WIERZBICKI v. CITY OF JERSEY CITY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

MIROSLAW WIERZBICKI,

Plaintiff,

v.

Case No. 2:19-cv-17721 (BRM) (ESK)

CITY OF JERSEY CITY, et al.,

Defendants. OPINION

MARTINOTTI, DISTRICT JUDGE

Before this Court is a Motion to Dismiss filed by Defendants City of Jersey City (“JC”),

Jersey City Police Department (“JCPD”), Ameer Alateek (“Alateek”), Humberto Portuondo

(“Portuondo”), and Joseph Larkins (“Larkins”) (collectively, “Defendants”) seeking to dismiss

Plaintiff Miroslaw Wierzbicki’s (“Wierzbicki”) Second Amended Complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6). (ECF No. 40.) Wierzbicki opposed the motion. (ECF No. 41.)

Defendants replied. (ECF No. 42.) Having reviewed the submissions filed in connection with the

motion and having declined to hold oral argument pursuant to Federal Rule of Civil Procedure

78(b), for the reasons set forth below and for good cause appearing, Defendants’ Motion to Dismiss

is GRANTED in part and DENIED in part.

I. BACKGROUND

For the purposes of this Motion to Dismiss, the Court “accept[s] as true all factual

allegations in the [Second Amended Complaint] and draw all inferences from the facts alleged in

the light most favorable to” Wierzbicki. Phillips v. Cty. of Allegheny, 515 F.3d 224, 228 (3d Cir.

2008) (citing Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003)). Furthermore,

the Court also considers any “document integral to or explicitly relied upon in the complaint.” In

re Burlington Coat Factory Secs. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (citing Shaw v. Dig.

Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996)).

The factual details of this dispute are explained in this Court’s Opinion dated May 7, 2021

(the “May Opinion”) (ECF No. 15),1 which the Court incorporates by reference. The dispute stems

from an alleged incident that occurred on September 8, 2017, at around 12 pm (the “Incident”), in

which several police officers injured Wierzbicki, who was riding his bicycle on Martin Luther

King Boulevard in Jersey City, New Jersey. (Id. at 2.) The May Opinion dismissed Wierzbicki’s

original Complaint without prejudice. (Id. at 1.)

On January 26, 2021, Wierzbicki filed the Second Amended Complaint, asserting claims

under: (1) 42 U.S.C. § 1983 against Jersey City Police Officers Alateek, Portuondo, and Larkins

(collectively, the “Officer Defendants”) in Count I, against JC in Count II, and against JCPD in

Count III; (2) 42 U.S.C. § 1985 in Count IV;2 (3) 42 U.S.C. § 1986 in Count V; (4) the New Jersey

Constitution and the New Jersey Civil Rights Act (“NJCRA”), N.J. Stat. Ann. § 10:6-1 et seq.,

1 Wierzbicki v. City of Jersey City, No. 19-17721, 2020 U.S. Dist. LEXIS 80421 (D.N.J. May 7,

2020).

2 Wierzbicki bases his § 1985 claim on Defendants’ alleged “conspiracy to violate the civil rights

of [Wierzbicki] based on his race, ethnicity, national origin, or other unlawful basis.” (ECF No. 34

¶ 75.) Therefore, the Court construes this claim as brought under § 1985(3), which “applies only

to discrimination based on ‘characteristics—i.e. race, national origin or gender—which are

traditionally part and parcel of discrete and insular minorities.’” Biase v. Kaplan, 852 F. Supp.

268, 290 (D.N.J. 1994) (quoting Hicks v. Resolution Tr. Corp., 970 F.2d 378, 382 (7th Cir. 1992)).

The other two subsections of § 1985 do not apply here. “Section 1985(1) prohibits preventing an

officer of the United States from performing official duties.” Reid v. Schuster, Civ. A. No. 05-

3838, 2008 U.S. Dist. LEXIS 22113, 27 n.12 (D.N.J. Mar. 18, 2008). Section 1985(2) “applies

only to conspiracies to prevent witnesses from appearing in federal courts.” Voth v. Hoffman, Civ.

A. No. 14-7582, 2016 U.S. Dist. LEXIS 57289, at *29 (D.N.J. Apr. 28, 2016) (quoting Grant v.

Abbott House, Civ. A. No. 14-8703, 2016 U.S. Dist. LEXIS 21195, at *16 (S.D.N.Y. Feb. 22,

2016)).

against all Defendants in Count VI and against JC in Count VII; (5) New Jersey common law for

assault and battery in Count VIII; (6) New Jersey common law for intentional infliction of

emotional distress in Count IX; and (7) New Jersey common law for negligent hiring, supervision,

and retention against JC and JCPD in Count X. (ECF No. 34.) On April 28, 2021, Defendants filed

a Motion to Dismiss the Second Amended Complaint pursuant to Federal Rule of Civil Procedure

12(b)(6). (ECF No. 40.) Wierzbicki opposed the motion (ECF No. 41), and Defendants replied

(ECF No. 42).

II. LEGAL STANDARD

“[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).

However, the 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.”

Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A court is “not bound to accept as true a

legal conclusion couched as a factual allegation.” Papasan, 478 U.S. at 286 (citations omitted).

Instead, assuming the factual allegations in the complaint are true, those “[f]actual allegations must

be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing

5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp 235–36 (3d ed. 2004)).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when

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

liable for misconduct alleged.” Id. This “plausibility standard” requires the complaint to allege

“more than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a

probability requirement.” Id. (quoting Twombly, 550 U.S. at 556). “Detailed factual allegations”

are not required, but “more than an unadorned, the defendant-harmed-me accusation” must be

pled; it must include “further factual enhancement” and not just conclusory statements or a

recitation of the elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555, 557).

“Determining whether a complaint states a plausible claim for relief [is] . . . a context-

specific task that requires the reviewing court to draw on its judicial experience and common

sense.” Id. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the

pleader is entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). However, courts are “not

compelled to accept ‘unsupported conclusions and unwarranted inferences,’” Baraka v.

McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (quoting Schuylkill Energy Res. Inc. v. Pa. Power

& Light Co., 113 F.3d 405, 417 (3d Cir. 1997)), nor “a legal conclusion couched as a factual

allegation.” Papasan, 478 U.S. at 286 (citations omitted).

While, as a general rule, the court may not consider anything beyond the four corners of

the complaint on a motion to dismiss pursuant to Rule 12(b)(6), the Third Circuit has held that “a

court may consider certain narrowly defined types of material without converting the motion to

dismiss to a summary judgment motion, including items that are integral to or explicitly relied

upon in the complaint.” Coulter v. Doerr, 486 F. App’x 227, 228 (3d Cir. 2012) (citing In re

Rockefeller Ctr. Props. Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999)).

III. DECISION

As a threshold matter, the Court finds a separate analysis for some of Wierzbicki’s state

claims could be unnecessary. First, the NJCRA “mirrors § 1983 and ‘creates a private cause of

action for violations of civil rights secured under the New Jersey Constitution.’” Conte v. Goodwin,

Civ. A. No. 19-8333, 2021 U.S. Dist. LEXIS 8618, at *29 (D.N.J. Jan. 15, 2021) (citations

omitted). “The analysis under § 1983 for alleged violations of the United States Constitution is the

same as the analysis under the NJCRA for alleged violations of the New Jersey Constitution.”

Panarello v. City of Vineland, 160 F. Supp. 3d 734, 747 (D.N.J. 2016) (citations omitted).

Therefore, “the Court’s analysis on the § 1983 claims applies to plaintiff’s claims under the

NJCRA.” Monroe v. City of Hoboken, Civ. A. No. 11-2556, 2012 U.S. Dist. LEXIS 50096, at *31

(D.N.J. Apr. 10, 2012). Second, “because [§] 1986 is expressly conditioned upon the existence of

a [§] 1985 conspiracy which is about to occur,” “[t]he failure to establish any right to relief under

42 U.S.C. § 1985 justifies the dismissal of the dependent cause of action under 42 U.S.C. § 1986.”

Perry v. Bernardin, Civ. A. No. 04-6102, 2005 U.S. Dist. LEXIS 18115, at *20 (D.N.J. Aug. 18,

2005) (citations omitted). Third, a “plaintiff’s claims under 42 U.S.C. §§ 1985(3) and 1986 depend

on the success of [his] claim under [§] 1983.” Reynolds v. Atl. City Convention Ctr. Auth., Civ. A.

No. 88-4232, 1990 U.S. Dist. LEXIS 17016, at *57–58 (D.N.J. May 21, 1990); see also Nanya-

Nashut ex rel. Hand v. Centex Home Equity Corp., Civ. A. No. 03-3661, 2003 U.S. Dist. LEXIS

25174, at *7 (E.D. Pa. Dec. 1, 2003) (“[T]he absence of a section 1983 deprivation of rights

precludes a section 1985 conspiracy claim predicated on the same allegations. . . . Without a

properly pled claim under § 1985, a plaintiff cannot bring a § 1986 claim.” (citations omitted)).

Therefore, if Wierzbicki’s § 1983 claim against a Defendant is inviable, his § 1985, § 1986, and

NJCRA claims against that Defendant must also fail. Moreover, if Wierzbicki’s § 1985 claim

against a Defendant is inviable, his § 1986 claim against that Defendant must also fail.

A. Wierzbicki’s Claims Against JCPD Are Inviable

Defendants maintain JCPD has no independent existence as an entity that can sue or be

sued. (ECF No. 40-1 at 23.) Defendants argue JCPD must be dismissed as a defendant, because a

suit against the police department should be regarded as a suit against JC. (Id.) The Court agrees.

“A police department, and similarly a unit within a police department, are not proper parties

to a § 1983 action because they are merely sub-units of government that are not distinct from the

municipality of which they are a part.” McIntosh v. Atl. City Police Dep’t, Civ. A. No. 19-9889,

2019 U.S. Dist. LEXIS 175938, at *4–5 (D.N.J. Oct. 10, 2019) (citing Jackson v. City of Erie

Police Dep’t, 570 F. App’x 112, 114 n.2 (3d Cir. 2014)); see also McGovern v. City of Jersey City,

Civ. A. No. 98-5186, 2005 U.S. Dist. LEXIS 38644, at *23 n.4 (D.N.J. Dec. 29, 2005) (“In Section

1983 actions, police departments cannot be sued in conjunction with municipalities, because the

police department is merely an administrative arm of the local municipality, and is not a separate

judicial entity.” (quoting DeBellis v. Kulp, 166 F. Supp. 2d 255, 264 (E.D. Pa. 2001))). Here, JC

is already a Defendant for Wierzbicki’s § 1983, § 1985, § 1986, and NJCRA claims. Therefore, as

a matter of law, Wierzbicki should not separately assert such claims against JCPD. Accordingly,

Counts IV, V, VI, VIII, IX, and X against JCPD, as well as Count III will be dismissed with

prejudice, and no leave to amend is warranted. Berroa v. United States, Civ. A. No. 13-4789, 2018

U.S. Dist. LEXIS 109038, at *3 (D.N.J. June 29, 2018) (citing Ryan v. Collucio, 183 F.R.D. 420,

423 (D.N.J. 1998)) (“If the causes of action in the proposed amended complaint fail as a matter of

law, leave to amend should be denied as futile.”).

B. Wierzbicki’s Claims Against JC Are Inviable

1. The § 1983, § 1985, § 1986, and NJCRA Claims

Defendants maintain Wierzbicki’s claims against JC can only survive on a Monell theory

of liability: a municipality cannot be held liable for the unconstitutional acts of its employees on a

theory of respondeat superior, unless its policy or custom is unconstitutional or is the moving force

behind the constitutional violation of its employees. (ECF No. 40-1 at 12–13 (citing Monell v.

