility for defense and indemnification

for litigation generated by such activities.” Gramiccioni v.

Dep’t of Law & Pub. Safety, 235 A.3d 129, 131 (N.J. 2020)

(requiring state to defend and indemnify county prosecutor’s

office in federal action under § 1983) (citing Wright v. State,

778 A.2d 443 (N.J. 2001)). “[T]he test for determining in which

capacity a county prosecutor acts should ‘focus on whether the

function that the county prosecutors and their subordinates were

performing during the alleged wrongdoing is a function that

traditionally has been understood to be a State function and

subject to State supervision in its execution.’” Id. at 141

(quoting Wright, 778 A.2d at 463).

The New Jersey Attorney General’s Office has entered an

appearance on behalf of Sgt. Henry. ECF No. 45. The Attorney

General’s Office further states that “[a]ny judgment rendered

against Sergeant Henry would derive from the State of New

Jersey, as the State has a duty to indemnify and defend county

prosecutors and their subordinates.” ECF No. 50-1 at 25

(internal quotation marks omitted). See also Chasin v.

Montclair State Univ., 732 A.2d 457, 461 (N.J. 1999) (“The

State’s duty to indemnify an employee parallels the duty to

defend. N.J.S.A. 59:10–1 requires the State to indemnify

employees for whom a defense is provided.”). “Based on this

statement, the fact that the Office of the Attorney General is

representing [Sgt. Henry], and the New Jersey Supreme Court’s

explanation of the State’s obligations in Wright, the State

appears to have agreed to represent and indemnify [Sgt. Henry],

satisfying the first Fitchik factor.” Hof v. Janci, No. 17-295,

2017 WL 3923296, at *3 (D.N.J. Sept. 7, 2017).

2. Status Under Law

The second factor focuses on the status of the agency under

state law. The focus of the second factor is “whether state law

treats an agency as independent, or as a surrogate for the

state.” Fitchik, 873 F.2d at 662. “The office of county

prosecutor in the State of New Jersey is a constitutionally

established office.” Coleman v. Kaye, 87 F.3d 1491, 1500 (3d

Cir. 1996). “Each prosecutor [is] vested with the same powers

and [is] subject to the same penalties, within his [or her]

county, as the attorney general shall by law be vested with or

subject to . . . .” N.J.S.A. § 2A:158–5.

“It is well established that when county prosecutors

execute their sworn duties to enforce the law by making use of

all the tools lawfully available to them to combat crime, they

act as agents of the State.” Coleman, 87 F.3d at 1499. As Sgt.

Henry’s investigation was related to the law enforcement duties

of the prosecutor’s office, he is not treated as an independent

entity. See Hof, 2017 WL 3923296, at *4; Gramiccioni v. Dep’t

of Law & Pub. Safety, 235 A.3d 129, 141 (N.J. 2020). The second

Fitchik factor is satisfied.

3. Degree of Autonomy

Finally, the Court must consider the degree of autonomy the

prosecutor’s office has from the State. The County Detectives

and County Investigators Act “authorizes the prosecutor to

appoint persons ‘to be known as county detectives, to assist the

prosecutor in the detection, apprehension, arrest and conviction

of offenders against the law.’” Dunne v. Fireman’s Fund Am.

Ins. Co., 353 A.2d 508, 511 (N.J. 1976) (quoting N.J.S.A. §

2A:157—2). Although there is an employer-employee relationship

with the county, an investigator “whose actions do involve the

enforcement of the criminal laws does not enjoy a comparable

degree of autonomy from the State government.” Wright v. State,

778 A.2d 443, 464 (N.J. 2001). “We are persuaded that when

county prosecutors and their subordinates are involved in the

investigation and enforcement of the State's criminal laws, they

perform a function that has traditionally been the

responsibility of the State and for which the Attorney General

is ultimately answerable.” Id.

As part of his investigation, Sgt. Henry would be required

to interpret and apply any guidelines and directives regarding

the use of force by law enforcement officers.1 “Training and

policy decisions that require legal knowledge and discretion are

related to prosecutorial functions and are unlike administrative

tasks concerning personnel.” Hyatt v. Cty. of Passaic, 340 F.

App’x 833, 836–37 (3d Cir. 2009) (citing Van de Kamp v.

Goldstein, 555 U.S. 335, 344 (2009)). As Sgt. Henry would be

bound by any applicable guidelines on the use of force, he would

not have been autonomous from the State during his

investigation. See Gramiccioni v. Dep’t of Law & Pub. Safety,

235 A.3d 129, 144-43 (N.J. 2020) (State required to indemnify

prosecutor’s office in § 1983 action because prosecutor and

detectives had to interpret and apply Attorney General’s

Directive on returning firearms seized from police officers

because of accusations of domestic violence). The third Fitchik

factor is satisfied.

1 “A corrections officer is a law-enforcement officer with full

police powers, N.J.S.A. 2A:154-4.” Matter of Tonner, No. A-

2071-18T2, 2019 WL 7287112, at *5 (N.J. Super. Ct. App. Div.

Dec. 30, 2019).

4. Conclusion

The Court finds that the Fitchik factors have been

satisfied. Therefore, Sgt. Henry acted on behalf of the State

during his investigation, and he is entitled to share in the

State’s Eleventh Amendment immunity in his official capacity.

B. Supervisory Liability

In his individual capacity, Sgt. Henry moves for dismissal

of the sole count against him for failure to state a claim.

