# COTTMAN v. FARABELLA

> District Court, D. New Jersey · June 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10270997

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** June 28, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10270997

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10270997. Public record. Not legal advice.