N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658 (1978)).) Defendants argue Wierzbicki’s allegations that

JC’s policy, custom or practice caused the underlying violations are conclusory and lack the

necessary factual support. (Id. at 14.) Wierzbicki insists he has sufficiently alleged facts regarding

JC’s policies or customs exhibiting deliberate indifference to the constitutional rights of

individuals. (ECF No. 41 at 14.) Wierzbicki claims the relevant factual information, which is in

JC’s control, could have been revealed by his Open Public Records Act (“OPRA”) request. (Id. at

13–14.) Wierzbicki suggests the production of information from the OPRA request was deficient,

which demonstrates the need for meaningful discovery to reveal facts concerning JC’s policies or

customs. (Id.) The Court disagrees.

The May Opinion already held Monell requires Wierzbicki to “allege a policy, custom, or

practice which causes the underlying constitutional violations,” for his § 1983, § 1985, § 1986,

and NJCRA claims against JC. (ECF No. 15 at 4–5.) The May Opinion found Wierzbicki’s original

Complaint failed to sufficiently allege a policy, custom, or practice of JC under Monell, because

its “allegations [we]re completely conclusory.” (Id. at 5.) Compared with the Complaint, the

Second Amended Complaint does not allege any new facts regarding JC’s policies, customs, or

practices. (See ECF No. 1 ¶¶ 29–36; ECF No. 34 ¶¶ 41–49.) Therefore, the Court has no reason to

find the Second Amended Complaint satisfies Monell.

As for the OPRA request, Wierzbicki does not argue it has produced any information

regarding JC’s policy, custom, or practice. Wierzbicki only indicates the request failed to produce

certain information that he had expected (ECF No. 41 at 13–14), but this does not constitute

positive evidence of JC’s policy, custom, or practice. Also, Wierzbicki does not point to any error

in the OPRA process that would make the information it produced unreliable. Therefore, the

alleged deficient production in response to Wierzbicki’s OPRA request could only weaken

Wierzbicki’s position, because the absence of a record of a regularly conducted activity may be

“admitted to prove that the matter did not occur or exist” when “the opponent does not show that

the possible source of the information or other circumstances indicate a lack of trustworthiness.”

Fed. R. Evid. 803(7).

Accordingly, the Court finds Wierzbicki again fails to sufficiently allege an actionable

policy, custom, or practice of JC under Monell. As a result, Counts IV, V, and VI against JC, as

well as Count II, will be dismissed with prejudice, and no leave to amend is warranted. See TBI

Unlimited, LLC v. Clear Cut Lawn Decisions, LLC, Civ. A. No. 12-3355, 2014 U.S. Dist. LEXIS

107756, at *25 (D.N.J. Aug. 5, 2014) (“[T]he [c]ourt has already afforded [the plaintiff] the

opportunity to amend its [complaint], yet the [a]mended [complaint] suffer[s] from many of the

same pleading deficiencies previously identified by the [c]ourt in the [earlier] [o]pinion.

Accordingly, the [c]ourt declines to allow [the plaintiff] to amend a second time.”).

2. The Intentional Tort Claims

Defendants contend Wierzbicki’s intentional tort claims in Counts VIII and IX should be

dismissed as to JC, because a public entity cannot be held liable under a theory of respondeat

superior for the intentional conduct of its employees, which is outside the scope of their

employment. (ECF No. 40-1 at 16, 18.) Wierzbicki argues, under N.J. Stat. Ann. § 59:2-2(a), JC

can be found liable for its employees’ conduct that falls within the scope of their employment,

based on a theory of respondeat superior. (ECF No. 41 at 15–16.) Wierzbicki states the Officer

Defendants were acting within the scope of their employment in the Incident. (Id. at 17.) The Court

disagrees.

“A public entity is liable for injury proximately caused by an act or omission of a public

employee within the scope of his employment in the same manner and to the same extent as a

private individual under like circumstances.” N.J. Stat. Ann. § 59:2-2(a). “However, an exception

exists for public entities where the act or omission of the employee constitutes ‘a crime, actual

fraud, actual malice, or willful misconduct.’” Hickman v. Freehold Borough, Civ. A. No. 15-3578,

2017 U.S. Dist. LEXIS 48565, at *45 (D.N.J. Mar. 31, 2017) (quoting N.J. Stat. Ann. § 59:2-10);

see also Cruz v. N.J. Dep’t of Corr., Civ. A. No. 15-8813, 2016 U.S. Dist. LEXIS 61437, at *3

(D.N.J. May 9, 2016) (recognizing § 59:2-10 as “an exception” to “the general concept of vicarious

liability” adopted in § 59:2-2(a) (quoting Hoag v. Brown, 935 A.2d 1218, 1230 (N.J. Super. Ct.

App. Div. 2007))). “[T]his § 59:2-10 immunity applies to intentional torts.” Abdallah v. City of

Paterson, Civ. A. No. 16-4660, 2017 U.S. Dist. LEXIS 82135, at *14 (D.N.J. May 26, 2017)

(citing Hoag, 935 A.2d at 1230); see also Lozano v. New Jersey, Civ. A. No. 17-6581, 2020 U.S.

Dist. LEXIS 115320, at *36 n.14 (D.N.J. June 29, 2020) (“A long line of cases is in accord as to

the dismissal of respondeat superior claims against municipalities based on their employees’

commission of intentional torts.” (citations omitted)). Therefore, even if an employee committed

an intentional tort within the scope of his or her employment, the municipal employer should not

be held vicariously liable. See Conte, 2021 U.S. Dist. LEXIS 8618, at *29 (finding that the

municipal defendants “cannot be liable for [their employees’] actions” if the employees “were

acting with ‘actual fraud, actual malice, or willful misconduct,’” even though such “actions were

within the scope of their employment”).

Here, Wierzbicki asserts claims against JC for assault and battery in Count VIII and

intentional infliction of emotional distress in Count XI. It is undisputed that these are claims for

intentional torts. Therefore, Counts VIII and IX against JC are inviable as a matter of law and

warrant dismissal with prejudice. See Part III.A, supra.

3. The Negligent Hiring, Supervision, and Retention Claim

Wierzbicki maintains the alleged actions taken by the Officer Defendants were so shocking

and egregious in nature that they are indicative of the Officer Defendants’ propensity for violent

outbursts, which may have been discovered had JC properly supervised the Officer Defendants.

