CAPPS v. DIXON

[Docket Nos. 61, 62, 63, and 64]

[Docket Nos. 50, 51, and 52]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

AUDRA CAPPS, et al.,

Plaintiffs,

Civil No. 19-12002 (RMB/AMD)

v.

JOSEPH DIXON, et al., OPINION

Defendants.

Civil No. 20-1118 (RMB/AMD)

TANIKA JOYCE,

Plaintiff, OPINION

v.

JOSEPH DIXON, et al.,

Defendants.

APPEARANCES:

Louis Charles Shapiro, P.A.

By: Louis Charles Shapiro, Esq.

1063 East Landis Avenue

Vineland, NJ 08362

Attorney for Plaintiff

Reynolds & Horn, P.C.

By: Thomas B. Reynolds, Esq.

116 S. Raleigh Ave.

Apt. 9B

Atlantic City, NY 08401

Barker, Gelfand, James & Sarvas, P.C.

By: A. Michael Barker, Esq.

210 New Road

Suite 12

Linwood, NJ 08221

Attorneys for Defendants

BUMB, UNITED STATES DISTRICT JUDGE:

Before the Court are various motions to dismiss in two

separate, but similar cases: Capps et al., v. Dixon et al. (19-

12002) and Joyce v. Dixon et al. (20-1118). The facts and claims

are nearly identical between these two actions. In addition, all

Plaintiffs are represented by the same counsel, Plaintiffs

assert claims arising under 42 U.S.C. § 1983, as well as various

claims arising under New Jersey state law, Plaintiffs filed a

single opposition brief to the motions to dismiss, and each

Defendant is represented by the same counsel in the two cases.

Accordingly, the Court will address the motions filed in both

cases in this single Opinion.

In the Capps action, the Court now considers the following

motions: Police Chief Jody Farabella’s, Sergeant Lawrence

Mulford’s, Sergeant Ross Hoffman’s, Sergeant Harold Duffield’s,

Lieutenant Kevin McLaughlin’s, Sergeant Cindi Zadroga’s,

Sergeant John Redden’s, Lieutenant Carl Heger’s, and Sergeant

Dan Ayars’s (collectively “Supervisory Defendants”) Motion to

Dismiss [Docket No. 61], Defendant Bryan Orndorf’s (“Orndorf”)

Motion to Dismiss [Docket No. 62], the City of Millville’s

(“Millville”) Motion to Dismiss [Docket No. 63], and Joseph

Dixon’s (“Dixon”) Motion to Dismiss [Docket No. 64]. For the

reasons stated herein, the Court will grant, in part, and deny,

in part, each of these motions.

In the Joyce action, the Court now considers the following

motions: Millville’s Motion to Dismiss [Docket No. 50], the

Supervisory Defendants’ Motion to Dismiss [Docket No. 51], and

Dixon’s Motion to Dismiss [Docket No. 52]. For the reasons

stated herein, the Court will deny Dixon’s motion, grant, in

part, and deny, in part, the Supervisory Defendants’ motion, and

grant, in part, and deny, in part, Millville’s motion.

I. BACKGROUND

A. Audra Capps and Douglas Robert Gibson, Jr.

Plaintiffs Audra Capps (“Capps”) and Douglas Robert Gibson,

Jr. (“Gibson”) (collectively “Capps Plaintiffs”) assert various

claims for constitutional violations as well as state tort

claims. On February 25, 2018, Defendant Orndorf, an officer with

the Millville Police Department, stopped Capps while she was

driving on State Highway 49. [Docket No. 58, at ¶ 40]. Dixon, a

fellow police officer, then joined Orndorf at the scene. [Id. at

¶ 41]. During the traffic stop, Capps requested to call her

husband, Plaintiff Gibson, which Dixon denied. [Id. at ¶¶ 42-

43].

Dixon allegedly ordered Capps out of her car and conducted

a field sobriety test. [Id. at ¶¶ 44-45]. Capps failed this

test, and she was placed under arrest. [Id. at ¶¶ 49-50].

