COTTMAN v. FARABELLA

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BARRY COTTMAN,

1:19-cv-14122-NLH-AMD

Plaintiff,

OPINION

v.

JODY FARABELLA,

MILLVILLE CHIEF OF POLICE,

P.O. JOSEPH DIXON

172, P.O. ROBERT RUNKLE

160, CITY OF MILLVILLE, NEW

JERSEY,

Defendants.

APPEARANCES:

JUSTIN TERENCE LOUGHRY

LOUGHRY & LINDSAY, LLC

330 MARKET STREET

CAMDEN, NJ 08102

On behalf of Plaintiff

A. MICHAEL BARKER

BARKER, GELFAND & JAMES

LINWOOD GREENE

210 NEW ROAD

SUITE 12

LINWOOD, NJ 08221

On behalf of Defendants Jody Farabella and City of

Millville

THOMAS B. REYNOLDS

REYNOLDS & HORN, P.C.

A PROFESSIONAL CORPORATION

750 ROUTE 73 SOUTH

SUITE 202 A

MARLTON, NJ 08053

On behalf of Defendants Joseph Dixon and Robert Runkle

HILLMAN, District Judge

This matter concerns Plaintiff’s claims of excessive force

and unlawful seizure against two police officers and municipal

liability and supervisory liability against the City of

Millville and its police chief, Jody Farabella. Plaintiff

claims Farabella and the municipality are liable for his

injuries because of their failure to properly train the officers

and for fostering customs and policies which condoned the use of

excessive force. Previously, the Court dismissed Plaintiff’s

claims against Millville and Farabella.1 The Court found that

Plaintiff’s claims against Millville and Farabella did not

provide sufficient facts to make his claims plausible as

required under applicable pleading standards. The Court also

found, however, that in consideration of the substance of

Plaintiff’s brief and Third Circuit precedent, Plaintiff should

be granted leave to file an amended complaint.

Plaintiff filed an amended complaint, and Millville and

Farabella have again moved to dismiss Plaintiff’s claims against

them. For the reasons expressed below, the Court will deny

Defendants’ motions.

1 Plaintiff had not opposed the dismissal of his claims against

Farabella in his official capacity because that claim was

duplicative of his claims against Millville, and Plaintiff had

not opposed the dismissal of his request for punitive damages

for his claims against Millville. Those claims were dismissed

with prejudice.

BACKGROUND

In his amended complaint, Plaintiff, Barry Cottman, who is

African-American, claims that on June 27, 2017, he was crossing

a street in Millville, New Jersey “not engaged in any unlawful

activity,” when Defendant Millville police officers Joseph Dixon

and Robert Runkle “confronted plaintiff with one or more

groundless accusations of supposedly wrongful or inappropriate

conduct.” (Docket No. 40 at 4.) Plaintiff claims that the

officers “argued with plaintiff but plaintiff engaged in no

conduct that physically threatened or injured the defendants.”

(Id.) Plaintiff claims, “Without reasonable provocation or

justification, Defendant Officers Dixon and Runkle physically

assaulted plaintiff, first seizing his person and then taking

him forcefully to the ground. Dixon, who was approximately six

foot three inches tall and weighed 250 pounds, restrained

plaintiff by straddling him and pinning him to the sidewalk.”

(Id.)

Plaintiff continues, “Defend[]ant Dixon was significantly

taller and heavier tha[]n Plaintiff Cottman. Defendant Dixon

had effective control over Plaintiff but claimed or acted as if

he was not satisfied with Cottman’s degree of compliance, and so

struck Plaintiff [with] a series of closed fist violent punches

to the head and face, causing unnecessary and great pain,

injury, bleeding, and intense fear and humiliation. Officer

Runkle stood by and observed but did nothing to interfere with

Dixon’s course of violent conduct.” (Id. at 4-5.)

Plaintiff claims that Dixon and Runkle each wrote a report

about the incident. As for Dixon, Plaintiff alleges that Dixon

filed a “materially false” criminal complaint against Plaintiff

stating that Plaintiff had resisted arrest by striking the

officers, which is false. (Id. at 6.) For Runkle, Plaintiff

claims that in a report authored by Runkle regarding the

incident, Runkle described the incident in detail but

conspicuously omitted any mention of the several closed fist

strikes by Dixon to the face and head of Plaintiff. (Id.)

A trial in the municipal court was held regarding Dixon’s

charges against Plaintiff. The prosecution did not call Dixon

to testify as a witness, but it did call Runkle. According to

Plaintiff, on cross-examination Runkle “admitted that he was

present for the entire incident and just a couple of feet away

from Cottman and Dixon, and that at no time did Plaintiff

Cottman kick, punch, strike or even push the officers.” (Id.)

Plaintiff’s amended complaint relates that the municipal court

judge acquitted Plaintiff of all criminal charges, including the

charge that he had resisted arrest by striking the officers.

The municipal court judge also found that Dixon’s complaint and

the specific allegations against Plaintiff were false. (Id.)

Plaintiff’s amended complaint additionally relates that the

incident “elicited on the spot complaints” from Plaintiff’s

mother, who “was also arrested for complaining and was charged

with a criminal offense.” (Id. at 7.) The municipal court

dismissed that charge with prejudice, concluding that there was

no criminal offense on her part.2 Plaintiff claims that his

mother complained to internal affairs and there was “a purported

investigation,” which lead to “an exoneration of the officers,”

which was a “sham, and reflects at best a deliberate and willful

blindness to the police misconduct that has occurred.” (Id.)

Plaintiff has asserted claims pursuant to 42 U.S.C. § 1983

and its state law counterpart, the New Jersey Civil Rights Act

(“NJCRA”), N.J.S.A. 10:6-2, et seq.3 Plaintiff claims that the

defendant officers used excessive force and unlawfully

restrained him in violation of the Fourth and Fourteenth

Amendments (Counts One, Two and Five). Plaintiff also claims

that the Defendant Police Chief Farabella and the City of

2 Plaintiff’s mother is not a plaintiff in this matter.

3 The NJCRA has repeatedly been construed as analogous to §

1983, and NJCRA claims are therefore analyzed under the legal

framework applicable to § 1983 claims absent clear state law

indicating a particular claim is to be analyzed distinctly

from § 1983. Valles v. Cumberland County, 2019 WL 4051858, at

*6 (D.N.J. 2019) (citing Trafton v. City of Woodbury, 799 F.

Supp. 2d 417, 443-44 (D.N.J. 2011)). Just like § 1983, the

NJCRA is a means of vindicating substantive rights and is not a

source of rights itself. Gormley v. Wood-El, 93 A.3d 344, 358

(N.J. 2014).

Millville are liable for his injuries because of their failure

to properly train the officers and for their fostering of

customs and policies which condone the use of excessive force

(Counts Three and Four).

Plaintiff’s claims against Farabella and Millville are

recounted in a separate section of his amended complaint.

(Docket No. 40 at 9-39.) Plaintiff explains that in a sixteen-

month investigation from 2017 through November 2018, the Newark

Star Ledger and NJ Advance Media for NJ.com (collectively

referred to as “NJ.com”) compiled data based on New Jersey

police use of force reports received through public records

requests and published a series of articles referred to as The

Force Report. The Force Report revealed that in Dixon’s first

three-plus years as a police officer for the City of Millville,

he reported using force more frequently than any other police

officer in the State of New Jersey, and over the studied five-

year period of 2012 through 2016, Dixon’s 58 instances in which

he reported using force ranked him third statewide behind two

other officers from different police departments who had 62 and

59 such instances of reported use of force.

The Force Report further found that Dixon’s 58 use of

force incidents in his first four years after completing police

academy training yielded an average of more than one incident

per month, while more than 17,000 New Jersey officers who

reported using force over a similar period averaged less than

one incident per year.

Plaintiff’s amended complaint relates that The Force Report

revealed that Millville Police Officer Jeffrey Proffit, who

reported using force 36 times during the same period - second to

Dixon’s 58 - was indicted in February 2017 for seven counts of

assault or abuse of force against various citizens of Millville.

That indictment was four months before Dixon’s use of excessive

force against Plaintiff. Proffit ultimately entered a guilty

plea to third degree aggravated assault in January 2020.

Plaintiff claims that until Proffit was indicted, Farabella

and the Millville Police Department had never found any

complaint against Proffit to be “substantiated.” Moreover,

Plaintiff claims that at no time prior to Plaintiff’s encounter

with Dixon and Runkle in June 2017 had the Millville Police

Department’s internal affairs section sustained any complaint

for excessive force against any officer. Plaintiff relates that

NJ.com reported that of the 39 excessive force complaints filed

against police officers in the City of Millville from 2012

through 2016, not one complaint was substantiated.

Plaintiff claims that the Cumberland County grand jury’s

indictment of Proffit in February 2017 on multiple counts of

assault against citizens or arrestees placed Chief Farabella,

the police department, and the municipality on clear notice that

the internal affairs system was ineffectual, and that its police

officers were employing excessive force against the citizenry.

Plaintiff claims that despite such notice, Farabella and

Millville did nothing - they did not change their internal

affairs procedures or their training, and they did nothing to

prevent continuing administrations of excessive force by members

of the police department, which resulted Plaintiff’s injuries in

June 2017.

More specifically to Dixon, Plaintiff claims that the use

of force reports filed by Dixon were reviewed by the department,

and some by Farabella, which also put them on notice regarding

his significant use of force when compared to other officers,

including Proffit. Additionally, in response to The Force

Report, which was published after Plaintiff’s encounter with

Dixon, Plaintiff claims that Farabella told NJ.com that Dixon

was “an example of a fine officer” who has never been the

subject of a substantiated excessive force complaint, and

Farabella nominated Dixon for a Public Safety Officer Medal of

Valor. Plaintiff further claims, however, that Farabella

refused to reveal the number of excessive force complaints that

had been filed against Dixon.

Plaintiff also claims that The Force Report revealed

irregularities between Dixon’s use of force reports and what

actually occurred.4 For example, for an incident involving Audra

Capps, Dixon filled out a use of force report that stated he

only restrained her and Capps was not injured. A video of the

incident showed, however, that while Dixon was trying to

handcuff 100 lbs. Capps, she attempted to take a step back from

Dixon, and Dixon placed Capps in a headlock, lifted her off the

ground, swung her over his hip, and slammed her face-first into

the ground, breaking several of her ribs.5

Similarly, Plaintiff claims a citizen’s cell phone video of

his encounter with Dixon was put on the internet a few days

4 Plaintiff’s complaint relates that State investigators for the

Office of Public Integrity and Accountability investigated and

studied Millville’s police department as of 2019, and OPIA’s

investigation revealed that Dixon prepared 80 use of force

reports during his five years as a Millville police officer.

5 The Capps incident occurred on February 25, 2018. Capps filed

suit against Dixon, Farabella, and the City of Millville on May

1, 2019. See CAPPS v. DIXON, 1:19-cv-12002-RMB-AMD. Another

action with similar claims, but not described in Plaintiff’s

complaint here, is also pending in this District. See JOYCE v.

DIXON, 1:20-cv-01118-RMB-AMD (filed on January 31, 2020,

concerning a March 24, 2018 incident of alleged excessive force

by Dixon). The Joyce complaint states that on September 5,

2019, the OPIA sent a letter to Dixon, notifying him that he was

a target of a State Grand Jury investigation into allegations of

official misconduct, assault, and falsifying or tampering with

public records relating to his conduct in the course of his

employment Millville Police Officer. (1:20-cv-01118-RMB-AMD,

Docket No. 1 at 5.) The Joyce complaint further states that on

November 9, 2019, Dixon pleaded guilty to two counts of third-

degree aggravated assault for the Capps and Joyce incidents.

(Id.) As part of his guilty pleas, Dixon was required to agree

to a lifetime ban on public employment, and he will never be

able to serve as a police officer in the State of New Jersey in

the future. (Id. at 6.)

after, and it shows that Plaintiff did nothing to resist arrest,

which is what Dixon falsely stated in his report. Plaintiff

claims that the video actually shows that Dixon straddled

Plaintiff and inflicted four vigorous punches to the side of

Plaintiff’s face and head while he was pinned to the sidewalk by

Dixon’s weight.

Plaintiff’s complaint further details various actions by

Dixon during his time as a Millville police officer. (Docket

No. 40 at 18-24.) Specifically related to the timeframe of

Plaintiff’s encounter with Dixon, Millville police department

Sgt. Redden prepared the evaluation of Dixon from January l,

2017 through November l, 2017, where he noted the number of

traffic summonses, arrests and reports issued by Dixon, but he

did not include any numbers about excessive force incidents, and

Redden’s evaluation of Dixon was positive.

Plaintiff’s complaint further details the OPIA

investigation, which revealed that prior to a 2019 policy

change, the Millville police department’s review of use of force

reports was perfunctory, it never involved any audio or video

review, it constituted a one-page template that was filled in by

the officer involved in a particular incident, and a supervisor

would have no way of actually knowing that a UOF form was

accurate and complete just by looking at the document prepared

by the submitting officer. Additionally, the OPIA revealed that

Dixon had a reputation in the department for punching people.

Plaintiff’s complaint continues with allegations of how

Farabella “had Dixon’s back.” Plaintiff’s complaint alleges

that even though Farabella knew of Dixon’s tendencies to use

excessive force, and allegedly spoke to Dixon on some occasions,

Farabella did nothing meaningful to curb Dixon’s conduct or the

excessive use of force by Proffit and the Millville police

department as a whole. Plaintiff claims that Farabella took

complete responsibility for the management of the police

department and of the Internal Affairs Unit.

Plaintiff claims that in Farabella’s role as policymaker

and supervisor for the Millville police department, Farabella

acted with deliberate indifference to the consequences, and he

established and maintained policies, practices, and customs

regarding the un-checked use of excessive force by Dixon and the

entire police department. Plaintiff also claims that Farabella

failed to train and supervise the Millville police officers so

that they would not engage in excessive force, and they would

otherwise fail to perform effective internal affairs procedures

to curb the use of excessive force.

Farabella and the City of Millville have again moved to

dismiss Plaintiff’s claims against them. Defendants argue that

Plaintiff’s allegations that Defendants “did not do enough” with

regard to Dixon fail to show the requisite deliberate

indifference and fostering of a custom of excessive force to

maintain his claims against them. Plaintiff has opposed

Defendants’ motions.

DISCUSSION

A. Subject Matter Jurisdiction

This Court has subject matter jurisdiction over this action

pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over

Plaintiff’s state law claims under 28 U.S.C. § 1367(a).

B. Standard for Motion to Dismiss

When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted

pursuant to Federal Rule of Civil Procedure 12(b)(6), a court

must accept all well-pleaded allegations in the complaint as

true and view them in the light most favorable to the plaintiff.

Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well

settled that a pleading is sufficient if it contains “a short

and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, 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 . . . .” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)

(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,

47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,

40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)).

To determine the sufficiency of a complaint, a court must

take three steps: (1) the court must take note of the elements a

plaintiff must plead to state a claim; (2) the court should

identify allegations that, because they are no more than

conclusions, are not entitled to the assumption of truth; and

(3) when there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief. Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 664, 675, 679 (2009) (alterations,

quotations, and other citations omitted).

A district court, in weighing a motion to dismiss, asks

“not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claim.”

Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416

U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our

decision in Twombly expounded the pleading standard for ‘all

civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in

the coffin for the ‘no set of facts’ standard that applied to

federal complaints before Twombly.”). “A motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough

facts to state a claim to relief that is plausible on its

face.’” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at

570).

C. Analysis

For a claim against a municipality under § 1983, a

municipality cannot be held liable under a theory of respondeat

superior, but instead a municipality may be liable under § 1983

“if the plaintiff identifies a municipal ‘policy’ or ‘custom’

that was the ‘moving force’ behind the injury.” Jewell v.

Ridley Township, 497 F. App’x 182, 185 (3d Cir. 2012)

(quoting Monell v. Dept. of Social Servs. of City of N.Y., 436

U.S. 658, 691 (1978)). A policy exists “when a decision-maker

with final authority issues an official proclamation, policy, or

edict.” Noble v. City of Camden, 112 F. Supp. 3d 208, 221

(D.N.J. 2015) (internal quotations and citations omitted). “[A]

custom may be established by showing that a given course of

conduct, although not specifically endorsed or authorized by

law, is so well-settled and permanent as virtually to constitute

law.” Id. (internal quotations and citations omitted).

With regard to Farabella, there are two theories of

supervisory liability under which he may be found liable.

