CLAYTON v. CITY OF NEWARK

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

RONALD CLAYTON, Administrator

Ad Prosequendum for the Estate of

ANDREW JAMES DIXON,

Plaintiff,

v.

CITY OF NEWARK, MAYOR RAS J.

BARAKA, OFFICER JOVANNY

CRESPO, in his official and

individual and capacities;

OFFICER HECTOR ORTIZ, in his

official and individual and

Civ. No. 21-1289 (KM) (ESK)

capacities; OFFICER VALERIA

SANCHEZ, in her official and

OPINION

individual capacities; OFFICER

GABRIEL LOPEZ, in his official and

individual and capacities;

OFFICER EDGARDO GONZALEZ, in

his official and individual and

capacities; LIEUTENANT KIRT

RUBEL, in his official and

individual and capacities; JOHN

DOE POLICE OFFICERS 1-20,

AAHMAD GRIFFIN, Administrator

Ad Prosequendum and

Administrator of the ESTATE OF

GREGORY GRIFFIN, and EBONY

DAVIS,

Defendants.

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

In January 2019, Andrew Dixon was the passenger in a vehicle driven by

Gregory Griffin that was involved in a car chase with the Newark Police

Department (“NPD”). After the chase ended, defendant Officer Jovanny Crespo

shot both Griffin and Dixon, killing Griffin and injuring Dixon. Ronald Clayton,

the administrator of Dixon’s estate,1 now brings numerous tort and civil rights

claims against the police officers involved in the chase and shooting, as well as

Mayor Ras J. Baraka and the City of Newark itself.

The Mayor and the City (collectively the “City defendants”) now move

jointly to dismiss the Monell claims contained in Counts III, IV, and IX. For the

following reasons, their motion to dismiss is GRANTED in part and DENIED

in part. All claims against Mayor Ras J. Baraka in his personal capacity are

dismissed. The Monell claims are in many respects worthy of development in

discovery and will go forward. I have, however, pruned back the complaint by

dismissing as facially deficient certain Monell sub-theories: the Monell policy

claim (but not the custom claim) of Count III, the failure to train and related

claims (but not the failure to discipline claim with respect to defendant Crespo)

in Count IV; and the negligent hiring claim of Count IX.

The City defendants also move for this case to be stayed pending the

resolution of Officer Crespo’s criminal trial. I decline to grant an outright stay

and instead will let discovery move forward on issues not directly related to

Crespo’s defense of the criminal charges against him.

I. BACKGROUND

On January 28, 2019, Andrew Dixon was the passenger in a car driven

by Gregory Griffin. (Compl. ¶ 26.)2 Newark police officer Valeria Sanchez pulled

the car over. After approaching the car and demanding that Griffin turn off the

engine, she saw a gun in the car. (Id. ¶¶ 25–56.) Because Griffin did not comply

with her orders to open the car window and turn off the ignition, Sanchez

1 Dixon was killed earlier this year in an unrelated hit-and-run accident. (2AC ¶

8.)

2 Certain citations to the record are abbreviated as follows:

DE = docket entry number in this case

2AC = Second Amended Complaint (DE 44)

Mot. = City Defendants’ motion to dismiss (DE 26)

Opp. = Plaintiff’s brief in opposition to the motion to dismiss (DE 37)

attempted to open the car door, at which point Griffin drove away. (Id. ¶¶ 73–

74.) A car chase ensued, involving a number of officers, including Jovanny

Crespo. (Id. ¶¶ 84–89.) Twice before the fatal encounter, Crespo got out of his

police car and fired shots at the moving vehicle that contained Griffin and

Dixon. (Id. ¶¶ 93–110.) Soon, another police vehicle forced Griffin and Dixon’s

car to a stop. Crespo then again got out of his police vehicle and approached

the passenger side of the car on foot. (Id. ¶¶ 111–17.) He fired three shots into

the vehicle, killing Griffin and nonfatally shooting Dixon in the face. (Id. ¶¶

117–19.) Crespo and other officers then removed Dixon from the vehicle and

handcuffed him. One officer put a knee on Dixon’s neck while another punched

him in the face. (Id. ¶¶ 122–126.)