According to the Second Amended Complaint, Capps “began to back

up so as not to be handcuffed,” and Dixon placed her in a

headlock. [Id. at ¶¶ 54-55]. Capps alleges that while Dixon held

her in a headlock, he “lifted her off the ground, whirled her

around in the headlock, swung [her] over his hip while she was

still in a headlock, [] violently slammed this much smaller

female suspect to the hard pavement below,” and then fell on top

of her with all his weight. [Id. at ¶¶ 56-57]. While Capps was

on the ground, Orndorf purportedly placed his knee on Capps’s

back to help Dixon secure the handcuffs. [Id. at ¶ 58].

Dixon and Orndorf then placed Capps in the back of a patrol

car. [Id. at ¶59]. Capps alleges that, while in the patrol car,

she requested both medical treatment and for the officers to

call her husband, both of which the officers ignored. [Id. at ¶¶

61-62]. The officers took Plaintiff to the Millville Police

Department and charged her with multiple offenses. [Id. at ¶67].

Capps went to the hospital after been processed at the

Police Department. [Id. at ¶ 119]. She was diagnosed with a

chest wall contusion and several fractured ribs. [Id. at ¶¶ 120-

21.] According to the Second Amended Complaint, Capps’s injuries

did not heal properly, the various procedures she received did

not alleviate her pain, and she underwent multiple

reconstructive surgeries. [Id. at ¶¶ 122-24]. Approximately 14

months after her injuries, Capps underwent an additional surgery

which revealed that “cartilage had been ripped away from her

bones, and nerves were tangled around the cartilage, causing

severe pain.” [Id. at ¶ 129]. To date, Capps contends that she

still experiences pain from her injuries. [Id. at ¶ 135].

In her Complaint, Capps asserts a 42 U.S.C. § 1983 claim

and argues that Dixon’s takedown maneuver violated her rights

under the Fourth and Fourteenth Amendments to the U.S.

Constitution. Capps also alleges that Orndorf violated § 1983

both by failing to intervene in Dixon’s actions, and by placing

his knee on her back during the arrest. In addition, Capps

asserts a supervisory liability claim under § 1983 against the

Supervisory Defendants, all of whom are officers with the

Millville Police Department. Capps’s similarly alleges that the

City of Millville violated § 1983 for improperly training and

supervising its officers.

The Capps Plaintiffs assert several state law claims as

well. Capps alleges that Dixon’s and Orndrof’s actions during

the arrest violated her rights to be free from unreasonable

searches and seizures under the New Jersey Civil Rights Act,

N.J.S.A. 10:6-2(c), (e), and (f), and Article I, Paragraph 7 of

the New Jersey Constitution. Similarly, she alleges that Dixon’s

and Ordndorf’s actions constitute negligence, assault, battery,

and intentional infliction of emotional distress.

Against Millville and the Supervisory Defendants, Capps

asserts claims for negligent supervision, negligent retention,

vicarious liability, and negligence. Finally, Gibson asserts a

claim for loss of consortium against all Defendants. Defendants

have moved to dismiss all counts.

B. Tankika Joyce

Plaintiff Tanika Joyce (“Joyce”) filed her action alleging

deprivations of her rights under the Fourth and Fourteenth

Amendments of the United States Constitution. [Docket No. 47].

On March 24, 2018, Joyce was at a Shop Rite Store in Millville,

NJ. [Id. at ¶ 56]. Shop Rite employees called the police to

report a shoplifting by a minor, who was Joyce’s child. [Id.].

When police arrived at the store, Joyce allegedly refused to

provide her identification to the police officers. [Id. at ¶

58]. The officers informed Joyce that the minor would not be

charged with shoplifting, but that they could not release the

child to Joyce without proof of identification. [Id. at ¶ 59].

Defendant Dixon was one of the Millville police officers at

the Shop Rite. According to the Second Amended Complaint, Dixon

demanded Joyce’s identification, and threatened her with arrest

for not providing it. [Id. at ¶ 60]. Thereafter, Dixon began to

place Joyce under arrest. [Id. at ¶ 61]. Joyce contends that she

pulled away from Dixon and asked why she was being arrested.