(ECF No. 41 at 22.) Wierzbicki claims he is entitled to discovery so that he may produce evidence

that JC negligently hired, supervised, and retained the Officer Defendants. (Id.) The Court

disagrees.

Under New Jersey law, “a municipality may be held liable for its negligence in hiring or

retaining an officer it knows to have dangerous propensities.” Shabazz v. N.B. Police Dep’t, Civ.

A. No. 13-1975, 2014 U.S. Dist. LEXIS 88157, at *57 (D.N.J. June 27, 2014) (citing Denis v. City

of Newark, 704 A.2d 1003, 1007–08 (N.J. Super. Ct. App. Div. 1998)). “[T]he tort of negligent

hiring has as its constituent elements two fundamental requirements.” Di Cosala v. Kay, 450 A.2d

508, 516 (N.J. 1982). “The first involves the knowledge of the employer and foreseeability of harm

to third persons.” Id.

An employer will only be held responsible for the torts of its

employees beyond the scope of the employment where it knew or

had reason to know of the particular unfitness, incompetence or

dangerous attributes of the employee and could reasonably have

foreseen that such qualities created a risk of harm to other persons.

Id. (citations omitted). “The second required showing is that, through the negligence of the

employer in hiring the employee, the latter’s incompetence, unfitness or dangerous characteristics

proximately caused the injury.” Id. (citing Hathcock v. Mitchell, 173 So.2d 576, 584 (Ala. 1965)).

“To be found liable for negligent supervision or training, the plaintiff must satisfy what is

essentially the same standard, but framed in terms of supervision or training.” G.A.-H. v. K.G.G.,

210 A.3d 907, 916 (N.J. 2019) (citing id.).

Therefore, for JC’s alleged negligence in hiring, retaining, or supervising the Officer

Defendants to be actionable, it must have caused Wierzbicki’s injuries in the Incident. Also, JC’s

actual or constructive knowledge of the Officer Defendants’ dangerous propensities, if any, are

relevant in that it allows JC to foresee the risk of harm to Wierzbicki. See Di Cosala, 450 A.2d at

518 (“[T]he question presented is whether the employer, knowing of its employee’s unfitness,

incompetence or dangerous attributes when it hired or retained its employee, should have

reasonably foreseen the likelihood that the employee through his employment would . . . create a

risk of danger to [the public] because of the employee’s qualities.”). In other words, Wierzbicki

must show JC’s negligence and actual or constructive knowledge occurred before the Incident. See

Denis, 704 A.2d at 1007–08 (finding that the municipal defendant “knew or should have known

of [the police officer’s] dangerous propensities,” because the police officer’s “personnel file”

recorded two incidents where he “was disciplined for assaultive behavior on defenseless citizens”

that “predated the assault in this case” and nine instances where he was “suspended . . . for violating

police regulations between 1985 and 1995”). Importantly, JC’s alleged negligence or knowledge

cannot be based on what happened in the Incident. After all, “[f]oresight, not hindsight, is the

standard by which one’s duty of care is to be judged.” Lingar v. Live-In Companions, Inc., 692

A.2d 61, 65 (N.J. Super. Ct. App. Div. 1997) (citations omitted). Because the Second Amended

Complaint alleges no facts that suggest JC had actual or constructive knowledge of the Officer

Defendants’ dangerous propensities before the Incident, Wierzbicki’s claim for negligent hiring,

supervision, and retention is inviable.

Even if Wierzbicki invokes res ipsa loquitur to establish JC’s negligence, his factual

allegations are insufficient. “Res ipsa loquitur is a doctrine fashioned for limited application in

special situations.” Smallwood v. Mitchell, 624 A.2d 623, 625 (N.J. Super. Ct. App. Div. 1993)

(citing Good-year Tire & Rubber v. Hughes Supply, Inc., 358 So.2d 1339, 1341 (Fla. 1978)). “The

doctrine of res ipsa loquitur applies when it is reasonable to say that, under the circumstances, the

injury to the plaintiff would not have occurred in the absence of the defendant’s negligence.”

Sanzari v. Rosenfeld, 167 A.2d 625, 631 (N.J. 1961) (citations omitted). “In res ipsa cases, [the]

plaintiff need only prove his injury, and need not prove a standard of care or a specific act or

omission.” Id. “To assert res ipsa loquitur, [the plaintiff] must plead that: (1) the occurrence itself

ordinarily bespeaks negligence; (2) the instrumentality was within [the defendant’s] exclusive

control; and (3) there is no indication that the injury was the result of [p]laintiff’s own voluntary

act or negligence.” Geiss v. Target Corp., Civ. A. No. 09-2208, 2011 U.S. Dist. LEXIS 84710, at

*11 n.3 (D.N.J. Aug. 2, 2011) (citing Buckelew v. Grossbard, 435 A.2d 1150, 1159 (N.J. 1981)).

Here, Wierzbicki only asserts the Officer Defendants’ “dangerous attribute may have been

discovered had [JC or JCPD] properly supervised [the Officer] Defendants.” (ECF No. 41 at 22

(emphasis added).) Even if the Incident represents a special situation where the res ipsa loquitur

doctrine is applicable, Wierzbicki’s assertion is insufficient for triggering the doctrine, because he

fails to indicate the Officer Defendants’ accused actions in the Incident and the like ordinarily

bespeak negligence on JC’s part. Therefore, Count X against JC warrants dismissal.

Nevertheless, the dismissal is without prejudice. Wierzbicki’s claim for negligent hiring,

supervision, and retention in the Seconded Amended Complaint is brought under New Jersey

common law. It was not addressed in the May Opinion, where Wierzbicki’s only negligence claim

was brought under § 1983. (ECF No. 1 ¶¶ 57–59.) The May Opinion dismissed the § 1983

negligence claim for failing to adequately allege a policy, practice, or custom under Monell. (ECF

No. 15 at 5.) Here, Wierzbicki’s common law negligence claim is not governed by Monell and is

dismissed for different reasons of pleading deficiency. As a result, the Court grants Wierzbicki an

opportunity to amend Count X.

4. Count VII Is Duplicative of Count VI and Dismissed with Prejudice

Wierzbicki’s Count VII is brought under the same laws and based on the same factual

allegations as Count VI; the only difference between the two counts is that Count VII is asserted

against JC, while Count VI is asserted against all Defendants. (See ECF No. 34 ¶¶ 81–87.) In other

words, the resolution of Count VII requires no separate analysis from Count VI, and Count VII is

not an independent cause of action but rather duplicative of Count VI. Therefore, Count VII will

be dismissed with prejudice. See Walker v. City of Newark, Civ. A. No. 19-16853, 2020 U.S. Dist.

LEXIS 115437, at *29 (D.N.J. July 1, 2020) (dismissing the portions of a count that “would

duplicate [another two counts] and would be subject to the same analysis”); Davis v. Yates, Civ.

A. No. 15-6943, 2020 U.S. Dist. LEXIS 17758, at *34 (D.N.J. Feb. 3, 2020) (“Since there is no

independent cause of action for ‘abuse of power,’ and the claim is premised upon the same

allegations and constitutional deprivations underlying Count I, I will dismiss Count II as

redundant.” (citing Janowski v. City of N. Wildwood, 259 F. Supp. 3d 113, 132 (D.N.J. 2017))).

C. Some of Wierzbicki’s Claims Against the Officer Defendants Are Inviable

Wierzbicki identifies three officers at the scene and on the date of the Incident: two officers,

Alateek and Portuondo, were the first to appear; the third one, Larkins, arrived after Alateek and

Portuondo. (ECF No. 41 at 21.) Wierzbicki claims the Officer Defendants conducted an illegal

search and seizure of Wierzbicki’s person and in doing so used excessive force against him. (Id.

at 7.) Wierzbicki insists his allegations against the Officer Defendants are sufficient to meet the

plausibility standard. (Id. at 21.)

Defendants argue Wierzbicki cannot prove individual liabilities of the Officer Defendants,

who are not shown to be present at the scene at the time of the Incident. (ECF No. 40-1 at 22.)

Defendants state Wierzbicki has not identified which Officer Defendant actually used excessive

force or shown any wrongdoing by Larkins. (Id.; ECF No. 42 at 2.) Defendants contend

Wierzbicki’s OPRA request only produced a CAD ticket that shows the Officer Defendants were

present at the location of the Incident during a three-hour window; because many different persons

lived and traveled around that location, the CAD ticket cannot indicate the Officer Defendants

interacted with Wierzbicki. (ECF No. 42 at 2.) Defendants also challenge the reliability of

Wierzbicki’s factual allegations, by pointing out: (1) Wierzbicki alleges the third officer who

arrived on the scene acted as a Polish translator for him, but Larkins, the alleged third officer,

could not speak Polish; (2) the officers identified in the CAD ticket were in plainclothes and

operating unmarked vehicles, but Wierzbicki alleges the Officer Defendants were uniformed and

operating police vehicles at the Incident; and (3) the CAD ticket indicates the three officers were

present in the location for just seven minutes, which is well below the time needed to commit the

accused actions done to Wierzbicki, including knocking off, detaining, handcuffing, searching and

calling for a Polish translator. (Id. at 3–4.) Defendants request dismissal of all of Wierzbicki’s

claims against the Officer Defendants. (ECF No. 40-1 at 23.)

The Court disagrees with Defendants’ suggestion that Wierzbicki must prove the Officer

Defendants’ individual liabilities at this stage. “Under the liberal federal pleading rules, it is not

necessary to plead evidence, and it is not necessary to plead all the facts that serve as a basis for

the claim.” Mendez v. Shah, 94 F. Supp. 3d 633, 636 (D.N.J. 2015) (citing Bogosian v. Gulf Oil

Corp., 561 F.2d 434, 446 (3d Cir. 1977)). At this stage, a plaintiff need not “set forth an intricately

detailed description of the asserted basis for relief.” Id. (quoting Baldwin Cty. Welcome Ctr. v.

Brown, 466 U.S. 147, 149–50 n.3 (1984)). “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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Therefore,

at this stage, Wierzbicki need not present evidence to prove the Officer Defendants’ involvement

in the Incident; it is sufficient that Wierzbicki’s factual allegations raise a reasonable inference of

the Officer Defendants’ liabilities. See Rife v. Borough of Dauphin, 625 F. Supp. 2d 212, 221 (M.D.

Pa. 2008) (“Plaintiff . . . need not establish nor prove nor demonstrate anything at the pleading

stage. Plaintiff need allege sufficient facts to place the [d]efendants on notice.” (citing Twombly,

550 U.S. at 555)).

1. The § 1983 and NJCRA Claims Against Larkins Are Inviable

“Section 1983 claims for excessive force arising ‘in the context of an arrest or investigatory

stop of a free citizen’ are most properly analyzed under the Fourth Amendment’s guarantee that

individuals be free from ‘unreasonable searches and seizures.’” Lopez v. City of Plainfield, Civ.

A. No. 12-4976, 2017 U.S. Dist. LEXIS 10220, at *25 (D.N.J. Jan. 25, 2017) (quoting Graham v.

Connor, 490 U.S. 386, 394 (1989)). “To establish a claim of excessive force under the Fourth

Amendment, a plaintiff must demonstrate that, under the totality of the circumstances, the officer’s

actions were not objectively reasonable in light of the facts and circumstances confronting the

officer.” Id. (citing Graham, 490 U.S. at 394). “The ‘reasonableness’ of a particular use of force

must be judged from the perspective of a reasonable officer on the scene.” Graham, 490 U.S. at

396 (citing Terry v. Ohio, 392 U.S. 1, 20–22 (1968)). “[P]ermanent or serious injury is” relevant,

though not required or dispositive, “in an excessive force claim under § 1983.” Antoine v. Rucker,

Civ. A. No. 03-3738, 2006 U.S. Dist. LEXIS 46824, at *32 (D.N.J. July 11, 2006) (citing Molton

v Cleveland, 839 F.2d 240 (6th Cir. 1988)). “[T]he issue of whether excessive force was employed

must be left to the trier of fact.” Kopec v. Tate, 361 F.3d 772, 778 n.7 (3d Cir. 2004).

Here, the Second Amended Complaint has alleged affirmative actions that may constitute

excessive force used in a search and seizure of Wierzbicki. Alateek and Portuondo are alleged to

have (1) “violently shoved [Wierzbicki] off of his bicycle causing [him] to fall to the ground,” (2)

handcuffed Wierzbicki “[d]espite [his] obvious and immediate injuries including a swollen wrist,”

and then (3) “search[ed] [his] pockets, backpack, and cellular telephone cover and wallet.” (ECF

No. 34 ¶¶ 18, 20–21.) Wierzbicki claims he never resisted and was not given any explanation from

the Officer Defendants for their alleged actions. (Id. ¶¶ 27, 36.) The Second Amended Complaint

also describes the physical and mental injuries that Wierzbicki sustained due to the Incident,

including “a fractured right wrist” and permanent “mental and emotional trauma.” (Id. ¶¶ 37–38,

40.) These allegations raise a reasonable inference that Alateek and Portuondo used excessive

force against Wierzbicki. Therefore, Wierzbicki’s § 1983 and NJCRA claims against Alateek and

Portuondo are viable.

Wierzbicki need not identify which one of Alateek and Portuondo actually used excessive

force against him. “[E]ven if [Wierzbicki] is ultimately able to show that both officers were present

but only one used excessive force, liability could attach to both because clearly, on [Wierzbicki’s]

version of facts, each officer had a reasonable opportunity to intervene to prevent the other from

using force against [Wierzbicki].” D’Arrigo v. Gloucester City, Civ. A. No. 04-5967, 2007 U.S.

Dist. LEXIS 44316, at *43 (D.N.J. June 19, 2007) (declining to grant summary judgment for the

defendants on the plaintiff’s Fourth Amendment claim for excessive force against two police

officers). After all, one defendant’s “knowledge and acquiescence of [other defendants’] use of

excessive force” is “sufficient to . . . hold [the first defendant] liable” for the plaintiff’s injury under

§ 1983. Adams v. Springmeyer, Civ. A. No. 11-790, 2012 U.S. Dist. LEXIS 71136, at *42 (W.D.

Pa. May 22, 2012) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1193–94 (3d Cir. 1995)); see also

Furina v. Gonzalez, Civ. A. No. 10-2043, 2011 U.S. Dist. LEXIS 95253, at *18 (D.N.J. Aug. 25,

2011) (“To establish liability under § 1983, it is essential that a [p]laintiff demonstrate a

defendant’s personal involvement in the alleged civil rights violation. Personal involvement may

be established through facts indicating a defendant’s ‘personal direction or actual knowledge and

acquiescence’ with respect to the alleged violation.” (citations omitted)).

Defendants’ challenges on the reliability of Wierzbicki’s factual allegations do not change

the conclusion. First, whether or not Larkins speaks Polish will not contradict the factual

allegations concerning Alateek and Portuondo’s use of excessive force. Second, the information

in the CAD ticket does not conflict with Wierzbicki’s descriptions of the Incident. The Second

Amended Complaint asserts the Officer Defendants “failed to file any report, statement, or the

like” regarding the Incident. (ECF No. 34 ¶ 32.) Accepting this assertion as true, the Court finds

Wierzbicki’s OPRA request is unlikely to produce any report on the Incident, which means the

information in the CAD ticket likely will not fully match with Wierzbicki’s descriptions.

Therefore, the CAD ticket is relevant here only to the extent it shows the Officer Defendants may

be present at the Incident’s location at the relevant time, thereby making their involvement in the

Incident plausible.

However, the Second Amended Complaint does not point to any affirmative action of

Larkins that may violate § 1983. Instead, only some inactions of Larkins are indicated: (1) “Despite

[Wierzbicki’s] obvious injuries, none of [the Officer Defendants] . . . called for an ambulance to

assist or treat [Wierzbicki];” (2) the Officer Defendants did not provide “any medical aid” to

Wierzbicki, when they knew Wierzbicki “was physically assaulted and injured” by Alateek and

Portuondo and “there were visible signs of injury;” and (3) the Officer Defendants “failed to file

any report, statement, or the like” regarding the Incident. (Id. ¶¶ 25–26, 32.) Though a defendant’s

inaction may trigger § 1983 liability, that inaction must have caused the plaintiff’s injury. Shaw by

Strain v. Strackhouse, 920 F.2d 1135, 1147 (3d Cir. 1990) (“Only those defendants whose

inactions or actions personally caused [a plaintiff’s] injury may be held liable under § 1983.”); see

also Bhimnathwala v. N.J. State Judiciary, Family Div., Civ. A. No. 19-21389, 2020 U.S. Dist.

LEXIS 231138, at *26 (D.N.J. Dec. 9, 2020) (dismissing the plaintiff’s § 1983 claim, when the

“[p]laintiff’s sole allegations against” the defendant was the defendant’s inactions, and the

“[p]laintiff fail[ed] to allege that [the defendant’s] inactions personally caused [p]laintiff’s

injuries” (citing Baraka, 481 F.3d at 210)). Here, Larkins allegedly arrived on the Incident’s scene

after Wierzbicki already sustained injury. (See ECF No. 34 ¶¶ 18–24.) Also, Wierzbicki does not

allege the Officer Defendants caused him any new injury after Larkins’ arrival. Therefore, Larkins’

alleged inactions did not cause Wierzbicki’s injury. As a result, Wierzbicki’s § 1983 and NJCRA

claims, i.e., Counts I and VI, against Larkins are inviable.

2. The § 1985 and § 1986 Claims Are Inviable

Because the § 1983 claim against Larkins is inviable, the § 1985 and § 1986 claims against

him must also fail. The Court only needs to analyze the viability of the § 1985 and § 1986 claims

against Alateek and Portuondo.

For a § 1985 claim “to survive a motion to dismiss,” the plaintiff must allege:

(1) a conspiracy; (2) motivated by a racial or class based

discriminatory animus designed to deprive, directly or indirectly,

any person or class of persons to the equal protection of the laws; (3)

an act in furtherance of the conspiracy; and (4) an injury to person

or property or the deprivation of any right or privilege of a citizen

of the United States.

Voth, 2016 U.S. Dist. LEXIS 57289, at *29–30 (quoting Lake v. Arnold, 112 F.3d 682, 685 (3d

Cir. 1997)). An allegation of conspiracy is insufficient when the plaintiff “fails to plead actual

agreement and concerted action sufficient to support any . . . form of conspiracy claim.” Steele v.

Pub. Def. Middlesex Cty., Civ. A. No. 19-412, 2021 U.S. Dist. LEXIS 127669, at *11 (D.N.J. July

8, 2021); see also Smith v. Lutheran, Civ. A. No. 20-174, 2020 U.S. Dist. LEXIS 191817, at *42

(E.D. Pa. Oct. 15, 2020) (“Bare conclusory allegations of ‘conspiracy’ or ‘concerted action’ will

not suffice to allege a conspiracy. The plaintiff must expressly allege an agreement or make

averments of communication, consultation, cooperation, or command from which such an

agreement can be inferred.” (citations omitted)); Falat v. Cty. of Hunterdon, Civ. A. No. 12-6804,

2014 U.S. Dist. LEXIS 163280, at *38 (D.N.J. Nov. 20, 2014) (“[T]o properly plead an

unconstitutional conspiracy, a plaintiff must assert facts from which a conspiratorial agreement

can be inferred. [A]n allegation of parallel conduct and a bare assertion of conspiracy will not

suffice.” (citations omitted)). “To plead conspiracy adequately, a plaintiff must set forth allegations

that address the period of the conspiracy, the object of the conspiracy, and the certain actions of

the alleged conspirators taken to achieve that purpose.” Campbell v. Gibb, Civ. A. No. 10-6584,

2012 U.S. Dist. LEXIS 23363, at *25 (D.N.J. Feb. 21, 2012) (quoting Shearin v. E.F. Hutton Grp.,

Inc., 885 F.2d 1162, 1166 (3d Cir. 1989)).

Here, Wierzbicki bases his § 1985 claim on Defendants’ “conspiracy to violate the civil

rights of [Wierzbicki] based on his race, ethnicity, national origin, or other unlawful basis.” (ECF

No. 34 ¶ 75.) As to the conspiracy, the Second Amended Complaint further asserts: (1) Defendants

“were engaged in a joint venture” during the Incident; and (2) “[t]he unnamed defendants assisted

each other in performing the various actions described and lent their physical presence and support,

and the authority of their office to each other during the said events.” (Id. ¶¶ 29, 31.) However,

these assertions of conspiracy are insufficient, because: (1) the reference to a joint venture is only

a bare assertion of conspiracy; and (2) the description of the actions of “unnamed defendants” does

not involve Alateek or Portuondo. In other words, Wierzbicki fails to sufficiently allege Alateek

or Portuondo’s involvement in a conspiracy against him. Therefore, Wierzbicki’s § 1985 claim

against Alateek and Portuondo warrants dismissal. As a result, his § 1986 claim against Alateek

and Portuondo must also fail.

Accordingly, Counts IV and V against the Officer Defendants are dismissed.

3. The Assault and Battery Claim Against Larkins Is Inviable

In Part III.C.1, supra, the Court has “already determined that [Wierzbicki] ha[s] stated a

plausible claim of excessive force under § 1983 as against” Alateek and Portuondo, which means

Wierzbicki “ha[s] also stated a viable common law claim of assault and/or battery as against”

Alateek and Portuondo, because “both [claims] are predicated on [their] alleged use of excessive

force.” Gaymon v. Esposito, Civ. A. No. 11-4170, 2013 U.S. Dist. LEXIS 116159, at *71–72

(D.N.J. Aug. 16, 2013) (citations omitted); see also Sanders v. Jersey City, Civ. A. No. 18-1057,

2021 U.S. Dist. LEXIS 78681, at *55–56 (D.N.J. Apr. 23, 2021) (“Although arrests may involve

force that would qualify as an assault or battery, an officer is only liable if the force was excessive.

So the analysis for assault and battery tracks the analysis for excessive force.” (citations omitted));

Antoine v. Rucker, Civ. A. No. 03-3738, 2006 U.S. Dist. LEXIS 46824, at *43 (D.N.J. July 11,

2006) (“A police officer can be held liable for assault and battery if he uses excessive force.”

(citing Mantz v. Chain, 239 F. Supp. 2d 486, 507 (D.N.J. 2002))). As a result, the Court only needs

to analyze the viability of the assault and battery claim against Larkins.

A person is subject to liability for the common law tort of assault if: “(a) he acts intending

to cause a harmful or offensive contact with the person of the other or a third person, or an

imminent apprehension of such a contact, and (b) the other is thereby put in such imminent

apprehension.” Leang v. Jersey City Bd. of Educ., 969 A.2d 1097, 1117 (N.J. 2009) (quoting

Wigginton v. Servidio, 734 A.2d 798, 806 (N.J. Super. Ct. App. Div. 1999)). “Imminent

apprehension is interpreted to mean that the person ‘must believe that the act may result in

imminent contact unless prevented from so resulting by the other’s self-defensive action or by his

flight or by the intervention of some outside force.’” Ruiz v. N.J. Dep’t of Corr., Civ. A. No. 15-

3304, 2020 U.S. Dist. LEXIS 40080, at *22 (D.N.J. Mar. 9, 2020) (quoting Restatement (Second)

of Torts § 24). “Courts have been reluctant to protect extremely timid individuals from exaggerated

fears of contact and have often stated that the apprehension must be one which would normally be

aroused in the mind of a reasonable person.” Powell v. Verizon, Civ. A. No. 19-8418, 2019 U.S.

Dist. LEXIS 161552, at *28 (D.N.J. Sept. 20, 2019) (quoting Wigginton, 734 A.2d at 806); see

also Richman v. Valley Hosp., Civ. A. No. 988-17, 2017 N.J. Super. Unpub. LEXIS 4120, at *7

(N.J. Super. Ct. Law Div. Oct. 27, 2017) (“In New Jersey, a person may be liable for civil assault

only if . . . the plaintiff’s fear of imminent apprehension is reasonable.”). Here, the Second

Amended Complaint does not allege any act of Larkins directed to Wierzbicki. Therefore,

Wierzbicki has no factual basis to assert an assault claim against Larkins. Even if Larkins’ inaction

may satisfy the first prong of an assault claim, it cannot meet the second prong, i.e., being able to

put a reasonable person in an imminent apprehension of contact. See Wigginton, 734 A.2d at 805–

06 (affirming the dismissal of the plaintiff’s assault claim, because the defendants did not use force

against the plaintiff or “sp[eak] in a forceful, angry, offending, rude, or insolent manner such that

it was obvious that defendants were about to physically attack plaintiff”).

“[W]ith battery, a plaintiff must allege that there was, in fact, an offensive contact.” Shelley

v. Linden High Sch., Civ. A. No. 19-20907, 2020 U.S. Dist. LEXIS 203927, at *8 (D.N.J. Nov. 2,

2020) (citing Leang, 969 A.2d at 1117); see also Bullock v. Cabasa, Civ. A. No. 10-1412, 2014

U.S. Dist. LEXIS 146604, at *33 (D.N.J. Oct. 14, 2014) (“[B]ecause [the defendant] did not touch

the plaintiff, an essential element of a claim for battery is missing, and [the defendant] cannot be

held liable for battery as a matter of law.”). Because the Second Amended Complaint does not

allege any touching by Larkins directed to Wierzbicki, the battery claim against Larkins is not

sufficiently pleaded.

Accordingly, Count VIII against Larkins are dismissed.

4. The Intentional Infliction of Emotional Distress Claim Is Inviable

“To succeed on a common law cause of action for intentional infliction of emotional

distress,” a plaintiff must show: (1) the “defendant acted intentionally or recklessly,” and

“intend[ed] both to do the act and to produce emotional distress;” (2) “the defendant’s conduct was

extreme and outrageous;” (3) “the defendant’s conduct was a proximate cause of the plaintiff’s

emotional distress;” and (4) “[t]he emotional distress suffered by the plaintiff must be so severe

that no reasonable person could be expected to endure it.” Eivich v. E. Greenwich Twp., Civ. A.

No. 20-6851, 2021 U.S. Dist. LEXIS 42599, at *9–10 (D.N.J. Mar. 5, 2021) (quoting Ingraham v.

Ortho-McNeil Pharm., 25 A.3d 1191, 1194–95 (N.J. Super. Ct. App. Div. 2011)). As for the

second element, the defendant’s conduct must be “so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Ingraham, 25 A.3d at 1195 (quoting Buckley v. Trenton

Saving Fund Soc’y, 544 A.2d 857, 863 (N.J. 1988)). The second element represents “an ‘elevated

threshold’ that is satisfied only in extreme cases.” Id. (quoting Griffin v. Tops Appliance City, Inc.,

766 A.2d 292, 296 (N.J. Super. Ct. App. Div. 2001)). As for the fourth element, the “[p]laintiff’s

complaint” cannot be “silent as to the nature of [the plaintiff’s] alleged emotional distress,” which

“has been considered sufficiently severe where it interferes with day-to-day activities or requires

psychiatric counseling,” whereas “aggravation, embarrassment, an unspecified number of

headaches, and the loss of sleep are insufficient.” Eivich, 2021 U.S. Dist. LEXIS 42599, at *11 n.5

(citations omitted).

On the second element, the Second Amended Complaint simply alleges “Defendants’

conduct was extreme and outrageous” (ECF No. 34 ¶ 94), “without specifying which conduct by

which defendant demonstrates the ‘elevated threshold’ of the second factor that is satisfied only in

extreme cases.” Eivich, 2021 U.S. Dist. LEXIS 42599, at *11 (quoting Ingraham, 25 A.3d at

1195). On the fourth element regarding Wierzbicki’s emotional distress resulting from the

Incident, the Second Amended Complaint refers to his “pain and suffering,” “mental and emotional

stress,” “mental and emotional trauma . . . which continue to this day and are permanent in nature,”

“[p]sychological trauma, emotional distress, suffering,” and “extreme emotional distress.” (ECF

No. 34 ¶¶ 33–34, 38, 40, 95.) But it “fails to articulate the nature of his ‘extreme emotional distress’

and how [] ‘no reasonable person could be expected to endure it.’” Eivich, 2021 U.S. Dist. LEXIS

42599, at *11. Therefore, Wierzbicki’s “conclusory allegation that [Defendants’] actions

constituted intentional infliction of emotional distress does not satisfy Rule 8(a) or the

Twombly/Iqbal pleading requirements.” Id. at *11–12.

Accordingly, Counts IV, V, and IX against the Officer Defendants, as well as Counts I, VI,

and VIII against Larkins, warrant dismissal. Nevertheless, the dismissal is without prejudice. The

May Opinion did not address Wierzbicki’s claims against the Officer Defendants, who were not

parties to this case in the original Complaint. This is the first time that the Court has considered

these claims, whose factual deficiencies have not been addressed before. As a result, the Court

grants Wierzbicki an opportunity to amend these counts.

IV. CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss is GRANTED on: Count

I against Larkins; Counts II through V in their entirety; Count VI against JC, JCPD, and Larkins;

Count VII in its entirety; Count VIII against JC, JCPD, and Larkins; Count IX in its entirety; and

Count X as to JC and JCPD. The remaining portions of Defendants’ Motion to Dismiss are

DENIED. Wierzbicki’s: Count I against Larkins; Count IV against the Officer Defendants; Count

V against the Officer Defendants; Count VI against Larkins; Count VIII against Larkins; Count

IX against the Officer Defendants; Count X against JC are DISMISSED WITHOUT

PREJUDICE. Wierzbicki’s: Count II; Count III; Count IV against JC and JCPD; Count V against

JC and JCPD; Count VI against JC and JCPD; Count VII; Count VIII against JC and JCPD; Count

IX against JC and JCPD; and Count X against JCPD are DISMISSED WITH PREJUDICE.

Date: September 10, 2021 /s/ Brian R. Martinotti___________

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE