The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAVID BROWN, No. 19-cv-21965 (NLH) (MJS)
Plaintiff,
OPINION
v.
JOHN DOE CORRECTIONS OFFICERS
1-5, et al.,
Defendants.
APPEARANCES:
David Brown
1353 S. 46th Street
Philadelphia, PA 19143
Plaintiff Pro se
Gregg L. Zeff, Esq.
Law Firm of Gregg L. Zeff
100 Century Parkway
Suite 305
Mt. Laurel, NJ 08054
Attorneys for Defendant Richard Smith
Todd J. Gelfand, Esq.
Barker, Gelfand, James & Sarvas
Linwood Greene, Suite 12
210 New Road
Linwood, NJ 08221
Attorneys for Defendants Officer Gary Lowell and Detective
Michael Minniti
HILLMAN, District Judge
Defendant Richard Smith, former warden of the Cumberland
County Jail, moves to dismiss Plaintiff David Brown’s amended
complaint. ECF No. 24. Defendants Officer Gary Lowell and
Detective Michael Minniti also move to dismiss the amended
complaint. ECF No. 20. Plaintiff opposes the motions. ECF
No. 25.
For the reasons stated herein, the Court will grant the
motions to dismiss and dismiss Defendants without prejudice.
I. BACKGROUND
Plaintiff filed a complaint under 42 U.S.C. § 1983 alleging
that he was assaulted by inmates while incarcerated in the
Cumberland County Jail:
In May of 2018 I was arrested in New Jersey for
aggravated assault 2nd degree and held without bail at
Cumberland County Jail for several months before the
charges were eventually dropped and I was released
before that I was being held illegally in a high custody
area of the jail with inmates charged with crimes ranging
form [sic] murder, robbery, rape, and even institutional
rape[.] [O]ne day I was on the tier I was assaulted by
several inmates while officer watched outside the gate
before breaking it up 2 of the inmates involved in the
assault were on trial for murder in the first degree and
should not have been housed with me for my misdemeanor
charges.
ECF No. 1 at 4. Plaintiff was hospitalized as a result. Id. at
7. He added that the assault was done at the officers’ command
and they “stood by and watched for entertainment.” Id.
The Court screened the opinion under 28 U.S.C. § 1915 and
permitted the complaint to proceed in part. ECF No. 8. The
Court dismissed Plaintiff’s false arrest and false imprisonment
claims without prejudice. ECF No. 7 at 4-5. It permitted the
complaint to proceed on Plaintiff’s claim that unidentified
Cumberland County Jail corrections officers failed to protect
Plaintiff when they directed other inmates to assault Plaintiff
and watched the assault for their entertainment. Id. at 5. A
failure to intervene claim was also permitted to proceed. Id.
at 6. The Court dismissed the claims against Warden Smith
because Plaintiff did not allege enough facts for the Court to
reasonably infer that Warden Smith had personal involvement in
Plaintiff’s assault. Id. at 7. The Court directed Plaintiff to
file either an amended complaint naming the John Doe corrections
officers or a request for a subpoena. ECF No. 8 at 1-2.
Plaintiff moved to amend his complaint on May 1, 2020. ECF
No. 9. The amended complaint alleged Officer Lowell responded
to a call on April 21, 2018 that two men were fighting in
Paulsboro. Id. at 1. “Officer Lowell spoke with one of the
males then contacts Detective Michael Minnitti [sic] who told
him to prepare charges for aggravated assault 2nd degree for the
arrest of . . . David Brown . . . .” Id. Plaintiff was
arrested on May 11, 2018. Id.
According to the amended complaint, Plaintiff appeared
before Judge Kevin Smith in Gloucester County for a probable
cause hearing within 7 days of his arrest. Id. Judge Smith
“determines from the evidence presented at the [probable] cause
hearing that there was no [probable] cause for the issuance of a
warrant for 2nd degree aggravated assault charges cause there was
no evidence presented to the officers as to the extent of the
injury and there was no use of a weapon.” Id. at 1-2.
Plaintiff also alleged that he was detained together with
“inmates charged with murder in the first degree rapes even
prison rapes with a misdemeanor level offense because of a
policy and practice of Warden Richard Smith of Cumberland County
Jail to house Gloucester County inmates at the Cumberland County
Jail . . . .” Id. at 2. He states “correctional officers used
Cumberland County inmates to assault Gloucester County inmates.”
Id.
Magistrate Judge Joel Schneider granted the motion to
amend. ECF No. 12. Defendants now move to dismiss the amended
complaint for failure to state claim.1
1 Officer Lowell and Detective Minniti alternatively request
summary judgment. ECF No. 20. “Rule 12 does not authorize a
motion for summary judgment or a motion to dismiss and for
summary judgment, as made in this case, to be filed in lieu of
an answer.” Visintine v. Zickefoose, No. 11–4678, 2012 WL
6691783, at *2 (D.N.J. Dec. 21, 2012). In an action where the
plaintiff is pro se like Plaintiff, a district court may not
convert a motion to dismiss into a summary judgment motion
II. STANDARD OF REVIEW
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).
without notice to the plaintiff consisting of at a minimum “a
paper copy of the conversion Order, as well as a copy of Rule 56
and a short summary explaining its import that highlights the
utility of a Rule 56(f) affidavit.” Renchenski v. Williams, 622
F.3d 315, 340 (3d Cir. 2010). “In this case, without having
filed an answer, a hybrid motion like the one filed here, does
not comply with the above described requirements of Rules 12 and
56 or satisfy the Renchenski court’s directive to provide clear
notice to pro se prisoners regarding what they must do to avoid
losing a summary judgment motion. It follows from Renchenski
and Rule 12 that a defendant should avoid filing a hybrid motion
to dismiss and/or for summary judgment of the sort filed here,
which creates unnecessary confusion for a pro se litigant.”
