BRINSON v. WILLIAMS

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

PATRICIA BRINSON,

Civ. No. 20-9606 (KM)(JBC)

Plaintiff,

OPINION

v.

CITY OF NEWARK, et al.

Defendants.

KEVIN MCNULTY, U.S.D.J.:

This action arises from a vehicle chase in which Newark Police Officers A.

Stokes and Malcolm Kirkland (collectively “Officer Defendants”) attempted to

apprehend driver Shakeera Williams. As alleged, Ms. Williams was evading

police when she collided with another car, operated by Carlos Melendez, and

struck a pedestrian, Patricia Brinson, plaintiff in this matter.

Ms. Brinson initiated an action in New Jersey Superior Court, Essex

County (Docket No. EXS-L-4002-20) against the City of Newark (“Newark” or

the “City”), driver Shakeera Williams, Yasir Harrison (owner of the vehicle Ms.

Williams was operating), Carlos Melendez, Aida Melendez (owner of the vehicle

Mr. Melendez was operating), Police Officer A. Stokes, Police Officer Malcom

Kirkland, and New Jersey Property-Liability Insurance Guaranty Association

(“PLIGA”). (DE 1 at 2.) 1 On July 29, 2020, the City removed the matter to the

1 Citations to the record will be abbreviated as follows. Citations to page numbers

refer to the page numbers assigned through the Electronic Court Filing system, unless

otherwise indicated:

“DE” = Docket entry number in this case.

“1AC” = Plaintiff’s First Amended Complaint (DE 22)

“Kirkland Cert.” = Certification of Officer Malcolm Kirkland (DE 25-2)

“Incident Report” = Incident Report prepared by Officer Kirkland (DE 25-3)

United States District Court for the District of New Jersey pursuant to 28

U.S.C. §§ 1441 and 1446(a). (Id.) Defendants Carlos Melendez and Aida

Melendez consented to removal. (Id. at 3.) PLIGA later consented to removal as

well.

Thereafter, Newark filed a motion (DE 5) to dismiss plaintiff’s Complaint

as against itself only, for failure to state a claim. On October 26, 2020, the

Court filed an Opinion (DE 19) and Order (DE 20) granting the City’s motion

without prejudice to a motion to amend.2

“Google Maps Doc.” = Google Maps depiction of the route of the vehicle case (DE

25-5)

“JOC” = Judgement of Conviction of Shakeera Williams (DE 25-6)

“Plea” = Transcript of Shakeera Williams’s Guilty Plea (DE 25-7)

“SUMF” = Statement of Undisputed Material Facts in Support of Officer

Defendants’ Motion for Summary Judgment (DE 25-8)

“Audio Rec.” = Audio Recording of Police Dispatch on June 13, 2018

“AG Pursuit Policy” = the New Jersey Police Vehicular Pursuit Police issued by

the State of New Jersey’s Office of the Attorney General (DE 36-1)

“NPD Pursuit Policy” = the Newark Police Department’s General Order: 94-03

(Revised) Vehicle Pursuit Policy (DE 36-2)

“MSJ Brief” = Brief in Support of Officer Defendants’ Motion for Summary

Judgment (DE 25-9)

“MSJ Opp.” = Plaintiff’s Opposition to Officer Defendants’ Motion for Summary

Judgment (DE 36)

“MSJ Reply” = Reply Brief in support of Officer Defendants’ Motion for

Summary Judgment (DE 43)

“MTD Brief” = Brief in Support of the City of Newark’s Motion to Dismiss (DE

26-3)

“MTD Opp.” = Plaintiff’s Opposition to the City of Newark’s Motion to Dismiss

(DE 34)

“MTD Reply” = Reply Brief in Further Support of the City of Newark’s Motion to

Dismiss (DE 42)

2 Certain matters were dismissed on consent, including Ms. Brinson’s tort claims

against the City and her claims for punitive damages and vicarious liability. (DE 19 at

3-5.) I also dismissed Ms. Brinson’s claims against the City under 42 U.S.C. § 1983

because the Complaint failed to plead facts with the required specificity. (DE 19 at 10.)