In May 2019, a grand jury indicted Crespo on charges of aggravated

manslaughter, aggravated assault, possession of a weapon for an unlawful

purpose, and official misconduct for the shooting. (Id. ¶ 5.) A motion to dismiss

in that case has been denied (Mot. at 37), but the case has not otherwise

proceeded. No other officers involved in the incident were charged criminally.

Dixon’s estate brings three counts against the City defendants (in

addition to a number of claims against the individual officers which are not at

issue on this motion). The Counts against the City defendants are Monell

municipal liability claims under 42 U.S.C. § 1983 for maintaining a custom or

policy resulting in a constitutional deprivation (Count III; 2AC ¶¶ 203–19);

failure to train, supervise, and discipline (Count IV; 2AC ¶¶ 220–30); and

negligent hiring and retention of employees (Count IX; 2AC ¶¶ 262–67).3 See

generally Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978)

(stating standards for municipal government § 1983 liability; see infra).

In 2011, the United States Department of Justice began an investigation

into civil rights and Constitutional violations by the Newark Police Department.

(2AC ¶ 132.) That investigation resulted in a 2014 report (“DOJ Report”) that

detailed certain patterns of misconduct within the department. (Id. ¶ 139; DE

3 I construe Count IX as a Monell claim, not a state-law tort claim. (Opp. at 22.)

26-10, Ex. 4). In 2016, the City entered into a Consent Decree with the DOJ,

which required the police department to make a number of policy reforms and

appointed a federal monitor to oversee the department. (DE 26-7, Ex. 1.)

At the time of the 2019 incident detailed in the complaint, the NPD had

both a vehicular pursuit policy, revised in 2017 (2AC ¶ 162; DE 26-12, Ex. 6),

and use of force policy, revised in November 2018 (2AC ¶¶ 284–85; DE 26-13,

Ex. 7; see https://www.newarkpdmonitor.com (official website of NPD

Independent Monitor, last visited Dec. 21, 2021).)

Plaintiff filed this case on January 27, 2021, and amended the complaint

the next day. (DE 1, 3.) On April 16, 2021, the City defendants moved to

dismiss. (DE 26.) Plaintiff filed a brief in opposition (DE 37) and the City

defendants filed a reply (DE 42.) On June 8, 2021, Judge Edward Kiel granted

a stay of discovery and denied plaintiff’s motion to consolidate this case with

the civil case filed by Griffin.4 (DE 38) Plaintiff filed a second amended

complaint on July 6, 2021. (DE 44) Because the second amended complaint

did not substantially alter its predecessor, Judge Kiel ordered that the existing

motion to dismiss be considered in relation to the second amended complaint

(DE 43.) The motion to dismiss is now fully briefed and ripe for decision.

II. MOTION TO DISMISS COUNTS III, IV, AND IX

A. Standard of Review

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

contain detailed factual allegations, but it must assert “more than labels and

conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The

allegations must raise a claimant’s right to relief above a speculative level, so

that a claim is “plausible on its face.” Id. at 570. That standard is met when

“factual content [] allows the court to draw the reasonable inference that the

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

4 A parallel state-court civil action, brought on behalf of Gregory Griffin, the

deceased driver of the car, was removed to this federal court but recently remanded to

state court because the complaint asserted only state-law claims. Estate of Griffin v.

City of Newark, Civ. No. 20-17290, DE 15 (Hayden, J.).

678 (2009). Rule 12(b)(6) provides for the dismissal of a complaint if it fails to

state a claim. The defendant bears the burden to show that no claim has been

stated. Davis v. Wells Fargo, 824 F.3d 333, 349 (3d Cir. 2016). I accept facts in

the complaint as true and draw reasonable inferences in the plaintiff’s favor.

Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (en banc).

On a motion to dismiss, courts may consider matters within the “four

corners” of the complaint, as well as “documents incorporated into the

complaint by reference,” Institutional Invs. Grp. v. Avaya, Inc., 564 F.3d 242,

252 (3d Cir. 2009), and documents that are “integral to or explicitly relied

upon” in the complaint, In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,

1426 (3d Cir. 1997). In addition, courts may take judicial notice of the contents

of public records in ruling on a 12(b)(6) motion. Anspach ex rel. Anspach v. City

of Philadelphia, Dep’t of Pub. Health, 503 F.3d 256, 273 n.11 (3d Cir. 2007).