[Id.]. At this point, Dixon allegedly “slammed Joyce to the

ground, causing her to land on her hip and hit her head on the

floor,” where he then sprayed her with pepper spray. [Id. at ¶

62]. Joyce’s daughter attempted to record this on her phone, but

another officer purportedly prevented her from doing so. [Id. at

¶ 63]. In addition, Joyce alleges that Dixon later admitted that

he took Joyce to the ground using a “jiu jitsu” move he learned

outside of his connection with the police department. [Id. at ¶

68].

While Joyce was on the ground, she told the officers that

she was unable to breathe and that she was injured. [Id. at ¶

64]. The officers then took Joyce to a patrol car and drove her

to the police station. [Id. at ¶ 65]. EMS met Joyce at the

police station and took her to the hospital. [Id. at ¶¶ 65-66].

Joyce asserts several claims in this action. Like Capps,

Joyce asserts a § 1983 claim for Dixon’s takedown maneuver, a §

1983 supervisory liability claim against the Supervisory

Defendants, a § 1983 municipal liability claim against

Millville, and a New Jersey Civil Rights Act claim against

Dixon. Unlike Capps, however, Joyce asserts no additional state

law claims. Defendants have moved to dismiss all counts.

II. STANDARD OF REVIEW

To withstand a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007)). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 662. “[A]n unadorned, the defendant-

unlawfully-harmed-me accusation” does not suffice to survive a

motion to dismiss. Id. at 678. “[A] plaintiff’s obligation to

provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires

more than labels and conclusions, and a formulaic recitation of

the elements of a cause of action will not do.” Twombly, 550

U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286

(1986)).

In reviewing a plaintiff’s allegations, the district court

“must accept as true all well-pled factual allegations as well

as all reasonable inferences that can be drawn from them, and

construe those allegations in the light most favorable to the

plaintiff.” Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir.

2012). The Court may consider only the allegations in the

complaint, and “matters of public record, orders, exhibits

attached to the complaint and items appearing in the record of

the case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d

1380, 1384 n.2 (3d Cir. 1994) (citing Chester Cnty. Intermediate

Unit v. Penn. Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)).

III. ANALYSIS

Plaintiffs asserts unique theories of liability against

Millville, the Supervisory Defendants, and Dixon respectively.

In addition, the Capps Plaintiffs assert an additional claim

against Orndorf. Plaintiffs predominantly assert claims arising

under 42 U.S.C. § 1983. § 1983 provides that:

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.

To establish a claim under § 1983, “a plaintiff must

demonstrate a violation of a right protected by the Constitution

or laws of the United States that was committed by a person

acting under the color of state law.” Nicini v. Morra, 212 F.3d

798, 806 (3d Cir. 2000). The Court begins its analysis of a

plaintiff’s § 1983 claims by identifying “the exact contours of

the underlying right said to have been violated,” and

determining “whether the plaintiff has alleged a deprivation of

a constitutional right at all.” Id. (quoting County of

Sacramento v. Lewis, 523 U.S. 833, 841 (1998)).

Here, Plaintiffs allege that Defendants violated their

rights under the Fourth Amendment. The Fourth Amendment

provides, in part, that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated.” U.S.

Const. amend. IV. As relevant here, an “excessive force claim

under § 1983 arising out of law enforcement conduct is based on

the Fourth Amendment’s protection from unreasonable seizures of

the person. . . . A cause of action exists under § 1983 when a

law enforcement officer uses force so excessive that it violates

the Fourth and Fourteenth Amendments to the United States

Constitution.” Groman v. Twp. of Manalapan, 47 F.3d 628, 633-34

(3d Cir. 1995).

As noted above, Plaintiffs also assert claims under state

law. The New Jersey Civil Rights Act (“NJCRA”), in part,

provides:

Any person who has been deprived of any

substantive due process or equal protection

rights, privileges or immunities secured by

the Constitution or laws of the United States,

or any substantive rights, privileges or

immunities secured by the Constitution or laws

of this State, or whose exercise or enjoyment

of those substantive rights, privileges or

immunities has been interfered with or

attempted to be interfered with, by threats,

intimidation or coercion by a person acting

under color of law, may bring a civil action

for damages and for injunctive or other

appropriate relief.