Fed. R. Civ. P. 12(b)(6). Plaintiff alleges he “attempted to

cover up the assault of Mr. Waters and ordered the special

investigator not to interview those accused of assaulting Mr.

Waters. Defendant Sgt. Henry at least implicitly authorized,

approved or knowingly acquiesced in the unconstitutional conduct

of Defendant Officers.” ECF No. 4 ¶ 90.

“Government officials may not be held liable for the

unconstitutional conduct of their subordinates under a theory of

respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676

(2009). A supervisor may be liable for the actions of a

subordinate if they “established and maintained a policy,

practice or custom which directly caused the constitutional

harm,” or “participated in violating Plaintiff’s rights,

directed others to violate them, or, as the person in charge,

had knowledge of and acquiesced to” their subordinate’s

violations. A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det.

Ctr., 372 F.3d 572, 585 (3d Cir. 2004).

Of course, in order to be liable under either theory of

supervisory liability one must in fact be the supervisor of the

other actors. “As a general matter, a person who fails to act

to correct the conduct of someone over whom he or she has no

supervisory authority cannot fairly be said to have ‘acquiesced’

in the latter’s conduct.” Robinson v. City of Pittsburgh, 120

F.3d 1286, 1294 (3d Cir. 1997), overruled on other grounds by,

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

“General tort principles provide a useful analogy. . . . A

claim against a ‘master’ based on a tort committed by a

‘servant’ bears a resemblance to a § 1983 claim against a

government supervisor based on a constitutional tort committed

by a subordinate, but a person cannot be a ‘master’ unless he or

she has ‘the right to control the physical conduct’ of the

servant.” Id. (quoting Restatement (Second) of Agency § 2(1)

(1958)). Sgt. Henry is employed by the Cumberland County

Prosecutor’s Office. ECF No. 29 ¶ 46. The officers involved in

the assault were employed by the Cumberland County Department of

Corrections. The Department of Corrections and the prosecutor’s

office are two separate entities. Plaintiff has not alleged any

facts in the amended complaint that indicate Sgt. Henry had

control or the right to control the officers’ physical conduct

in the performance of their jobs.

Plaintiff asserts Sgt. Henry has supervisory authority over

the corrections officers because Professional Standard Units

supervise officers regardless of which agency employs them. ECF

No. 51 at 8. “Allegations of participation or actual knowledge

and acquiescence . . . must be made with appropriate

particularity.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d

Cir. 1988). There are no facts in the complaint that support

Plaintiff’s conclusory statement. Investigatory powers are

different than supervisory powers; Plaintiff does not allege

Sgt. Henry can hire new corrections officers, fire the

corrections officers, set their work schedule, or exert any

control over their day-to-day activities in any manner. See

Vance v. Ball State Univ., 570 U.S. 421, 424 (2013) (holding

that for Title VII purposes, a person is a supervisor “if he or

she is empowered by the employer to take tangible employment

actions”).

Plaintiff cites Shirden v. Cordero, 509 F. Supp. 2d 461

(D.N.J. 2007) for the proposition that “Professional Standard

Units in the state of New Jersey, like the Cumberland County

Prosecutor’s Office’s Professional Standards Unit for which

Defendant Henry operates in his individual capacity, has

supervisory authority over individual officers outside of the

prosecutor’s office.” ECF No. 51 at 8. In addition to Shirden

not being binding precedent on this Court, Plaintiff misstates

the holding of the case and New Jersey law.

Plaintiff accurately describes Shirden as concerning a

police officer who alleged he was reassigned in retaliation for

speaking to the press. The accuracy in Plaintiff’s description

of the case ends there. At no time did Judge Martini hold, or

even state in dicta, that Professional Standards Units had

supervisory authority over officers outside of their agencies as

a matter of New Jersey law. The Professional Standards Unit in

that matter investigated Shirden’s statements to the press that

the East Orange Police Department had given instructions to

officers to conduct legally suspect search and seizures of

African American men. 509 F. Supp. 2d at 464. The results were

referred to the city attorney, who recommended proceedings

against Shirden. Id. at 464-65. Shirden was subsequently

reassigned and later suspended by the Police Director. The

Professional Standards Unit’s role was limited to investigating

Shirden’s statements and there is no suggestion that it had any

supervisory authority over Shirden. Notably, Shirden did not

sue the Professional Standards Unit. Nothing in Shirden

supports Plaintiff’s claim that the ability to investigate an

officer makes the Professional Standards Unit a supervisor.

Plaintiff cannot assert supervisor liability against

someone who was not a supervisor. Plaintiff belatedly asserts

Sgt. Henry’s actions were tantamount to “evidence of a custom or

policy of a supervisory official to condone and permit such

Constitutional violations.” ECF No. 51 at 11. Policy or

practice liability is still supervisory liability. A.M. ex rel.

J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 585 (3d

Cir. 2004). As Sgt. Henry is not the officers’ supervisory,

Plaintiff cannot state a claim against Sgt. Henry based on a

theory of supervisory liability.

Because Plaintiff has not stated a claim of a violation of

his federal rights, Sgt. Henry is also entitled to qualified

immunity. See Reichle v. Howards, 566 U.S. 658, 664 (2012)

(“Qualified immunity shields government officials from civil

damages liability unless the official violated a statutory or

constitutional right that was clearly established at the time of

the challenged conduct.”).

IV. CONCLUSION

For the reasons set forth above, the motion to dismiss will

be granted and the claim against Sgt. Henry dismissed. Fed. R.

Civ. P. 12(b)(1), (6). An appropriate Order follows.

Dated: December 15, 2020 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.