Here, plaintiff argues that I should not consider the eight documents that

the City defendants have attached to their motion to dismiss. (Opp. at 18.) In

ruling on this motion to dismiss, only four of the attached documents are

relevant: the NPD pursuit policy, the NPD use of force policy, the DOJ Report,

and the consent decree between Newark and the Department of Justice. (DE

26-12, Ex. 6; DE 26-13, Ex. 7; DE 26-10, Ex. 4; DE 26-7, Ex. 1.) The written

policies are repeatedly referred to and relied on in the complaint, especially

Count III, which alleges that the policies of the NPD resulted in the alleged

violation of Mr. Dixon’s constitutional rights. (2AC ¶ 203–19.) Because they are

public records and because the content of the policies is integral to the

complaint, these two policy documents are appropriate for me to consider. The

DOJ investigation, Report, and resulting consent decree are also discussed at

length in the complaint and are thus integral to it. (2AC ¶ 131–39, 224–25).

Indeed, the Third Circuit has upheld a district court’s reliance on the Newark-

DOJ consent decree at the motion to dismiss stage, in connection with a Monell

claim against the City. Est. of Roman v. City of Newark, 914 F.3d 789, 797 (3d

Cir.), cert. denied, 140 S. Ct. 82, 97 (2019). I therefore may consider those four

documents in my analysis of the motion to dismiss.5

B. Monell Theories of Municipal Liability

In Monell v. Dep’t of Soc. Servs., the Supreme Court established that local

government units cannot be held liable via respondeat superior for the

constitutional violations of their employees “unless action pursuant to official

municipal policy of some nature caused a constitutional tort” to be committed

by such employees. 436 U.S. at 691. “Policy is made when a decisionmaker

possessing 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) (cleaned up). Policies need

not be official, however. Plaintiffs can hold municipalities liable by proving that

a customary practice “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). Whether the plaintiff pursues a

policy or custom claim, he or she must allege that “a [city] government’s policy

or custom ... inflict[ed] the injury” in question. Monell, 436 U.S. at 694. In other

words, “a plaintiff must demonstrate a ‘plausible nexus’ or ‘affirmative link’

between the municipality’s custom and the specific deprivation of

constitutional rights at issue.” Bielevicz, 915 F.2d at 850; see also Losch v.

Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984).

The Third Circuit has held that a Monell claim may also be premised on a

municipality’s failure to train, supervise, and discipline its employees. To plead

such a claim, a plaintiff “must demonstrate that a city’s failure to train its

employees ‘reflects a deliberate or conscious choice.’” Roman, 914 F.3d at 798,

800 (quoting Brown v. Muhlenberg Township, 269 F.3d 205, 215 (3d Cir.

2001)). Deliberate indifference is plausibly pled by showing that “(1) municipal

5 To be clear, I do not rely on these documents as evidence, as I would on a

summary judgment motion. Rather, they are cited for their existence and legal effect,

and also insofar as they may lend plausibility to the complaint’s allegations for

purposes of Rule 8.

policy makers know that employees will confront a particular situation, (2) the

situation involves a difficult choice or a history of employees mishandling, and

(3) the wrong choice by an employee will frequently cause deprivation of

constitutional rights.” Id. (quoting Doe v. Luzerne County, 660 F.3d 169, 180

(3d Cir. 2011) (internal brackets omitted)). In addition, plaintiffs must allege

that there is a “direct causal link” between the policy and the constitutional

violation that is alleged. Brown v. Commonwealth of Pennsylvania, Dep’t of

Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 482 (3d Cir. 2003)

(citing City of Canton v. Harris, 489 U.S. 378, 385 (1989)). Conclusory

recitations of the elements of a Monell claim are not sufficient. See, e.g.,

Benjamin v. E. Orange Police Dep’t, 937 F. Supp. 2d 582, 595 (D.N.J. 2013)

(dismissing the claim against the city because the plaintiff failed to plead

adequate facts demonstrating the existence of a relevant policy or custom).

C. Claims against Mayor Baraka in his Personal Capacity

Plaintiffs bring Counts III, IV, and IX against Mayor Ras J. Baraka in

both his personal and official capacity. (2AC ¶ 204; Opp. at 20–21.) Officials

can be held liable in their personal capacities if they either (1) participated

directly in the constitutional violation, or, (2) “with deliberate indifference to the

consequences, established and maintained a policy, practice or custom which

directly caused [the] constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne Cty.

Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). Here, the plaintiff does not

allege that Mayor Baraka had any personal involvement in the car chase and

shooting. Rather, plaintiff argues that Mayor Baraka is liable because he was

“specifically on notice that there was overwhelming evidence that misconduct

by Newark Police Officers, and that a lack of supervision and training resulted

in the violations of citizens’ constitutional rights which were being ignored”

(Opp. at 20), but “failed to take preventive and re[me]dial measures or to

establish a system that was capable of disciplining or correcting the

misconduct of its officers” (id. at 21).

The complaint, however, states only conclusory generalities about Mayor

Baraka’s role in establishing and maintaining the policies and practices of the

NPD. For example, the complaint states that Baraka “had final policy making

authority regarding establishing written policies and training programs

governing the conduct of NPD officers” and that the “policies and training

established or approved by the MAYOR constitute the official policy of the CITY

OF NEWARK and were the moving force behind and caused MR. DIXON’S

injuries.” (2AC ¶ 204, 206.) Such conclusory claims are not enough. Plaintiff

does not plead any specific facts related to Mayor Baraka’s influence on the

NPD’s use of force or pursuit policies, or his involvement in police training or

discipline.6 In fact, the complaint does not allege a single act of any kind taken

by Mayor Baraka. That a mayor has general authority over city governance is

not sufficient to hold him personally liable for the actions of city employees.

Because the plaintiff has not alleged any particular acts by Mayor Baraka

regarding the NPD’s policies, supervision, or training, the claims against the

Mayor in his personal capacity must be dismissed.

D. Discussion of Monell Claims Against the City and the Mayor in his

Official Capacity

The remaining Monell defendants, then, are the City itself and the Mayor

in his official capacity. A suit against an official in his or her official capacity is

“in all respects other than name, to be treated as a suit against the entity.”

Kentucky v. Graham, 473 U.S. 159, 166 (1985). For simplicity, I will discuss

the Monell claims against the City, specifically mentioning Mayor Baraka in his

official capacity only as necessary.

1. Monell “policy” claim (Count III)

To properly state a Monell policy or custom claim against a municipality,

a plaintiff “must identify a custom or policy, and specify what exactly that

6 Any straightforward attribution of relevant municipal policies to the Mayor is

additionally complicated by the 2016 consent decree, which placed the NPD and

revision of its policies under the authority of an independent monitor.

custom or policy was.” McTernan v. City of York, PA, 564 F.3d 636, 658 (3d Cir.

2009). Plaintiff has failed to allege a specific policy of the city or NPD that

caused Mr. Dixon’s injury. In fact, the complaint alleges that Dixon was injured

because Crespo and other officers violated the NPD’s existing and written

policies. (2AC ¶ 162, 184–87.) In addition, the NPD has since 2016 been under

a federal monitor, who, as of November 2018, had promulgated new, stricter

formal policies, particularly regarding arrests and use of force. See

https://www.newarkpdmonitor.com/reportsresources/

Nothing in the complaint discusses any NPD policy with specificity or

identifies any way that the existing policies led to constitutional violations. A

fortiori, no defect is identified with respect to the formal policies that were in

place. Because the complaint includes no pertinent facts related to the NPD’s

policies, it cannot allege that there was a “direct causal relationship” between

the inadequacy of such policies and the alleged violation of Mr. Dixon’s rights,

Brown v. Commonwealth, 318 F.3d at 482.

The motion to dismiss Count III insofar as it asserts a Monell “policy”

claim against the City defendants is therefore GRANTED.

2. Monell “custom” claim (Count III)

Even where appropriate official policies are in place, however, a

municipality may be liable for fostering a de facto policy, i.e., an established

custom or practice of condoning Constitutional violations. Plaintiff cites several

instances in which the City allegedly “promoted, fostered, or ratified several

customs, patterns, or practices” that allegedly resulted in a violation of Mr.

Dixon’s constitutional rights. (2AC ¶ 209–212.)

Implicit in the briefing is a dispute over the level of generality at which an

established custom or pattern should be defined. It is important that the

custom encompass a category of activities that might reasonably be the subject

of a discrete official policy, while not expanding to the point of

meaninglessness. See Terry v. Cty. of Milwaukee, No. 17-CV-1112-JPS, 2018

WL 2567721, at *9 (E.D. Wis. June 4, 2018) (“Yet [plaintiff] cannot describe the

series of acts that she believes constitute the challenged practice except at the

highest level of generality. If a practice is too expansively defined, as Terry’s is,

it becomes nonsensical to charge a municipal entity with notice of such a

practice”); Freeman v. City of Crown Point, No. 2:13–CV–059 JD, 2014 WL

545511, at *10 (N.D. Ind. Feb. 11, 2014) (a plaintiff cannot tie together

disparate instances of misconduct that “would encompass nearly every activity

of the [police] department,” as it “deprives the [municipality] of the notice to

which it is entitled as to what policies it maintains that deprived [the plaintiff]

of his rights”).

Plaintiff would have me determine that a pattern of unconstitutional

actions of any type by the NPD would suffice. The City defendants would define

the custom or pattern in relation only to prior extended vehicle chases

accompanied by shootings. I would narrow the Plaintiff’s formulation and

broaden the City’s: The potentially relevant customs, I find, would be those

governing use of excessive or deadly force in connection with apprehending a

suspect.

I first consider vehicle pursuits. Pursuit and arrest of a suspect who is in

a vehicle pose special challenges to law enforcement, both in terms of difficulty

of apprehension and the need to make split-second decisions, especially

because the car itself can become a deadly weapon. Municipalities, including

Newark, commonly promulgate formal policies governing this specific area of

police activity, laying down rules and providing training on how police engage

in vehicle pursuits, conduct vehicle stops, and even respond to car crashes.

Thus, a municipality may be liable for failure to train officers regarding high-

speed chases, see Fagan v. City of Vineland, 22 F.3d 1283, 1294 (3d Cir. 1994),

or for having car chase customs or policies that result in constitutional

violations. Further, with respect to Monell policy, custom, or negligent training

theories, the case law has given separate consideration to police shootings

involving moving vehicles. See McDonald v. City of Troy, No. 1:18-CV-1327,

2021 WL 2232565, at *10 (N.D.N.Y. June 3, 2021); Eberhardinger v. City of

York, 341 F. Supp. 3d 420, 430 (M.D. Pa. 2018), aff’d, 782 F. App’x 180 (3d

Cir. 2019); Est. of Smith v. City of Wilmington, No. 04-1254 GMS, 2007 WL

879717, at *14 (D. Del. Mar. 22, 2007), aff’d, 317 F. App’x 237 (3d Cir. 2009).7

It is true that the complaint alleges that Crespo repeatedly fired his

weapon at the fleeing vehicle. But whether or not this was justified under

existing policies (whether formal or de facto) governing vehicular pursuits,

those shots do not seem to have resulted in any injury. The car pursuit, while

relevant, is not at the core of plaintiff’s constitutional claims here.

I therefore move on to consider the allegedly excessive use of force after

the car had been stopped. Such a focus best accords with the allegations of the

complaint. Plaintiff alleges that the officers twice used excessive force: first,

when Crespo fired his weapon into the car, killing Griffin and injuring Dixon;

and second, when the officers pulled Dixon from the car, and, after subduing

and handcuffing him, continued to strike him. Those events, I find, are

reasonably related to an ordinary claim of excessive force in connection with

arrest. Established municipal custom in relation to excessive use of force,

whether or not a vehicle was involved, would therefore be relevant, and would

be an appropriate unit of analysis for a Monell “custom” claim.8

Plaintiff pleads two distinct sets of facts to support the custom claim:

First, the complaint lists specific incidents of use of excessive force by the NPD;

7 As to qualified immunity, the analysis has been parallel in many respects, with

courts analyzing whether it was clearly established as an unreasonable use of force to

shoot at the vehicle of a suspect attempting to evade arrest but who posed no

immediate danger to officers. See Jefferson v. Lias, No. 20-2526, 2021 WL 5934677, at

*5-*6 (3d Cir. Dec. 16, 2021) (discussing appropriate level of specificity for purposes of

qualified immunity and following cases that deemed it an unreasonable use of deadly

force to shoot at a fleeing vehicle) (citing, e.g., Waterman v. Batton, 393 F.3d 471 (4th

Cir. 2005); Lytle v. Bexar County, 560 F.3d 404 (5th Cir. 2009); Abraham v. Raso, 183

F.3d 279, 290 (3d Cir. 1999); Kirby v. Duva, 530 F.3d 475, 483 (6th Cir. 2008)).

8 At least provisionally, at the motion-to-dismiss stage; the Court’s view of the

relevant “pattern” could change in light of the facts as they develop. I do not mean, by

the way, to cut off discovery or imply that the wild chase described in the complaint

would not be relevant to the claims.

second it discusses the DOJ 2014 report and 2016 consent decree that placed

the NPD under a federal monitorship. (2AC ¶ 131–148.)

The complaint lists seven specific instances of alleged application of

excessive force by the NPD which took place between 2008 and 2021. Five of

those took place in 2008 or 2009, a decade before the incident described in the

complaint; the remaining two took place in 2020 and 2021, two years after the

incident described in the complaint (although arguably close enough in time to

be relevant). (2AC ¶ 140–48.) One of the incidents, in 2009, is most suggestive

in that it involved the shooting of an unarmed motorist, and resulted in a jury

finding that officers used excessive force.9 (Id. ¶ 144.) A lawsuit resulting from

a second 2009 incident was dismissed on procedural grounds. (Id. ¶ 145.) The

two most recent cited incidents involve a May 2020 police beating after an “oral

altercation” and a January 2021 shooting of an unarmed man. (Id. ¶ 142–43.)

The complaint also discusses the 2014 DOJ Report on the

unconstitutional practices of the NPD and the related 2016 consent decree.

(2AC ¶ 131–39.) In prior cases, the consent decree and its background have

supported the denial of motions to dismiss Monell claims regarding police

misconduct. (Opp. at 24 (citing Fallen v. City of Newark, 2017 WL 368500

(D.N.J. Jan. 24, 2017) and Kelly v. City of Newark, 2018 WL 1378727 (D.N.J.

Mar. 16, 2018)). Plaintiff claims that the DOJ Report shows “a long-standing

history of constitutional violations by the Newark Police Department that

includes the type of behavior that resulted in the alleged deprivation of Mr.

Dixon’s rights.” (Opp. at 24.) The Second Amended Complaint cites the Report’s

findings regarding, inter alia, a pattern of unreasonable use of force by the

police. (2AC ¶¶ 131–39)

I will permit the “custom” claim to go forward based on this limited

showing,10 recognizing that much of the relevant information would be in the

9 Actually, the date of December 2009 refers to the jury finding; the presumably

earlier date of the shooting is unclear from the complaint. (2AC ¶ 144.)

10 It is plausibly alleged that the NPD has used constitutionally excessive levels of

force at various times and in various contexts in the past. The issue is not, however,

hands of the City. The motion to dismiss Count III, insofar as it asserts a

Monell “custom” theory, is therefore DENIED.

3. Failure to train, supervise, or discipline (Count IV)

Next, the plaintiff alleges that the City defendants should be liable for

failure to train, supervise, or discipline Crespo or the other officers involved. I

find that plaintiff has failed to state a Monell claim regarding training, but has

stated a claim of failure to discipline Crespo.

The complaint alleges generally that the City “was aware of a need for

more and different training” and that it “failed to properly train or modify its

training.” (2AC ¶ 221, 223.) NPD officers are required to undertake bi-annual

use of force and vehicular pursuit trainings. (DE 26-2 at 7, 10) The complaint

acknowledges that such training was required by the consent decree (id. ¶ 224–

25); it does not, however, allege that mandated training was not implemented

whether the NPD ever was under the direction of an administration that condoned

excessive use of force, but whether it remained in that status at the time of Dixon’s

arrest in January 2019.

The DOJ Report arguably assists in bridging the gap between the two sets of

specific incidents, dating from 2008–09 and 2020–21. The 2014 DOJ Report was

based on an investigation that began in 2011. (2AC ¶ 132.) In 2016, the City and the

DOJ entered into a consent decree that was intended to remedy the unconstitutional

practices described in the Report. (2AC ¶ 131.) The Report and consent decree have

been successfully cited by plaintiffs in Monell cases to establish a custom of

unconstitutional practices by the NPD. See Fallen, 2017 WL 368500 (2012); Kelly,

2018 WL 1378727 (2015). In those cases, however, the alleged unconstitutional acts

occurred in roughly the same time frame covered by the Report and decree. See also

Roman, 914 F.3d at 799 (“While the consent decree was not in place during Roman’s

search and arrest, we may fairly infer that the problems that led to it were occurring

during the time of his allegations and for some time before that.”).

At the time of the events now in suit, it had been more than four years since the

DOJ report, and the consent decree had been in effect for two years. The NPD was

then, and remains today, under the supervision of a federal monitor, who has also

promulgated new formal policies governing police procedures. (2AC ¶ 149; see also

https://www.newarkpdmonitor.com (official website of NPD Independent Monitor, last

visited Dec. 21, 2021).) Now it is possible, of course, that a pattern of unconstitutional

customs and practices had abated by the time of Dixon’s arrest; it is also possible that

municipal compliance had lagged. Plaintiff alleges that the pattern has persisted, a

claim that may be tested in discovery.

or that the training was insufficient in some respect. The only allegation of

substandard training that approaches the factual is a quote from Officer

Crespo in a television interview that “we didn’t receive any training that can

help me with that incident.” (2AC ¶ 127) Given the training that was admittedly

in place, that vague and self-serving statement is not enough to establish that

the City was deliberately indifferent to training NPD officers and that such a

lack of training caused the shooting of Mr. Dixon. It is, of course, possible that

the NPD’s training regimen is in some way insufficient, or that the officers did

not attend. The complaint, however, does not specifically allege as much. It

therefore does not state a failure-to-train Monell claim with respect to the

officers involved.

Plaintiff has stated a plausible claim, however, regarding the City

defendants’ failure to discipline Crespo. Such a pointed claim is different from

a claim of systemic failure, like the ones above, which a plaintiff should be able

to allege if it is true. Here, the complaint alleges that the City made a deliberate

choice not to discipline Crespo despite “repeated unconstitutional, unlawful, or

other improper conduct,” specifically, “a pattern of complaints regarding

excessive force.” (2AC ¶ 213–214.) The complaint provides no more details

about complaints against Crespo, but at this stage that is not surprising,

because discovery has not yet commenced, and relevant records are in the

hands of the City. See Harvey v. Cty. of Hudson, 2015 WL 9687862, at *10

(D.N.J. Nov. 25, 2015). The link between failure to discipline (even if prior

complaints were not similar in every factual detail) and a sense of individual

impunity, contributing to the excessive use of force, would be a plausible one.

Taking the allegation that Crespo was not disciplined after a pattern of

complaints as true, as I do at this stage, I find that plaintiff has stated a

plausible Monell claim for failure to discipline Crespo. As to the other officers,

however, the failure to discipline claim lacks factual support.

The motion to dismiss Count IV is DENIED as to the claim of failure to

discipline Crespo, but otherwise GRANTED.

4. Negligent Hiring (Count IX)

Finally, plaintiff alleges that the City defendants negligently hired and

retained the defendant officers. The Supreme Court has established a high

standard for stating a negligent-hiring Monell claim. A finding of culpability for

negligent hiring “must depend on a finding that this officer was highly likely to

inflict the particular injury suffered by the plaintiff. The connection between the

background of the particular applicant and the specific constitutional violation

alleged must be strong.” Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520

U.S. 397, 412 (1997). The plaintiff makes no allegations whatever about the

pre-hiring backgrounds of any of the officers involved, let alone the manner in

which their backgrounds would be connected to the shooting of Mr. Dixon. Nor

does he plead facts related to the NPD’s hiring policies generally. The

complaint’s brief recitation of the elements of respondeat superior (2AC ¶ 262–

67), to the extent it is relevant at all, see p. 5, supra, is not sufficient to state a

claim.

The motion to dismiss is therefore GRANTED with regard to Count IX.

III. MOTION FOR STAY

The City defendants request that this case be stayed pending the

resolution of the criminal proceedings against Officer Crespo.11 (Mot. at 32.) In

considering whether to issue a stay, I must consider a number of issues

including “1) the extent to which the issues in the criminal and civil cases

overlap; 2) the status of the case, including whether the defendants have been

indicted; 3) the plaintiff's interest in proceeding expeditiously weighed against

the prejudice to plaintiff caused by a delay; 4) the private interests of and

burden on defendants; 5) the interests of the court; and 6) the public interest.”

Walsh Sec., Inc. v. Cristo Prop. Mgmt., Ltd., 7 F. Supp. 2d 523, 527 (D.N.J.

1998). I take each of the factors in turn.

11 State of New Jersey v. Jovanny Crespo, ESX-19-004022, New Jersey Superior

Court, Essex County. The City also refers to disciplinary proceedings against Crespo.

As to these, the case for a stay is much weaker, so I focus on the criminal case.

First, there is no doubt that this matter and the criminal case both

center on Officer Crespo’s actions and thus that there is significant, if not total,

overlap of the issues. Second, Officer Crespo has been indicted, so there is a

real risk of self-incrimination in defending against these civil allegations, a

factor which weighs in favor of the stay. Third, given the disruption of criminal

cases due to COVID-19, the pre-pandemic assumption that a criminal case

would be speedily disposed of, and therefore would cause little prejudice to the

civil plaintiff, has lost some of its validity. Of course, civil trials have been

delayed as well, possibly mitigating the prejudice of one vis-à-vis the other. Id.

That said, there is a risk of prejudice to the plaintiff if the resolution of Crespo’s

criminal case is delayed for a long time. This factor therefore weighs somewhat

against a stay. Fourth, as noted, this case risks burdening defendant Crespo’s

privilege against self-incrimination. No similar burden has been identified in

relation to the other defendants, who have not been criminally charged. This

factor therefore weighs in favor of a stay, but only partially. Finally, the

interests of this Court and the public interest are largely neutral.

Given that there are factors pulling in both directions, and a certain

amount of COVID-related uncertainty, I find that the best course of action is to

deny the request for an outright stay. I will allow discovery to proceed on all

issues except for those directly connected to the criminal case against Crespo.

Any deposition of Crespo himself or discovery of privileged matter will of course

be stayed. Nevertheless, there are undoubtedly many documents that can be

produced and depositions that can be taken without burdening Officer Crespo’s

right against self-incrimination. Issues as to whether particular items or

proceedings should be subject to the stay can be handled individually, without

a formal invocation of the privilege, to avoid any adverse inference. If at some

point an impasse is reached, a renewed motion for a stay may be appropriate.

Ideally, the criminal case will be completed within a reasonable amount of time;

in the interim, however, there is a real value in making whatever progress can

be made in this civil case, under the able supervision of the Magistrate Judge.

IV. CONCLUSION

For the reasons set forth above, the City defendants’ motion to dismiss

(DE 26) is GRANTED in part and DENIED in part. Specifically, the motion to

dismiss is granted with regard to all claims against Mayor Ras J. Baraka in his

personal capacity. The motion to dismiss is granted with regard to Count III

(policy), but denied as to Count III (custom). The motion is denied as to Count

IV (failure to discipline Officer Crespo), but otherwise granted as to the

remainder of Count IV. Finally, the motion to dismiss is granted as to Count

IX.

Defendants’ request to stay this case is DENIED as presented, with the

proviso that discovery shall proceed with respect to issues that do not implicate

Officer Crespo’s right against self-incrimination. A separate order will issue.

Dated: December 22, 2021

/s/ Kevin McNulty

___________________________________

Hon. Kevin McNulty

United States District Judge