***

Any person who deprives, interferes or

attempts to interfere by threats, intimidation

or coercion with the exercise or enjoyment by

any other person of any substantive due

process or equal protection rights, privileges

or immunities secured by the Constitution or

laws of the United States, or any substantive

rights, privileges or immunities secured by

the Constitution or laws of this State is

liable for a civil penalty for each violation.

N.J.S.A. § 10:6-2 (c), (e).

The NJCRA was “modeled after 42 U.S.C. § 1983, and creates

a private cause of action for violations of civil rights secured

under the New Jersey Constitution[ ].” Trafton v. City of

Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011). Courts

interpret the NJCRA “analogously to § 1983.” Id. at 444. Here,

Plaintiffs allege that Defendants violated their rights to “be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” N.J. Const. art. I, para.

7.

A. Capps’s Claims

a. Dixon

As noted above, Capps argues that Dixon’s takedown maneuver

constituted excessive use of force, in violation of § 1983.

Dixon responds that Capps has failed to identify a clearly

established right that he purportedly violated. More

specifically, he contends that Capps can identify no law or

caselaw showing that she had “a right to be free from a law

enforcement officer’s takedown maneuver to apply handcuffs and

effectuate an arrest[,]” and that no police officer “would

clearly believe that his conduct in using a takedown maneuver,

lasting 2 seconds, to arrest a resisting suspect, was unlawful

or a violation of clearly established statutory or

constitutional rights.” [Docket No. 64-2, at 7-8].

The Court must reject Dixon’s argument. At this stage in

the litigation, Capps has stated a valid claim and dismissal is

not warranted. Neither party disputes that Dixon used some sort

of takedown maneuver while arresting Capps. Instead, the parties

dispute whether the particulars of the exact maneuver that Dixon

used were excessive. In relevant part, Dixon focuses his

argument on narrow grounds: that the takedown maneuver he

applies is permissible. But that puts the “cart before the

horse.” The Court is not a factfinder, and it cannot evaluate

whether Capps had a clearly established right to be free from

Dixon’s takedown until the parties address what actually

happened. Undeniably, a police officer’s actions may constitute

either a permissible use of force or an excessive use of force

depending on precisely what occurred. Here, the Court is

satisfied that Plaintiff has sufficiently alleged that Dixon’s

actions fall into this latter category. Accordingly, Dixon’s

Motion to Dismiss Plaintiff’s § 1983 claim is denied1.

b. Orndorf

Capps asserts two § 1983 claims against Orndorf: one for

Orndorf’s failure to intervene in Dixon’s use of force and one

for Ornforf’s own use of force.

Although a police officer has a “duty to take reasonable

steps to protect a victim from another officer’s use of

excessive force,” that officer is “only liable if there is a

realistic and reasonable opportunity to intervene.” Smith v.

Mensinger, 293 F.3d 641, 651 (3d Cir. 2002). But Capps has not

alleged that Orndorf had a reasonable opportunity to intervene.

Instead, Capps argues that “[s]omeone who worked with Dixon for

that length of time, who also knew Dixon for 11-12 years before

becoming a Millville Police Officer . . . would know exactly

what was coming – that Dixon was going to slam Capps to the

ground.” [Docket No. 67-6, at 80]. But Capps’s argument fails to

appreciate that an officer’s duty to intervene requires a

realistic and reasonable opportunity to do so; it is not a duty

to predict the future. Capps’s allegations that Orndorf “would

know exactly what was coming” does just that. Therefore,

1 The Court will not consider Dixon’s subsequent guilty pleas

at this time.

Orndorf’s motion to dismiss is granted as to the failure to

intervene claims.