Visintine, 2012 WL 6691783, at *3. The Court declines to
convert the motion into a summary judgment motion and will only
consider the complaint in connection with Defendants’ Rule
12(b)(6) motion.
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. False Arrest and False Imprisonment
Plaintiff asserts Officer Lowell and Detective Minniti
falsely arrested him for aggravated assault. “To state a claim
for false arrest under the Fourth Amendment, a plaintiff must
establish: (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 to
arrest exists when the facts and circumstances within the
arresting officer’s knowledge are sufficient in themselves to
warrant a reasonable person to believe that an offense has been
or is being committed by the person to be arrested.” Orsatti v.
New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995).
“[W]here the police lack probable cause to make an arrest, the
arrestee has a claim under § 1983 for false imprisonment based
on a detention pursuant to that arrest.” O’Connor v. City of
Phila., 233 F. App’x 161, 164 (3d Cir. 2007) (internal quotation
marks and citation omitted).
Plaintiff alleges he was arrested for aggravated assault
after Officer Lowell spoke with the other man involved in the
fight. ECF No. 13 at 1. At the subsequent probable cause
hearing, Judge Smith concluded there was inefficient evidence of
injury to proceed with aggravated assault charges.2 Id.
“Evidence that may prove insufficient to establish guilt at
trial may still be sufficient to find the arrest occurred within
the bounds of the law.” Barna v. City of Perth Amboy, 42 F.3d
809, 819, (3d Cir. 1994). “As long as the officers had some
reasonable basis to believe [Plaintiff] had committed a crime,
the arrest is justified as being based on probable cause.
Probable cause need only exist as to any offense that could be
charged under the circumstances.” Id.
2 As is relevant here, second-degree aggravated assault occurs
when a person “[a]ttempts to cause serious bodily injury to
another, or causes injury purposely or knowingly or under
circumstances manifesting extreme indifference to the value of
human life recklessly causes such injury.” N.J.S.A. § 2C:12-
1(b)(1).
The amended complaint indicates Plaintiff was arrested
after Officer Lowell spoke with the alleged victim of the
assault; the later dismissal of the aggravated assault charge
does not mean the officers lacked probable cause to arrest
Plaintiff in the first place. Plaintiff does not allege that he
was not involved in the fight, only that he should not have been
charged with aggravated assault. On the facts alleged by
Plaintiff, Officer Lowell and Detective Minniti had a reasonable
basis to believe Plaintiff committed a crime based on the
interview with the victim. Therefore, the Court will grant
Officer Lowell’s and Detective Minniti’s motion to dismiss. The
claims will be dismissed without prejudice, meaning Plaintiff
may move to amend his complaint again.
B. Fourteenth Amendment Claims
The Court will also grant Defendant Richard Smith’s motion
to dismiss. ECF No. 24.
The Court dismissed Plaintiff’s Fourteenth Amendment claim
against Cumberland County Jail Warden Smith during its review
under § 1915 because Plaintiff did not provide facts indicating
Warden Smith’s personal involvement. A plaintiff cannot hold a
supervisor liable for the actions of his employees solely on a
respondeat superior theory under § 1983. Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009). “[L]iability under § 1983 may be imposed
on an official with final policymaking authority if that
official establishes an unconstitutional policy that, when
implemented, injures a plaintiff.” Chavarriaga v. N.J. Dep’t of
Corr., 806 F.3d 210, 223 (3d Cir. 2015) (citing Sample v.
Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)). “[T]o establish a
claim against a policymaker under § 1983 a plaintiff must allege
... that the official established or enforced policies and
practices directly causing the constitutional violation.” Id.
Plaintiff must plead facts that suggest “(1) the existence
of a policy or practice that created an unreasonable risk of [a
Fourteenth Amendment] violation; (2) the supervisor’s awareness
of the creation of the risk; (3) the supervisor’s indifference
to the risk; and (4) that the plaintiff’s injury resulted from
this policy or practice.” Estate of Chance ex rel. Humphreys v.
First Corr. Med., Inc., 329 F. App’x 340, 343 (3d Cir. 2009).
Plaintiff cursorily asserts there was “a policy and practice of
Warden Richard Smith of Cumberland County Jail to house
Gloucester County inmates at the Cumberland County Jail which
put me in a hostile and dangerous situation on several occasions
where correctional officers used Cumberland County inmates to
assault Gloucester County inmates.” ECF No. 13 at 2. This is
insufficient to state a claim of policy or practice liability.
Plaintiff has provided no facts suggesting that Warden Smith
knew that housing Cumberland County and Gloucester County
inmates together would cause corrections officers to pit inmates
against each other for their entertainment or that he was
indifferent to the danger caused by the housing policy. The
Court will grant the motion to dismiss, but the dismissal shall
be without prejudice. Plaintiff may move to amend his complaint
with more facts in compliance with Federal Rule of Civil
Procedure 15.
Plaintiff has requested five subpoenas to be issued so that
he may identify the John Doe defendants against whom the Court
permitted the Fourteenth Amendment claim to proceed. ECF No. 13
at 3. The Court will instruct the Clerk to send Plaintiff a
blank subpoena form. Plaintiff should return the completed form
to the Clerk’s Office.
IV. CONCLUSION
For the reasons stated above, Warden Smith’s motion to
dismiss will be granted without prejudice. Officer Lowell’s and
Detective Minniti’s motion to dismiss will also be granted
without prejudice. The Clerk shall send Plaintiff a blank
subpoena duces tecum form, AO 88B, to be filled out and returned
to the Clerk’s Office.
An appropriate order follows.
Dated: _June 7, 2021 ___s/ Noel L. Hillman ___
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.