One month later, on November 26, 2020, Ms. Brinson filed a First

Amended Complaint (DE 22) against the previously-named defendants, and

added as defendants Darnell Henry, retired Police Chief, and Samuel Demaio,

former Police Director.

Defendant PLIGA filed an Answer (DE 24) to the First Amended

Complaint with affirmative defenses and crossclaims against its co-defendants.

Before the Court is the Officer Defendants’ joint motion (DE 25) for

summary judgment dismissing the action as against them under Federal Rule

of Civil Procedure 56. Also before the Court is Newark’s motion (DE 26) to

dismiss the First Amended Complaint under Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim and to stay discovery. 3 The Officer

Defendants join in the City’s arguments as well. (MSJ Brief at 7.)

For the reasons provided herein, I will (1) deny the Officer Defendants’

motion (DE 25), (2) grant the City’s motion (DE 26) to with respect to all

punitive damages claims against it and with respect to the claims against

former Director Demaio and retired Chief Henry; and (3) deny the City’s motion

in all other respects.

I. Summary

a. Factual Allegations in the First Amended Complaint

On June 13, 2018, Officers Stokes and Kirkland, while on duty and

operating an unmarked patrol vehicle, observed Ms. Williams commit a traffic

offense while she was traveling westbound on Springfield Avenue in Newark.

(1AC Third Count ¶¶2-3.) The First Amended Complaint alleges that, though

the officers “had no knowledge of any actual or potential other illegal conduct,”

they initiated a high speed chase of Ms. Williams’s vehicle, a 2003 black Honda

Acura, without activating their sirens. (Id. at ¶¶4-5.) The officers then chased

Williams’s vehicle “through the intersection of South 12th Street and 18th

3 As a result of retirements, there have been substitutions of parties in

their official capacities. (See infra.) The current Acting Public Safety Director Acting

Chief of Police Lee Douglas join in the City’s arguments.

Avenue, before making a left headed west bound on South 18th Avenue.” (Id. at

¶11.) During the chase, Ms. Williams’s vehicle collided with Mr. Melendez’s

vehicle, a black 1999 GMC Yukon, which was traveling west on 16th Avenue,

towards the intersection of 16th Avenue and 13th Street (1AC Second Count

¶1; 1AC Third Count ¶12.) Williams’s vehicle then spun out of control and

crashed into Ms. Brinson, a pedestrian who was traveling west in the crosswalk

at the intersection of 16th Avenue and 13th Street. (1AC First Count ¶1; 1AC

Third Count ¶12.)

Ms. Brinson was transported via ambulance to University Hospital in

Newark, where she was diagnosed with multiple injuries, some requiring

surgical intervention. (1AC Third Count ¶13.) She was hospitalized for nine

days and underwent inpatient and outpatient rehabilitation for almost a year.

(Id. at ¶14.)

The First Amended Complaint asserts seven claims:4

Count One – State-law tort claims against Ms. Williams and Mr.

Harrison;

Count Two –State-law tort claims against Mr. Melendez, and Ms.

Melendez;

Count Three – State-law tort claims against the Officer Defendants, and

against the City on a theory of vicarious liability;

Count Four – Violations of Civil Rights pursuant to 42 U.S.C. § 1983

(“Section 1983”) against the Officer Defendants (“State-Created Danger

Claim”) and against the City;

Count Five – Violations of Section 1983 and 42 U.S.C. § 1988 (“Section

1988”) against the City (“Monell Claim”);

Count Six – Breach of statutory obligations to provide payment of

Personal Injury Protection Benefits and payment for bodily injury against

PLIGA;

4 The “Sixth Count” is listed twice. (See 1AC at p. 25-26.) I will refer to the

latter claim as Count Seven.