Capps also claims that Orndorf directly violated her Fourth

Amendment rights. As noted above, the Second Amended Complaint

alleges that Orndorf used his knee to restrain and injure Capps

during the arrest. Orndorf argues that Capps’s allegations are

unsupported by video of the arrest, and the Court should rely on

that video recording in reviewing the Motion to Dismiss.

The Court finds that it would be inappropriate to make

factual judgments based on the video recording at this time.

Orndorf is correct that Capps makes several references to the

video in her pleading. But these references do not permit the

Court to review and make factual determinations from the

recording. Only when “claims in the complaint are ‘based’ on an

extrinsic document,” may the Court review that extrinsic

document in deciding a motion to dismiss. Schmidt v. Skolas, 770

F.3d 241, 249 (3d Cir. 2014) (emphasis added). When, as here, a

party merely cites an extrinsic document, the Court cannot

review that document at such an early stage. Id. In other words,

“[s]imply because a video that captured the events complained of

in the complaint exists does not transform that video into a

‘document’ upon which the complaint is based.” Slippi-Mensah v.

Mills, No. 1:15-CV-07750-NLH-JS, 2016 WL 4820617, at *3 (D.N.J.

Sept. 14, 2016) (emphasis added).

Moreover, Orndorf even acknowledges that “the video is

obstructed” and “the precise location of Orndorf’s knee cannot

be ascertained.” [Docket No. 62-1, at 9]. Although the Court has

held that it will not review the video at this time, Orndorf’s

request is additionally inappropriate in that he asks the Court

to make factual inferences from an objectively unclear

recording. Accordingly, Orndorf’s motion, as to Capps’s direct §

1983 claim, is denied.

c. Supervisory Defendants

As the parties have correctly identified, there are some

uncertainties about the applicability of supervisory liability

in any § 1983 action, and particularly in cases concerning the

Fourth Amendment. Nevertheless, the Third Circuit has recognized

“two general ways in which a supervisor-defendant may be liable

for unconstitutional acts undertaken by subordinates[:]” (1)

liability based on an establishment of policies, practices or

customs that directly caused the constitutional violation; and

(2) personal liability based on the supervisor participating in

the violation of Plaintiff’s rights, directing others to violate

Plaintiff’s rights, or having knowledge of and acquiescing to a

subordinate’s conduct. Barkes v. First Correctional Medical,

Inc., 766 F.3d 307, 316(2014); see also Doe v. New Jersey Dep’t

of Corr., No. CIV.A. 14-5284 FLW, 2015 WL 3448233, at *9 (D.N.J.

May 29, 2015).

Having reviewed the Second Amended Complaint, it appears

that Capps has simply named every Millville police officer who

potentially had some supervisory responsibility over Dixon,

regardless of when that role existed or how disconnected that

supervision was from these events. The Third Circuit has

repeatedly held that a plaintiff cannot establish § 1983

liability on a respondeat superior theory. See, e.g.,

Chavarriaga v. New Jersey Dep’t of Corr., 806 F.3d 210, 222 (3d

Cir. 2015). Yet Capps’s allegations attempt to bypass this

restriction and hold some of the Supervisory Defendants liable

solely for supervising Dixon. For example, Capps’s live

complaint makes only two allegations with respect to Defendant

Ross Hoffman: (1) that Hoffman was Dixon’s supervisor in 2013,

when Dixon allegedly drove his police vehicle in a reckless

manner [Docket No. 58-1, at ¶ 173], and (2) that Hoffman was

Dixon’s supervisor when Dixon used force on arrestees in 2013

and 2014. [Id. at ¶ 193]. But neither of these allegations are

sufficient to establish § 1983 violations against Hoffman for

Dixon’s use of force against Capps in 2018-- they allege neither

actions that directly caused Dixon’s purported constitutional

violations, nor do they allege participation in or acquiescence

to Dixon’s actions to Capps.

These same deficiencies are present for nearly every other

Supervisory Defendant. Capps repeatedly fails to establish any

connection between most of the Supervisory Defendants and

Dixon’s purported constitutional violation in this action.

Because Capps has failed to make this connection, dismissal of

Capps’s § 1983 claims against most of the Supervisory Defendants

is warranted.