First, Farabella may be found liable if he “established and

maintained a policy, practice or custom which directly caused

[the] constitutional harm.” Santiago v. Warminster Twp., 629

F.3d 121, 127 n.5 (3d Cir. 2010). Second, Farabella “may be

personally liable . . . if he . . . participated in violating

the plaintiff’s rights, directed others to violate them, or, as

the person in charge, had knowledge of and acquiesced in his

subordinates’ violations.” Id. at 127 (quoting A.M. ex rel.

J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d

Cir. 2004)); see also Capps v. Dixon, 2021 WL 2024998, at *5–7

(D.N.J. May 21, 2021) (stating that “there are some

uncertainties about the applicability of supervisory liability

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

Fourth Amendment,” but the Third Circuit has recognized “two

general ways in which a supervisor-defendant may be liable for

unconstitutional acts undertaken by subordinates” (citing Barkes

v. First Correctional Medical, Inc., 766 F.3d 307, 316 (3d Cir.

2014)).6

6 Farabella argues that the Third Circuit has only found a claim

for supervisory liability viable in the context of the Eighth

Amendment and asks this Court to hold that supervisory liability

claims in the context of the Fourth Amendment are not similarly

viable, primarily because “Iqbal put the question of supervisory

liability to rest,” and the Third Circuit caselaw cited herein

is premised on “misguided” decisions in 2004 and 1989. This

Court declines Farabella’s invitation to “correct” the Third

Circuit’s precedent and hold that supervisory liability in the

context of Fourth Amendment excessive force claims is not viable

Defendants argue that Plaintiff’s municipal liability and

supervisory liability claims fail because: (1) Plaintiff has not

alleged a sustained finding of the use of excessive force

against Dixon or Runkle prior to their encounter with Plaintiff

which would put Defendants on notice of those officers’ actions

and trigger the need for a change in custom, policy, or

training; (2) Plaintiff does not articulate a procedure required

in New Jersey to review use of force reports that Defendants

failed to follow; (3) Plaintiff has not shown that the sheer

volume of Dixon’s use of force reports when compared to other

officers in Millville or New Jersey as a whole were “abnormal”

and not “justified”; (4) Plaintiff pleads himself out of his

claims because he admits that Farabella talked with Dixon about

after Iqbal. Farabella also contends that even if such a theory

of liability is viable, he is entitled to qualified immunity.

The determination of Farabella’s entitlement to qualified

immunity is premature at this time based on the content of

Plaintiff’s complaint. See Shoffler v. City of Wildwood, New

Jersey, 2018 WL 3218681, at *3 (D.N.J. 2018) (citing Thomas v.

Independence Twp., 463 F.3d 285, 291 (3d Cir. 2006) (quotations

and other citations omitted) (denying the defendant’s motion to

dismiss the complaint based on qualified immunity, explaining

“Qualified immunity is immunity from suit rather than merely a

defense to liability and should thus be resolved as early as

possible; however, it is generally not appropriate for

disposition on a motion to dismiss. The qualified immunity

analysis involves a fact-intensive inquiry that is generally

ill-suited for resolution at the pleadings stage. . . . [I]t is

generally unwise to venture into a qualified immunity analysis

at the pleading stage as it is necessary to develop the factual

record in the vast majority of cases. As a result, qualified

immunity will be upheld on a 12(b)(6) motion only when the

immunity is established on the face of the complaint.”).

his actions and he was being monitored, which proves that

Defendants were not acting with deliberate indifference; and (5)

Plaintiff’s claims boil down to his contention that the City of

Millville and Farabella did not do a good enough job monitoring

Dixon’s use of force and Defendants could have done more, which

is not enough to establish municipal or supervisory liability.

Defendants’ arguments are misplaced in the context of

assessing the plausibility of Plaintiff’s claims, which are

based on facts the Court must assume to be true. Although some

of Dixon’s numerous uses of force may not have been excessive,

Farabella and other supervisors may have spoken with Dixon once

or twice about his actions, prior to the June 2017 incident with

Plaintiff no excessive force complaint had been sustained

against Dixon, and New Jersey did not have a formal procedure to

review use of force reports, Plaintiff’s amended complaint

details in-depth: how Dixon’s use of force during a time period

before the June 2017 incident was significantly greater than any

other officer in Millville and the entire state;7 it was well-

7 Defendants argue that they are unaware of any court that has

relied on use of force reports that did not result in sustained

civilian complaints as a basis for establishing a deliberate

indifference to a pattern or practice of excessive use of force.

Even accepting that premise as valid, Plaintiff’s claims against

Defendants are not solely based on the number of Dixon’s use of

force reports. Moreover, as observed by the Court, Plaintiff

has alleged facts to support Plaintiff’s contention that

Defendants’ failure to sustain any citizen’s complaint is by

itself deliberate indifference. In other words, Defendants’

known in the Millville police department that Dixon had a

predilection for punching people in the face; Farabella often

defended and praised Dixon; the Millville police department,

helmed by Farabella, failed to conduct any meaningful review of

use of force reports, regardless of a formal review procedure

set by the state; a fellow officer, Proffit, who was second to

Dixon in his use of force, was indicted four months before

Dixon’s use of excessive force against Plaintiff for seven

counts of assault or abuse of force against citizens of

Millville, which shows additional notice of supervision and

training failures; and Defendants never sustained one citizen’s

complaint about Proffit, Dixon or any other officer’s excessive

use of force, not because they did not use excessive force, but

because they intentionally buried their head in the sand or

deliberately sided with Dixon and the other officers.8

alleged failure to properly review use of force reports and

citizen complaints caused Dixon’s and other officers’ conduct to

go unchecked. Plaintiff alleges the volume of use of force

reports by Dixon and Proffit is the smoke, and the ultimate

indictments of Dixon and Proffit, and Dixon’s alleged assault on

Plaintiff, Capps, Joyce, and others, is the fire. Plaintiff

alleges that Defendants deliberately failed to temper the smoke

of which they were aware, resulting in the fire that injured

Plaintiff.

8 Allegations that an offending officer was the subject of

similar prior complaints, of which the policymaker was aware,

can support an inference that the policymaker tacitly had notice

of and tacitly condoned the use of excessive force. Zampetis v.

City of Atlantic City, 2016 WL 5417195, at *5 (D.N.J. 2016)

(citing Argueta v. U.S. Immigration and Customs Enforcement, 643

Defendants primarily argue that to prove his claims against

them, Plaintiff must show that their actions amounted to

deliberate indifference, and Plaintiff has only described their

imperfect actions where perfection is not the standard. The

Court does not disagree with Defendants that to be successful on

a municipal liability and supervisory liability claim, a

plaintiff must establish that the municipality or supervisor

acted with deliberate indifference, and that negligence is not

sufficient. As the Supreme Court set forth “in Monell and ha[s]

repeatedly reaffirmed, Congress did not intend municipalities to

be held liable unless deliberate action attributable to the

municipality directly caused a deprivation of federal rights.”

Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S.

397, 415 (1997).

Here, at this stage of the case where Plaintiff does not

have to prove his claims, but simply plead evidence to make his

claims plausible, Plaintiff has more than sufficiently pleaded

F.3d 60, 74 (3d Cir. 2011) (noting that “the typical ‘notice’

case seems to involve a prior incident or incidents of

misconduct by a specific employee or group of employees,

specific notice of such misconduct to their superiors, and then

continued instances of misconduct by the same employee or

employees”); Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir.

1996) (holding that five complaints of excessive force against

the officer who used excessive force against the plaintiff,

which had been transmitted through the chain of command to the

policymaker-chief of police were sufficient to show that the

policymaker knew of the officer's violent behavior)).

facts to support his claims that Farabella and the City of

Millville had notice and “consciously disregarded an obvious

risk that the officer[s] would subsequently inflict a particular

constitutional injury,” and this deliberate indifference caused

the officers to use excessive force on Plaintiff. Brown, 520

U.S. at 411; Connick, 563 U.S. at 58-62. Plaintiff’s claims

against Farabella and the City of Millville may proceed. Cf.

Capps v. Dixon, 2021 WL 2024998, at *5–7 (D.N.J. May 21, 2021)

(denying the defendants’ motions to dismiss, finding that the

plaintiff sufficiently pleaded her supervisory liability claim

against Farabella, and finding that “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.”).

CONCLUSION

For the reasons expressed above, Defendants’ motions to

dismiss Plaintiff’s claims against them will be denied. An

appropriate Order will be entered.

Date: June 28, 2021 s/ Noel L. Hillman

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