Count Seven – State law tort claims against unknown and unnamed

defendants John/Jane Doe 1-10, ABC Corporation and XYZ Partnership

1-10.

b. Pending Motions

The Officer Defendants filed a motion (DE 25) for summary judgment, in

lieu of an answer, to dismiss the matter against them with prejudice pursuant

to Federal Rule of Civil Procedure 56. The City filed a motion (DE 26) to dismiss

the First Amended Complaint as against itself, Public Safety Director Ambrose,

and Retired Police Director Demaio, for failure to state a claim under Federal

Rule of Civil Procedure 12(b)(6). The City also moves to stay discovery.

II. Officer Defendants’ Motion for Summary Judgment

a. Legal Standard

Summary judgment is appropriate where “the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is material if it “might

affect the outcome of the suit under the governing law” and a dispute about a

material fact is genuine “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will not

preclude the Court from granting a motion for summary judgment. See id.

A party moving for summary judgment has the initial burden of showing

the basis for its motion and must demonstrate that there is an absence of a

genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). “A party asserting that a fact [is not] genuinely disputed must support

the assertion by . . . citing to particular parts of materials in the record,

including depositions, documents . . ., affidavits or declarations, stipulations

(including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). After the

moving party adequately supports its motion, the burden shifts to the

nonmoving party to “go beyond the pleadings and by her own affidavits, or by

the depositions, answers to interrogatories, and admissions on file, designate

specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S.

at 324 (internal quotation marks omitted). To withstand a properly supported

motion for summary judgment, the nonmoving party must identify specific

facts and affirmative evidence that contradict the moving party. Anderson, 477

U.S. at 250. “[I]f the non-movant’s evidence is merely ‘colorable’ or is ‘not

significantly probative,’ the court may grant summary judgment.” Messa v.

Omaha Prop. & Cas. Ins. Co., 122 F. Supp. 2d 523, 528 (D.N.J. 2000) (quoting

Anderson, 477 U.S. at 249-50)). “If reasonable minds could differ as to the

import of the evidence,” however, summary judgment is not appropriate.

Anderson, 477 U.S. at 250-51.

“In considering a motion for summary judgment, a district court may not

make credibility determinations or engage in any weighing of the evidence;

instead, the nonmoving party’s evidence ‘is to be believed and all justifiable

inferences are to be drawn in his favor.’” Marino v. Indus. Crating Co., 358 F. 3d

241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255)). In that respect,

the Court’s role in deciding a motion for summary judgment is simply “to

determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at

249. Ultimately, there is “no genuine issue as to any material fact” if a party

“fails to make a showing sufficient to establish the existence of an element

essential to that party’s case.” Celotex, 477 U.S. at 322.

b. Officer Defendants’ Statement of Undisputed Material Facts

and Evidentiary Submissions

Officers Stokes and Kirkland submit that, on June 13, 2018, at

approximately 9:30 PM, they were operating an unmarked patrol car at the

intersection of Springfield Avenue and South 11th Street when they “observed

a vehicle disregard a traffic signal while traveling westbound” through the same

intersection. (SUMF ¶¶1-2; Kirkland Cert. ¶5; Incident Report at 2-3.) The

Officer Defendants submit that they “activated their lights and sirens and

began to close the gap on the vehicle to conduct a traffic stop of the suspect.”

(SUMF ¶3; Kirkland Cert. ¶5; Incident Report at 2.)

About twenty feet later, the suspect, later identified as Ms. Williams,

“made a right turn on South 12th Street traveling northbound against the flow

of traffic.” (SUMF ¶4; Kirkland Cert. ¶¶5,7; Incident Report at 3; Google Maps

Doc. at 1.) Ms. Williams then traveled approximately 400 feet, arrived at the

intersection of South 12th Street and 18th Avenue, and then made a left onto

18th Avenue. (SUMF ¶6; Kirkland Cert. ¶¶5,7; Incident Report at 3; Google

Maps Doc. at 1.) The Officer Defendants submit that, as Ms. Williams

approached the intersection, she “began driving in a reckless manner and

started to accelerate.” (SUMF ¶7; Kirkland Cert. ¶7; Incident Report at 3; see

also 1AC Third Count ¶11.) At that point, Officers Stokes and Kirkland

recognized that Ms. Williams was fleeing. They “deactivated their lights and

sirens and terminated the pursuit as [Ms.] Williams turned right (northbound)

onto 13th Street.” (SUMF ¶9; Kirkland Cert. ¶¶ 5, 7-8; Incident Report at 3.)

The Officer Defendants further submit that “[a]t the time they radioed in

their patrol number, [their] emergency sirens could be heard on the dispatch.”

(SUMF ¶¶10-11; Kirkland Cert. ¶8; Audio Rec. 9:36:26.) Fourteen seconds

later, the police sirens can no longer be heard, as the officers “advised dispatch

of the license plate and direction of flight of [Ms. Williams], and requested back

up.” (SUMF ¶12; Kirkland Cert. ¶8; Audio Rec. 9:36:40.) Around 9:37 PM, the

officers informed dispatch that they lost sight of the vehicle while they were

turning onto 13th Street. (SUMF ¶13; Kirkland Cert. ¶8; Audio Rec. 9:37:32.)

Seconds later, the officers arrived at the scene of the accident in question.

(SUMF ¶¶ 13-5; Kirkland Cert. ¶8; Audio Rec. 9:38:00.)

The Officer Defendants submit that the distance from where they first

observed Ms. Williams’ traffic violation to the place where they lost sight of her

vehicle at 13th Street and 18th Avenue is .2 miles. (SUMF ¶16; Kirkland Cert.

¶7; Google Maps Doc. at 1-2.) The distance from the intersection of 13th Street

and 18th Avenue to the site of the accident is .3 miles. (SUMF ¶17; Kirkland

Cert. ¶7; Google Maps Doc. at 1-2.) Overall, the entire route traveled by Ms.

Williams from the time officers attempted to stop the vehicle to the scene of the

accident is a half mile. (SUMF ¶18; Kirkland Cert. ¶7; Google Maps Doc. at 1-

2.)

Ms. Williams was later charged with failure to observe a traffic signal,

reckless driving, driving with a suspended license, careless driving resulting in

property damage, driving under the influence of liquor or drugs, operating a

vehicle in possession of a controlled dangerous substance, and child

endangerment. (SUMF ¶23; Kirkland. Cert. ¶5; Incident Report at 3.) Ms.

Williams subsequently pleaded guilty to resisting arrest by eluding after

instruction to stop and aggravated assault by attempting to cause significant

bodily injury. (SUMF ¶25; Kirkland Cert. ¶¶9-10; JOC at 2; Plea at 4, 7-9.) At

the plea hearing, Ms. Williams admitted that the officers attempted to pull her

vehicle over with their lights and sirens activated, and that she fled in

response. (SUMF ¶26; Kirkland Cert. ¶10; Plea at 7.)

Ms. Brinson admits that the Officer Defendants were on duty on June

13, 2018, and that they were traveling in an unmarked vehicle on Springfield

Avenue towards the intersection of South 11th Street. (OSUMF ¶1.) She further

admits that the Officer Defendants observed the driver of a black Acura commit

a “summary traffic offense,” (Id. at ¶2) and that the driver of that vehicle was

later identified as Shakeera Williams (Id. at ¶20). However, Ms. Brinson denies

all other statements. She stresses in addition that the Officer Defendants have

not filed an answer to the Amended Complaint, and that depositions and

documentary discovery have not yet been conducted. (OSUMF ¶1-3.)

Additionally, Ms. Brinson states that the officers’ evidentiary submissions,

including the audio recording and documents related to Ms. Williams’s criminal

proceedings, were not previously produced to her, but were referenced for the

first time in support of the Officer Defendants’ summary judgment motion. (Id.)

c. Analysis

I agree that this summary judgment motion, filed in advance of

discovery, is premature.