The exception, however, is Capps’s supervisory liability

claim against Defendant Chief Farabella. Unlike the other

Supervisory Defendants, Farabella-- as the Chief of the

Millville Police Department-- is undeniably a “policymaker.” If,

as Capps alleges, the Millville Police Department maintained a

policy or custom of permitting officers to use excessive force

without consequence, Farabella could be liable under § 1983. In

addition, Capps has alleged that Farabella knew about Dixon’s

history of use of force complaints for years before Capps’s

arrest, and that Farabella was responsible for the internal

review of complaints that Dixon received. [See id. at ¶¶ 230-

31]. Capps also alleges specific incidents where Farabella spoke

with Dixon about his use of force practices, but ultimately

failed to take sufficient corrective measures. At this stage in

the litigation, Capps has met her burden and dismissal is not

warranted.

d. The City of Millville

Capps asserts Monell liability claims against the City of

Millville. Monell liability, as established in Monell v. Dep’t

of Soc. Servs., 436 US 658 (1978), states that a municipality

may be liable under § 1983 when a public employee deprives

someone of their constitutional rights, and does so pursuant a

municipal policy or custom. See Natale v. Camden Cty. Corr.

Facility, 318 F.3d 575, 583–84 (3d Cir. 2003). But Monell does

not impose liability on a municipality simply for employing

someone who violates another’s constitutional rights; there is

no respondeat superior liability in § 1983. Robinson v. Fair

Acres Geriatric Ctr., 722 F. App’x 194, 198 (3d Cir. 2018)

(citing Monell, 436 U.S. at 691). Instead, “liability is imposed

‘when the policy or custom itself violates the Constitution or

when the policy or custom, while not unconstitutional itself, is

the moving force behind the constitutional tort of one of its

employees.” Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d

Cir. 2014) (quoting Colburn v. Upper Darby Twp., 946 F.2d 1017,

1027 (3d Cir.1991)).

A plaintiff has not established the existence of a

municipality’s policy or custom by showing that a municipality

took a particular action. Natale, 318 F.3d at 584. Instead, a

policy exists when “a decisionmaker possess[ing] final authority

to establish municipal policy with respect to the action issues

a final proclamation, policy or edict.” Kneipp v. Tedder, 95

F.3d 1199, 1212 (3d Cir.1996). In contrast, a custom is an act

“that has not been formally approved by an appropriate

decisionmaker,” but that is “so widespread as to have the force

of law.” Natale, 318 F.3d at 584 (quoting Bd. of County Comm'rs

of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 404 (1997)).

When, as here, a plaintiff’s identified policy or custom

“concerns a failure to train or supervise municipal employees,

liability under section 1983 requires a showing that the failure

amounts to ‘deliberate indifference’ to the rights of persons

with whom those employees will come into contact.” Carter v.

City of Phila., 181 F.3d 339, 357 (3d Cir.1999). Deliberate

indifference “is a stringent standard of fault, requiring proof

that a municipal actor disregarded a known or obvious

consequence of his action.” Thomas, 749 F.3d at 222.

“Ordinarily, ‘[a] pattern of similar constitutional violations

by untrained employees’ is necessary ‘to demonstrate deliberate

indifference for purposes of failure to train.” Id. (quoting

Connick v. Thompson, 563 U.S. 51, 61 (2011)). A “pattern of

violations” will put a municipality on notice that a new program

is necessary, but without notice that a course of training is

deficient, there can be no deliberate indifference. Id. Finally,

“the identified deficiency in a city’s training program must be

closely related to the ultimate injury;’ or in other words, ‘the

deficiency in training [must have] actually caused’ the

constitutional violation.” Id. (quoting City of Canton, Ohio v.

Harris, 489 U.S. 378, 388 (1989).

Millville argues that Capps’s Monell claims should be

dismissed because Capps failed to allege sufficient facts “to

establish a plausible claim that the City of Millville was

deliberately indifferent to a custom, pattern, or practice of

excessive use of force by Dixon.” [Docket No. 50-1, at 3]. But

this is incorrect. Defendants concede that Chief Farabella was a

decisionmaker for Monell liability purposes. [Docket No. 61-1,

at 5]. In addition, Capps has sufficiently alleged that

Farabella either knew or should have known that Dixon received

use of force complaints at a rate far higher than other officers

in the department, and that whatever measures he took to correct

this issue was insufficient. Thus, dismissal of Capps’s Monell

claims against Millville is unwarranted at this time.

e. State Law Claims

Capps has asserted an NJCRA claim against both Dixon and

Orndorf for their actions during her arrest. As noted above, the

NJCRA is interpreted “analogously to § 1983.” Trafton, 799 F. at

444. As such, the Court’s analysis with respect to Capps’s NJCRA

claims is identical to the above, and those claims will not be

dismissed.

In addition, Capps and Gibson assert eight state law tort

claims against Defendants. Under the New Jersey Tort Claims Act,

“[a] public employee is not liable if he acts in good faith in

the execution or enforcement of any law.” N.J.S.A. § 59:3-3. But

a public employee can be liable if his or her actions

“constituted a crime, actual fraud, actual malice or willful

misconduct.” N.J.S.A. § 59:3-14. Under these standards, the

Court will now consider each tort claim in turn.

First, Capps asserts intentional infliction of emotional

distress claims against Dixon and Orndorf. To establish a claim

for intentional infliction of emotional distress, a plaintiff

must show that: (1) defendant acted intentionally; (2)

defendant’s conduct was “so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community;” (3) defendant's actions

proximately caused her emotional distress; and (4) the emotional

distress was so severe that no reasonable person could be

expected to endure it. Buckley v. Trenton Sav. Fund Soc’y, 111

N.J. 355, 366 (1988).

Having reviewed the conclusory allegations in the Second

Amended Complaint, the Court finds that Capps has failed to

state a claim for intentional infliction of emotional distress

at this juncture. Beyond conclusions, Capps has not identified

specific conduct, traceable to each of Dixon and Orndorf, that

was so outrageous and extreme as to constitute infliction of

emotional distress. Therefore, dismissal is warranted.

Second, Capps asserts assault claims against Dixon and

Orndorf. In New Jersey, “a person is subject to liability for

the common law tort of assault if: (a) he acts intending to

cause a harmful or offensive contact with the person of the

other, or an imminent apprehension of such contact, and (b) the

other is thereby put in such immediate apprehension.” Panarello

v. Vineland, 160 F. Supp. 3d 734, 767 (D.N.J. Feb. 8, 2016)

(quoting Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 591

(2009)). Although a police officer may not be liable for assault

when an arrestee physically resists the officer, see State v.

Williams, 29 N.J. 27, 39 (1959), an officer who uses “excessive

force in effectuating an arrest, . . . may be liable for assault

and battery.” Hill v. Algor, 85 F. Supp. 2d 391, 411 (D.N.J.

2000).” Having found that Capps has stated a claim for excessive

force, the Court will deny Defendant’s motion as to the assault

claims against Dixon and Orndorf.

Third, Capps asserts battery claims against Dixon and

Orndorf. “The tort of battery rests upon a nonconsensual

touching.” Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 591

(2009). Like assault, a police officer is generally not liable

for battery when an offender resist arrests. But, also like

assault, an officer who uses excessive force can be liable for

battery. Hill, 85 F. Supp. 2d at 411. The Court has already

found that Capps’s assault claims against Dixon and Orndorf will

not be dismissed and, for identical reasons, Capps’s battery

claims will also not be dismissed.

Finally, Plaintiffs’ remaining tort claims-- negligent

supervision, negligent retention, negligence, vicarious

liability, and loss of consortium-- suffer from similar defects.

As an initial matter, the Court remains unconvinced that the New

Jersey Torts Claims Act permits liability against municipalities

for negligent supervision, negligent retention, and vicarious

liability. In addition, the New Jersey Tort Claims Act

establishes that a municipality is generally not liable for an

employee’s actions, when those actions constituted “a crime,

actual fraud, actual malice, or willful misconduct.” N.J.S.A. §

59:2-10. Yet Plaintiffs have alleged that Dixon’s and Orndorf’s

actions constituted crimes, malice, and willful misconduct.

Given these considerations, the Court will dismiss all of

Capps’s and Gibson’s tort claims against Millville.

In addition, and as noted above, the New Jersey Tort Claims

Act states that “[a] public employee is not liable if he acts in

good faith in the execution or enforcement of any law.” Id. at §

59:3-3. For a public employee to assert this immunity, he must

show that “the challenged conduct was undertaken with objective

or subjective good faith.” Dunlea v. Twp. of Belleville, 349

N.J. Super. 506, 509 (App. Div. 2002). Critically, “mere

negligence on the part of a public employee is generally not

sufficient to defeat the good-faith immunity provided by

N.J.S.A. 59:3–3.” Id. Instead, a plaintiff must allege at least

recklessness. Id. at 512.

Capps and Gibson do not sufficiently allege conduct from

the Supervisory Defendants that amounts to at least

recklessness, nor do they assert arguments fairly tracing each

of the Supervisory Defendants’ conduct to their respective

negligence and loss of consortium claims. In addition,

Plaintiffs’ conclusory and bald assertion that the police

officers in this case “would not take any action that would risk

running up against the Blue Wall of Silence” [Docket No. 67-6,

at 81] is both insufficient and inappropriate.

Nevertheless, the Court finds that dismissal of Capps’s

negligence claims against only Dixon and Orndorf is unwarranted.

Unlike Capps’s allegations against the other Defendants, her

allegations against Dixon and Orndorf are sufficiently detailed

to state a plausible claim at this stage in the litigation.

B. Joyce’s Claims

The Court’s above analysis applies equally to the Joyce

matter, except that Joyce asserted no claims against Orndorf nor

did she assert any state tort claims. Joyce’s claims against the

Supervisory Defendants and the City of Millville are identical

to Capps’s claims. Her claims against Dixon do involve slightly

different circumstances, but the operative facts and allegations

are identical: Dixon allegedly used a dangerous and excessive

takedown maneuver to restrain Joyce, and Joyce suffered severe

injuries as a result. Thus, the Court will resolve Defendants’

motions consistent with the above analysis for the Capps case.

IV. CONCLUSION

For the foregoing reasons, Dixon’s Motion to Dismiss in 19-

12002 [Docket No. 64] is GRANTED, IN PART, and DENIED, IN PART;

Dixon’s Motion to Dismiss in 20-1118 [Docket No. 52] is DENIED;

Orndorf’s Motion to Dismiss [19-12002, Docket No. 62] is

GRANTED, IN PART, and DENIED, IN PART; the City of Millville’s

Motion to Dismiss in 19-12002 [Docket No. 63] is GRANTED, IN

PART, and DENIED, IN PART; the City of Millville’s Motion to

Dismiss in 20-1118 [Docket No. 50] is DENIED; and the

Supervisory Defendants’ Motions to Dismiss [19-12002, Docket No.

61; 20-1118, Docket No. 51] are GRANTED, IN PART, AND DENIED, IN

PART.

In addition, both the Capps Plaintiffs and Joyce may file

Third Amended Complaints within 30 days from the date of this

Opinion. But the Court will caution Plaintiffs against filing

additional complaints as a matter of course. Given the number of

complaints already filed in these cases, and the length of those

complaints, the Court does not expect that the now-dismissed

claims can be corrected by addressing minor oversights.

Plaintiffs should be very critical of their potential claims

when considering additional pleadings. In addition, the Court

further advises Plaintiffs that any amended complaints should

avoid the “kitchen sink” pleading approach. See Mary Ann

Pensiero, Inc. v. Lingle, 847 F.2d 90, 97 (3d Cir. 1988) (“[W]e

acknowledge that the practice of ‘throwing in the kitchen sink’

at times may be so abusive as to merit Rule 11 condemnation.”).

An appropriate Order accompanies this Opinion.

Dated: May 21, 2021 s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge