BARTLEY v. STATE OF NEW JERSEY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

:

EVERTON BARTLEY, :

: Case No. 3:18-cv-16283(BRM)(TJB)

Plaintiff, :

:

v. : MEMORANDUM OPINION

:

STATE OF NEW JERSEY, et al., :

:

Defendants. :

:

Before this Court is pro se prisoner Everton Bartley’s (“Plaintiff”) Motion to Re-Open and

his Amended Complaint, filed pursuant to 42 U.S.C. § 1983. (ECF No. 27.) On August 30, 2019,

the Court entered an Opinion and Order dismissing Plaintiff’s initial Complaint (ECF No. 1) for

time bar issues and for failure to state a claim upon which relief may be granted, but gave Plaintiff

leave to file an amended complaint (ECF Nos. 6 & 7). His Amended Complaint is currently before

this Court for screening pursuant to 28 U.S.C. §§ 1915, 1915A.

I. BACKGROUND

In the Amended Complaint, Plaintiff again names Colonel Justin Dintino and Officer

Joseph Fuentes, John Doe Officers, and the New Jersey State Police Agency as defendants. (Am.

Compl. ¶¶ 2-6.) Plaintiff also now names the State of New Jersey and the Attorney General of the

State of New Jersey as defendants. (Am. Compl. ¶¶ 2-3.) Plaintiff again raises an unlawful search

claim against John Doe Officers. (Am. Compl. ¶ 23.) Plaintiff’s next three claims are labeled as

procedural and substantive due process claims against the State of New Jersey, the Attorney

General of the State of New Jersey, the Head of the New Jersey State Police, and Colonel Dintino

and Officer Fuentes; however, the Court construes the claims as supervisory liability claims. (Am.

Compl. ¶¶ 24-26.) Plaintiff alleges the State of New Jersey, by and through its Attorney General

and the Head of the New Jersey State Police, “whose duty it is to enforce Regulations, Policies,

New Jersey statutory law that pertains to citizens . . . , failed to protect Plaintiff’s ‘minimal

procedural due process’ rights by the use of insufficient mechanisms that did not protect the liberty

interest of Plaintiff and should have been prevented by issuing implementing Regulations.” (Am.

Compl. ¶ 25.) Plaintiff alleges the Defendants violated his procedural due process rights “because

the procedures that were used in prosecuting Plaintiff ignored the Directives, Policies, and statutes

of the state of New Jersey[] and were insufficient to safeguard requirements to secure Plaintiff’s

‘minimal due process.’” (Am. Compl. ¶ 24.) Plaintiff also alleges Defendants Dintino and Fuentes

failed to “recognize the actions of their subordinate police officers, whose duty it is to oversee

each and every action of the officers” who violated Plaintiff’s substantive and procedural due

process rights. (Am. Compl. ¶ 26.) Plaintiff again raises a conspiracy claim against the officer

Defendants and now adds the State of New Jersey and the Attorney General to the claim. (Am.

Compl. ¶ 27.) Plaintiff argues the Defendants collectively conspired to “protect the initial illegal

actions of Defendants John Doe” and continuing with Plaintiff’s prosecution. (Id.) Plaintiff’s final

claim alleges Plaintiff’s rights to Equal Protection of the law were violated when he was treated

differently to persons of a different class. (Am. Compl. ¶ 28.) Plaintiff is seeking the termination

of employment of Defendants John Doe, Dintino, and Fuentes. (Am. Compl. ¶ 30(D)(E).) Plaintiff

is also seeking monetary damages. (Am. Compl. ¶ 30(A)(B)(C).)

II. LEGAL STANDARD

A. Sua Sponte Dismissal

Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66

to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil actions

in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), seeks redress

against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim with

respect to prison conditions, see 42 U.S.C. § 1997e. The PLRA directs district courts to sua sponte

dismiss any claim that is frivolous, is malicious, fails to state a claim upon which relief may be

granted, or seeks monetary relief from a defendant who is immune from such relief. This action is

subject to sua sponte screening for dismissal under 28 U.S.C. § 1915(e)(2)(B) and 1915A because

Plaintiff is a prisoner who is proceeding as indigent.

According to the Supreme Court’s decision in Ashcroft v. Iqbal, “a pleading that offers

‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”

556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To

survive sua sponte screening for failure to state a claim, the complaint must allege “sufficient

factual matter” to show that the claim is facially plausible. Fowler v. UPMS Shadyside, 578 F.3d

203, 210 (3d Cir. 2009) (citation omitted). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir.

2012) (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se pleadings are liberally construed,

“pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v.

Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted).

B. Section 1983 Actions

A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his

constitutional rights. Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory ... subjects,

or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress . . . .

Therefore, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation

of a right secured by the Constitution or laws of the United States and, second, the alleged

deprivation was committed or caused by a person acting under color of state law. See West v.

Atkins, 487 U.S. 42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

III. DECISION

A. False Arrest, Illegal Search, Selective Enforcement, Conspiracy

Here, the allegations in Plaintiff’s Amended Complaint regarding the claims of illegal

search and seizure and conspiracy were raised in Plaintiff’s initial Complaint.1 (See ECF No. 1 at

4-5, 8-9; see also ECF No. 27-2 at 6-7.) Plaintiff’s equal protection claim was also raised

previously raised in the initial Complaint. (See ECF No. 1 at 5.) The Court addressed the claim as

a selective enforcement claim in the August 20, 2019 Opinion. Selective enforcement is a violation

of the Equal Protection Clause of the Fourteenth Amendment. Whren v. United States, 517 U.S.

806, 813, 116 S. Ct. 1769, 135 L.Ed.2d 89 (1996). To make a viable equal protection claim based

on selective enforcement, the Complaint must plausibly suggest that the challenged law

enforcement practice had a discriminatory effect and was motivated by a discriminatory purpose.

Carrasca v. Pomeroy, 313 F.3d 828, 834 (3d Cir. 2002). As the Court previously informed

Plaintiff, these claims are time barred. Section 1983 claims are governed by the applicable state’s

statute of limitations for personal-injury claims. Wallace v. Kato, 549 U.S. 384, 387 (2007); see

also Cito v. Bridgewater Twp. Police Dep’t, 892 F.2d 23, 25 (3d Cir. 1989). Under New Jersey

1 The Court notes Plaintiff does add the State of New Jersey, the Attorney General of the State of

New Jersey and the Head of the New Jersey State Police to these claims. As discussed below, all

claims against these Defendants in both their official and personal capacity fail.

law, there is a two-year statute of limitations period for personal-injury torts. N.J. Stat. Ann. §

2A:14–2. Therefore, Plaintiff’s § 1983 claims are governed by a two-year statute of limitations.

See Cito, 892 F.2d at 25. The limitation period begins to run on the accrual date, which is governed

by federal law. Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009). Under federal law, a claim accrues

when the facts which support the claim reasonably should have become known to the plaintiff.

Sameric Corp. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998). New Jersey law governs when

accrual of a § 1983 claim may be delayed pursuant to the discovery rule and when a limitation

period may be equitably tolled. See Dique v. New Jersey State Police, 603 F.3d 181, 185 (3d Cir.

2010). The discovery rule postpones a claim from accruing if a plaintiff is reasonably unaware that

he has suffered an injury or, even though he is aware of the injury, that it was the fault of an

identifiable person. See Caravaggio v. D’Agostini, 765 A.2d 182, 187 (N.J. 2001).

The Court found Plaintiff’s false arrest claims was time barred by the statute of limitations.

As explained previously, a claim of false arrest, and the accompanying claim for false

imprisonment, accrues immediately upon the arrest at issue. Wallace, 549 U.S. at 389–90 & n.3,

127 S. Ct. 1091; Singleton v. DA Philadelphia, 411 F. App’x 470, 472 (3d Cir. 2011) (accrual of

a claim for false arrest occurred on the date the plaintiff “was arrested and charges were filed

against him”). Nevertheless, while the claim accrues upon arrest, the statute of limitations does not

begin to run at the same time. Instead, the statute of limitations for a false arrest/imprisonment

claim begins to run “when the individual is released, or becomes held pursuant to legal process,”

i.e., when he is arraigned. Alexander, 367 F. App’x at 290 n.2 (citing Wallace, 549 U.S. at 389–

90, 127 S. Ct. 1091); see also Pittman v. Metuchen Police Dep’t, 441 F. App’x 826, 828 (3d Cir.

2011). The Court previously dismissed Plaintiff’s false arrest claim without prejudice because his

guilty plea was more than twenty years before the filing of the initial Complaint here.

The Court also found Plaintiff’s Fourth Amendment claim for unlawful search was

dismissed because it is barred by the two-year limitations period. That claim accrued, and the

limitation period began to run, at the time Plaintiff was injured in 1992. Mujaddid v. Wehling, 663

F. App’x 115, 119 (3d Cir. 2016) (explaining unlawful search claims accrue at the time of injury);

Rolax v. Whitman, 53 F. App’x 635, 637 (3d Cir. 2002) (unlawful search claim accrues at time of

search).

The Court also dismissed the selective enforcement claim as time barred. Typically, a

“selective-enforcement claim will accrue at the time that the wrongful act resulting in damages

occurs.” Dique, 603 F.3d at 188. Under certain circumstances, however, a plaintiff may be

reasonably unaware he has been injured, and, in such circumstances, the selective enforcement

claim does not accrue until the plaintiff becomes aware he has been the victim of selective

enforcement. Id. The Court explained in order to show delay of accrual, Plaintiff must plead facts

showing he was unaware of his injury. After analyzing relevant cases from this District, the Court

found the initial Complaint was replete with allegations showing Plaintiff was aware of the facts

necessary for his selective enforcement claim on the night of his arrest. Because Plaintiff’s filed

his initial Complaint over 20 years after his arrest, the claim is time barred.

Likewise, the Court dismissed the conspiracy claim as time barred. The Court explained

the New Jersey two-year statute of limitation is applicable to § 1985 claims and runs from when a

plaintiff knew or should have known of the alleged conspiracy. Dique, 603 F.3d at 189 (citing

Bougher v. Univ. of Pitts., 882 F.2d 74, 80 (3d Cir. 1989)). The Court found Plaintiff was clearly

aware of the selective enforcement, false arrest, illegal search at the time of his arrest, thus, his

conspiracy claim arising from these actions were also time barred by the statute of limitations.

Plaintiff’s Amended Complaint fails to address the deficiencies identified by the Court in

the August 20, 2019 Opinion regarding Plaintiff’s illegal search and seizure, selective

enforcement, and conspiracy claims. Plaintiff’s Amended Complaint is silent as to the time bar

issues and does not make a tolling argument. Therefore, for the reasons stated herein and in the

Court’s prior Opinion these claims remain time barred.

B. Supervisory Liability

The Court construes Plaintiff’s three remaining “substantive and procedural due process”

claims as supervisory liability claims. (Am. Compl. ¶ 24-26.) Plaintiff brings these claims against

the State of New Jersey, the Attorney General of the State of New Jersey, the Head of the New

Jersey State Police, and Colonel Dintino and Officer Fuentes. Plaintiff alleges the State of New

Jersey, by and through its Attorney General and the Head of the New Jersey State Police,

whose duty it is to enforce Regulations, Policies, New Jersey

statutory law that pertains to citizens . . . , failed to protect Plaintiff’s

‘minimal procedural due process’ rights by the use of insufficient

mechanisms that did not protect the liberty interest of Plaintiff and

should have been prevented by issuing implementing Regulations.

(Am. Compl. ¶ 25.) Plaintiff alleges the Defendants violated his procedural due process rights

“because the procedures that were used in prosecuting Plaintiff ignored the Directives, Policies,

and statutes of the state of New Jersey[] and were insufficient to safeguard requirements to secure

Plaintiff’s ‘minimal due process.’” (Am. Compl. ¶ 24.) Plaintiff also alleges Defendants Dintino

and Fuentes failed to “recognize the actions of their subordinate police officers, whose duty it is

to oversee each and every action of the officers” who violated Plaintiff’s substantive and

procedural due process rights. (Am. Compl. ¶ 26.) Plaintiff is arguing the State of New Jersey, the

Attorney General for the State of New Jersey and the Head of the New Jersey State Police should

be liable because the policies and procedures in place were inadequate to protect Plaintiff’s due

process rights. Plaintiff is also alleging Defendants Dintino and Fuentes are liable based on action

of their subordinates.

First, as explained above, claims under § 1983 are “governed by the applicable state’s

statute of limitations,” and therefore, Plaintiff’s supervisory liability claims, which arose in New

Jersey, are also subject to a two-year limitations period. Dique, 603 F.3d at 185. Claims arising

under § 1983 accrue “when the plaintiff knows or has reason to know of the injury which is the

basis for a section 1983 action.” Ozoroski v. Maue, 460 F. App’x 94, 97 (3d Cir. 2012). As

discussed at length above and in the Court’s prior Opinion all of the facts Plaintiff alleges in

support of his claims that there were no proper regulations or policies, including his alleged illegal

search and seizure, false arrest, and selective enforcement, all occurred more than twenty years

before the filing of Plaintiff’s initial complaint. Therefore, Plaintiff’s supervisory liability claims

are time barred and subject to dismissal. The Amended Complaint does not demonstrate any basis

for the Court to equitably toll the limitations period. Therefore, the supervisory liability claims

against the State of New Jersey, the Attorney General of the State of New Jersey, the Head of the

New Jersey State Police, and Colonel Dintine and Officer Fuentes are dismissed without prejudice.

Even without the time bar issues, the Court additionally finds these Defendants are immune

from suit under § 1983 and must be dismissed with prejudice as such. See, e.g., Walker v. Beard,

244 Fed. App’x 439, 440 (3d Cir. 2007). Neither a state, nor its officials are “persons” for the

purposes of § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64, 109 S. Ct. 2304, 105

L.Ed.2d 45 (1989); Dorsett v. N.J. State Police, No. 04–5652, 2007 WL 556890, at *2–3 (D.N.J.

Feb. 15, 2007). Further, “[i]t is well settled that the New Jersey State Police is an arm of the state

and thus not a person within the meaning of § 1983.” Gonzalez v. Bobal, 2015 WL 1469776, at *3

(D.N.J. March 30, 2015). “Section 1983 provides a federal forum to remedy many deprivations of

civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a

State . . . . The Eleventh Amendment bars such suits unless the State has waived its immunity.”

Will, 491 U.S. at 66, 109 S. Ct. 2304. Defendants Dintino and Fuentes in their official capacity are

also not persons for the purpose of § 1983. In Will, the Supreme Court held that state actors in their

official capacities are not persons who may be sued under § 1983, stating, “a suit against a state

official in his or her official capacity is not a suit against the official but rather is a suit against the

official's office . . . . As such, it is no different from a suit against the State itself.” Smith v. New

Jersey, 908 F. Supp. 2d 560, 563-65 (D.N.J. 2012) (citing Will, 491 U.S. at 71) (internal citation

omitted). Since immunity has not been waived here, and neither states nor their officials are subject

to liability under § 1983, Plaintiff's constitutional claims against the State of New Jersey, the

Attorney General of the State of New Jersey, the Head of the New Jersey State Police and

Defendants Dintino and Fuentes in their official capacities are dismissed with prejudice.

Additionally, Plaintiff may not base his claims against the Attorney General, the Head of

the New Jersey State Police, or Defendants Dintino and Fuentes in their personal capacities strictly

on a theory of respondeat superior. See Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 222 (3d

Cir. 2015). Supervisory liability generally requires some affirmative conduct by the supervisor,

such as a supervisor's implementation or maintenance of a policy, practice, or custom that caused

the plaintiff constitutional harm. Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016); Santiago

v. Warminster Township, 629 F.3d 121, 129 n.5 (3d Cir. 2010). Hence, there are two potential

theories of supervisory liability. See A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372

F.3d 572, 586 (3d Cir. 2004). Under the first theory, defendants may be sued as policy makers “if

it is shown that such defendants, ‘with deliberate indifference to the consequences, established and

maintained a policy, custom, or practice which directly caused [the] constitutional harm.’” Id.

(quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). The second

theory of liability provides that a supervisor may be personally liable under § 1983 if he or she

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. See Baker v. Monroe

Township, 50 F.3d 1186, 1190–91 (3d Cir. 1995). Knowledge in a “failure to supervise” claim

must consist of either “contemporaneous knowledge of the offending incident or knowledge of a

prior pattern of similar incidents.” C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 202 (3d Cir. 2000).

Plaintiff is asserting a policy-maker theory of supervisory liability against the State of New

Jersey, the Attorney General and the Head of the New Jersey State Police. Plaintiff alleges the

regulations and policies in place were “insufficient to safeguard requirements to secure Plaintiff’s

‘minimal due process’ rights.” (Am. Compl. ¶ 24.) He argues the Defendants failed to implement

regulations to prevent violations of procedural due process. (Id.) Plaintiff claims regulations were

implemented “only after widespread systemic racial profiling had risen to the point of violating an

inordinate number of rights of citizens and/or legal aliens in the state of New Jersey.” (Am. Compl.

¶ 25.) Under a policy-maker theory, a person who has final policy-making authority may be liable

under § 1983 if that person establishes a policy that is unconstitutional and that injures the plaintiff.

Chavarriaga, 806 F.3d at 223; Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). “[T]o

establish a claim against a policy maker under § 1983 a plaintiff must allege and prove that the

official established or enforced policies and practices directly causing the constitutional violation.”

Chavarriaga, 806 F.3d at 223. Alternatively, “[a] course of conduct is considered to be a custom

when, though not authorized by law, such practices of state officials are so permanent and well-

settled as to virtually constitute law.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d

Cir. 1990), superseded in part by statute on other grounds, Civil Rights Act of 1991, Pub. L. No.

102-166, 105 Stat. 1072; see also Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996).

Plaintiff’s Amended Complaint fails to plead a claim of supervisory liability against the

State of New Jersey, the Attorney General or the Head of the New Jersey State Police. Plaintiff

does not allege these Defendants implemented any policy. Additionally, Plaintiff alleges no facts

to support a conclusion that the Defendants were aware of any custom. Plaintiff makes conclusory

statements without asserting any facts which would support personal involvement on the part of

these Defendants in a policy or custom. Plaintiff’s vague claims of the failure to implement

appropriate policy or regulations, without more, are insufficient to state a claim under § 1983

against the State of New Jersey, the Attorney General or the Head of the New Jersey State Police.

As such, Plaintiff’s supervisory liability claims against these Defendants are dismissed without

prejudice.

Regarding Defendants Dintino and Fuentes, Plaintiff alleges they failed to recognize the

actions of their subordinate police officers. Plaintiff is attempting to hold them liable strictly based

on their supervisory status. As explained, above supervisory liability generally requires some

affirmative conduct by the supervisor. Parkell, 833 F.3d at 330. Plaintiff does not state specific

facts regarding Defendants Dintino and Fuentes personal involvement or affirmative conduct as

supervisors. Plaintiff makes a conclusory argument that the Defendants “had a duty [] to oversee

each and every action of the officers.” (Am. Compl. ¶ 26(b).) Without more, Plaintiff has failed to

state a claim under § 1983 against Defendants Dintino and Fuentes. Accordingly, Plaintiff’s

supervisory liability claim against Defendants Dintino and Fuentes is dismissed without prejudice.

IV. CONCLUSION

For the reasons stated above, the Amended Complaint is dismissed without prejudice in its

entirety pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A for failure to state a claim upon which

relief may be granted.2 Because it is conceivable Plaintiff may be able to supplement his pleading

with facts sufficient to overcome the deficiencies noted herein, Plaintiff is granted leave to move

to re-open this case and to file a proposed amended complaint. An appropriate order follows.

Dated: August 31, 2021

/s/Brian R. Martinotti

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE

2 Because the Court dismissed all federal claims, the Court declines to exercise supplemental

jurisdiction over any potential state law claim Plaintiff may have been attempting to bring. See

U.S.C. § 1367(c)(3) ( a district court may decline to exercise supplemental jurisdiction over a claim

if the court “has dismissed all claims over which it has original jurisdiction.”)