Now it is true, of course, that Ms. Brinson has the burden to produce

evidence in opposition to a properly supported motion for summary judgment:

A party asserting that a fact cannot be or is genuinely disputed

must support the assertion by:

(A) citing to particular parts of materials in the record, including

depositions, documents, electronically stored information,

affidavits or declarations, stipulations (including those made for

purposes of the motion only), admissions, interrogatory answers,

or other materials; or

(B) showing that the materials cited do not establish the absence

or presence of a genuine dispute, or that an adverse party cannot

produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

The entire structure of Rule 56, however, presumes that the parties have

had a fair opportunity to compile a record and marshal the necessary facts.

Where a party opposing a summary judgment motion believes more discovery

is needed, Rule 56(d) supplies the correct procedure:

If a nonmovant shows by affidavit or declaration that, for specified

reasons, it cannot present facts essential to justify its opposition,

the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take

discovery; or

(3) issue any other appropriate order.

Fed. R. Civ. P. 56(d). “The affidavit or declaration must address the following

factors: ‘(1) what particular information is sought; (2) how, if uncovered, it

would preclude summary judgment; and (3) why it has not previously been

obtained.’” Ensey v. Gov’t Emps. Ins. Co., 92 F. Supp. 3d 253, 258 (D.N.J.

2015), aff'd, 663 F. App’x 172 (3d Cir. 2016) (quoting Speth v. Goode, No. 95–

0264, 2012 WL 3277105, at *6 (D.N.J. Aug. 9, 2012)).

Counsel for Ms. Brinson has not followed that procedure to the letter.

Still, her contention that the summary judgment motion is premature is more

than plausible at this very early stage. She notes that discovery has not so

much as begun. (MSJ Opp. at 14.) She cites critical missing information, such

as “dispatch records, master recordings and audio transmissions relative to the

pursuit, CAD reports, 911 calls, internal investigations and reports, dash cam

and body cam videos, Defendants’ rate of speed, whether Defendants received

authorization to engage in the pursuit, and whether they were advised to

terminate the pursuit.” (Id. at 15.) And of course there have been no

depositions of the participants. The relevance of such evidence and the reason

it has not yet been obtained are obvious.

The Officer Defendants have attempted to skip the filing of an answer or

motion to dismiss, and jump directly to summary judgment. I do not suggest

bad faith. The Officers have, for example, voluntarily produced the Incident

Report and Officer Log, as well as an audio recording of their communications

with dispatch, and this evidence is surely relevant.5 Still, a pre-answer grant of

summary judgment where the issues are factual, not legal, would be out of the

ordinary. I will not lightly deny an injured plaintiff her right to probe the facts

based on depositions and other discovery, as opposed to a summary judgment

record curated by her adversary.

I do not prejudge the issues. I am not satisfied, however, that I possess

an adequate record, and therefore will deny the summary judgment motion.6

5 Judicial notice may also supply such basic facts as the length and layout

of public streets where the chase occurred, or Ms. Williams’s guilty plea to criminal

charges.

6 For the guidance of the parties, however, I will state some relevant legal

principles.

First, as to individual officers, a possible vehicle for a summary judgment

motion that comes early—but not this early—might be qualified immunity. “The

doctrine of qualified immunity insulates government officials who are performing

discretionary functions ‘from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.’” James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir.

2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L.Ed.2d

396 (1982)). Application of the immunity depends on (1) whether the facts put forward

by the plaintiff show a violation of a constitutional right; and (2) whether the right at

issue was clearly established at the time of the alleged misconduct. Id.; James, 700

F.3d at 679.

While it is preferable that qualified immunity be addressed early, some factual

development may nevertheless be required. I am confident that the parties, guided by

the Magistrate Judge, can identify and target the documents and depositions

necessary to a resolution of the case.

Second, the elements of a state-created danger claim (Count 4) are as follows:

(1) [t]he harm ultimately caused was foreseeable and fairly direct;

(2) a state actor acted with a degree of culpability that shocks the conscience;

(3) a relationship between the state and the plaintiff existed such that the

plaintiff was a foreseeable victim of the defendant’s acts, or a member of a

discrete class of persons subjected to the potential harm brought about by the

state’s actions, as opposed to a member of the public in general; and

(4) a state actor affirmatively used his or her authority in a way that created a

danger to the citizen or that rendered the citizen more vulnerable to danger

than had the state not acted at all.

Sauers v. Borough of Nesquehoning, 905 F.3d 711, 717 (3d Cir. 2018) (alterations in

original) (quoting Haberle v. Troxell, 885 F.3d 170, 176-77 (3d Cir. 2018)). The U.S.

Supreme Court has elaborated in County of Sacramento v. Lewis, 523 U.S. 833 (1998),

which is discussed in Sauers. The issue may boil down to whether the officers were

called upon to make split-second decisions, in which case an intent-to-harm standard

applies, or whether there was time to deliberate, in which case a conscious-disregard

standard may apply. This issue, among others, will depend on an analysis of the facts.

Third, the state law tort claim (Count 3) may turn on the presence, or not, of

immunity under the New Jersey Tort Claims Act (“NJTCA”), N.J.S.A. 59:1-1, et seq. In

particular, see N.J.S.A. 59:5-2(b), which applies to police pursuit:

Neither a public entity nor a public employee is liable for: . . .

b. any injury caused by:

(1) an escaping or escaped prisoner;

(2) an escaping or escaped person;

(3) a person resisting arrest or evading arrest;

. . . or

c. any injury resulting from or caused by a law enforcement officer's pursuit of

a person.

See also Tice v. Cramer, 627 A.2d 1090, 1092 (1993).

One issue requiring factual exploration may be the exception from immunity in

the case of “willful misconduct.” N.J.S.A. 59:3-14(a); see also Alston v. City of Camden,

773 A.2d 693, 702 (N.J. 2001). In the context of police vehicle pursuits, willful

misconduct “has two elements: 1) disobeying either a specific lawful command of a

superior or a specific lawful standing order and 2) knowing of the command or

standing order, knowing that it is being violated and intending to violate it.” Id.

(internal quotations omitted). Here, the rate of speed, the officers’ adherence to vehicle

pursuit guidelines, the point at which they abandoned the chase, and other facts will

go into the court’s determination.

III. The City’s Motion to Dismiss

a. Legal Standard

Federal Rule of Civil Procedure 8(a) does not require that a complaint

contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation to

provide the ‘grounds’ of [her] ‘entitlement 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); see Phillips v.

Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Rule 8 “requires a

‘showing’ rather than a blanket assertion of an entitlement to relief.” (citation

omitted)). Thus, the complaint’s factual allegations must be sufficient to raise a

plaintiff’s right to relief above a speculative level, so that a claim is “plausible

on its face.” Twombly, 550 U.S. at 570; see also West Run Student Hous.

Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013).

That facial-plausibility standard is met “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard

is not akin to a ‘probability requirement’ . . . it asks for more than a sheer

possibility.” Id. For the purposes of a motion to dismiss, the facts alleged in the

complaint are accepted as true and all reasonable inferences are drawn in favor

of the plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman Const.

Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).

b. Punitive Damages and Vicarious Liability against the City

The City submits that Ms. Brinson is not entitled to punitive damages as

a matter of law, and that it cannot be held vicariously liable under any of her

claims. (MTD Brief at 17.)

Ms. Brinson does not respond to the punitive damages point. (See

generally Opp. Brief.) She conceded in response to the City’s first motion to

dismiss that the City cannot be compelled to pay punitive damages. (DE 14 at

7.) Therefore, all punitive damages claims against the City are dismissed as a

matter of law, with prejudice.

The vicarious liability claim against the City, as to the Section 1983

claim, is asserted as a Monell claim in Count Five.7 (1AC Count 5 ¶¶ 1-22.)

Monell liability requires that the plaintiff “(i) demonstrate the existence of an

unlawful policy or custom; (ii) that resulted in a deprivation of the rights,

privileges, or immunities secured by the Constitution or laws of the United

States; and (iii) that the policy or custom was the proximate cause of the

alleged deprivation.” Maldonado v. City of Passaic Bd. of Educ., No. 17-12245,

2020 WL 289649, at *7 (D.N.J. Jan. 21, 2020) (citing Bielevicz v. Dubinon, 915

F.2d 845, 850 (3d Cir. 1990)); Estate of Roman v. City of Newark, 914 F.3d 789,

798 (3d Cir.), cert. denied, 140 S. Ct. 82, 97 (2019) (citing Monell v. New York

City Dept. of Soc. Servs, 436 U.S. 658, 694 (1978)).

[1] “Policy is made when a decisionmaker possess[ing] final

authority to establish municipal policy with respect to the action

issues an official proclamation, policy, or edict.” Andrews v. City of

Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (alteration in

original) (internal quotation marks omitted).

[2] “Custom, on the other hand, can be proven 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.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.

1990) (Becker, J.); see also Brown v. Muhlenberg Twp., 269 F.3d

205, 215 (3d Cir. 2001) (“A custom ... must have the force of law by

virtue of the persistent practices of state [or municipal] officials.”

(internal quotation marks omitted)).

Estate of Roman, 914 F.3d at 798.

The complaint does allege the existence of such a policy or custom.8 I will

deny the motion to dismiss because such facts are largely within the control of

the City, and may be explored in discovery as appropriate.

7 Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 694 (1978))

8 The First Amended Complaint asserts that the City furthered such de facto

policy or custom by: “(1) ignoring vehicle pursuits restrictions, (2) forgoing supervisory

oversight of vehicle pursuits, and (3) relaxing or waiving departmental training and

In addition, it is axiomatic that for Monell liability to attach to a

municipality, there must be an underlying constitutional violation. Mulholland

v. Gov’t Cty. of Berks, Pa., 706 F.3d 227, 238 n.15 (3d Cir. 2013) (“It is well-

settled that, if there is no violation in the first place, there can be no derivative

municipal claim.”). Thus, the Magistrate Judge may opt to prioritize discovery

as to the underlying violation, proceeding to the Monell issues as necessary.

c. Claims Against Former Director Demaio and Retired Police

Chief Henry

Finally, the First Amended Complaint asserts claims against former

Director Samuel Demaio and retired Chief Darnell Henry. For the reasons that

follow, I will grant the motion to dismiss the action against both individuals.

i. All claims against Director Demaio

As an initial matter, the City submits that the claims against former

Director Demaio should be dismissed because he ceased being a director of the

Newark Police Division in 2014, before the events giving rise to this action

occurred.9 (MTD Brief at 14.) Ms. Brinson does not offer facts to the contrary.

(See generally MTD Opp.) Therefore, all claims against former Director Demaio,

whether in an official or personal capacity, are dismissed with prejudice.

ii. Other official capacity claims

Regarding the official-capacity claims against retired Police Chief Henry,

Newark submits that the appropriate party would be the Director of Public

Safety. (MTD Brief at 14.) After the accident at issue, Police Chief Henry retired,

and Public Safety Director Ambrose temporarily undertook the responsibilities

reporting for vehicle pursuits, which resulted in the violation of citizens’ constitutional

rights, including Plaintiff.” (1AC Fifth Count ¶3.)

9 The Court will take notice of this publicly available information. See

Hofman v. Time Warner Cable Inc., No. 12-00978, 2013 WL 2460121, at *4 (D.N.J.

June 6, 2013) (citing, Benak v. Alliance Capital Management, L.P., 349 F.Supp.2d 882,

888 n. 8 (D.N.J.2004), aff’d, 435 F.3d 396 (3d Cir.2006) (“[O]n a motion to dismiss the

Court may take judicial notice of publicly available documents to demonstrate that a

plaintiff was on notice of the relevant public information.”); see also David Giambus,

Newark Police Director Samuel DeMaio says goodbye after 28 years in the department,

NJ.com, Feb. 22, 2014 Newark Police Director Samuel DeMaio says goodbye after 28

years in the department - nj.com (last visited June 24, 2021).

of the Office of the Police Chief. (Id. at 14-15.) During the pendency of this

action, Director Ambrose retired, and Brian O’Hara was appointed as the

Public Safety Director. (MTD Reply at 1.) Additionally, Lee Douglas was

appointed as the Acting Chief of Police.10 (Id.)

Federal Rule of Civil Procedure 25(d) provides:

An action does not abate when a public officer who is a party in an

official capacity dies, resigns, or otherwise ceases to hold office

while the action is pending. The officer’s successor is automatically

substituted as a party. Later proceedings should be in the

substituted party’s name, but any misnomer not affecting the

parties’ substantial rights must be disregarded. The court may

order substitution at any time, but the absence of such an order

does not affect the substitution.

Fed. R. Civ. P. 25(d). Because Retired Chief Henry no longer holds his official

position, his successor is automatically substituted. Id.

For purposes of the official capacity claims, Acting Public Safety Director

O’Hara and Acting Chief of Police Lee Douglas are the appropriate parties. The

clerk will be directed to substitute them.

iii. Personal capacity claims against Chief Henry

“Personal-capacity suits seek to impose personal liability upon a

government official for actions [the official] takes under color of state law.”

Kentucky, 473 U.S. at 165. To establish personal liability under Section 1983,

a plaintiff must show that (1) the official as acting under color of law and (2)

caused deprivation of a federal right. Id. With respect to a municipal

decisionmaker, the plaintiff must allege that the official directed or participated

in the alleged unconstitutional policy or custom. See McTernan c. City of York,

10 Again, the Court will take judicial notice of this publicly available

information. See, supra, n.5. See also MAYOR RAS J. BARAKA’S STATEMENT ON THE

RETIREMENT OF POLICE CHIEF DARNELL HENRY - Insider NJ (last visited June 24,

2021); Department: Public Safety (newarknj.gov) (last visited June 24, 2021); Baraka

Announces New Public Safety Director - Insider NJ Department: Public Safety

(newarknj.gov) (last visited June 24, 2021); Newark Mayor Baraka Announces Captain

Lee Douglas As Acting Police Chief (insidernj.com) Department: Public Safety

(newarknj.gov) (last visited June 24, 2021).

564 F.3d 636, 658-59 (3d Cir. 2009) (upholding dismissal of Section 1983

claim where plaintiff “d[id] not plead knowledge of such directives by a

municipal decisionmaker, such as the Mayor or Police Chief” and did not allege

“that either the Mayor or the Police Chief were aware of, let alone directed” the

challenged conduct). Further, mere “conclusory and general claims of failure to

screen, train, or supervise employees to avoid constitutional violations” are not

sufficient. Wood v. Williams, 568 F. App’x 100, 104 (3d Cir. 2014)

Here, Ms. Brinson alleges that (1) the City furthered a de facto policy or

custom of permitting its officers to engage in unauthorized vehicle pursuits for

minor traffic offenses; and (2) that Chief Henry, by virtue of his position as

chief executive officer of the Newark Police Department, should be charged with

knowledge of and responsibility for such policies, as well as failure to supervise

officers. (1AC Fifth Count ¶¶3-19.) I have leniently permitted the plaintiff to

explore the City’s potential Monell liability in discovery. But to attribute an

unconstitutional policy to a particular individual, merely by virtue of the

responsibilities of his position, goes a step too far. These conclusory allegations

do not support a claim against retired Chief Henry. See Wood, 568 F. App’x at

103-04. Therefore, I will grant the motion to dismiss the personal capacity

claims against retired Chief Henry.

IV. Conclusion

For the reasons provided, I will (1) deny the Officer Defendants’ motion

(DE 25) for summary judgment, (2) grant the City’s motion (DE 26) to dismiss

with respect to all punitive damages claims against it and with respect to the

claims against former Director Demaio and retired Chief Henry; and (3) deny

City’s motion in all other respects. An appropriate order follows.

Dated: July 13, 2021

/s/ Kevin McNulty

____________________________________

Kevin McNulty

United States District Judge