CASCIANO v. CITY OF PATERSON

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ANDREW CASCIANO,

Plaintiff,

v. Civil Action No. 19-9475

OPINION

CITY OF PATERSON, PATERSON POLICE

DEPARTMENT, RUBEN MCAUSLAND,

Individually and under color of State law,

ROGER THEN, Individually and under color of

State law, TROY OSWALD, CHIEF OF

POLICE OF THE PATERSON POLICE

DEPARTMENT, Individually and under color of

State law, JERRY SPEZIALE, POLICE

DIRECTOR FOR THE PATERSON POLICE

DEPARTMENT, Individually and under color of

State law, JOHN DOES 1-5 AND ABC

ENTITIES 1-5 (as yet unknown and unidentified

jail officials, supervisors, agents or employees or

entities),

Defendants.

John Michael Vazquez, U.S.D.J.

This action arises out of the assault of Plaintiff Andrew Casciano (“Casciano”), now

deceased, by two former officers of the Paterson Police Department. Presently before the Court is

a motion to dismiss the Amended Complaint (“AC”) by the City of Paterson, the Paterson Police

Department, Paterson Police Chief Troy Oswald, and Paterson Police Director Jerry Speziale

(“Defendants” or the “City”). D.E. 51. Marie Casciano, Casciano’s mother and the Administratrix

ad Prosequendum of the Estate of Andrew Casciano (“Plaintiff”), opposed the motion, D.E. 54, to

Defendants replied, D.E. 59. The Court reviewed the parties’ submissions1 made in support and

in opposition and decided the motion without oral argument pursuant to Fed. R. Civ. P. 78(b) and

L. Civ. R. 78.1(b). For the reasons stated below, Defendants’ motion is GRANTED in part and

DENIED in part.

I. BACKGROUND2

On March 5, 2018, Casciano placed an emergency call to 911 for assistance after he

attempted suicide. AC ¶ 20. Defendants Ruben McAusland and Roger Then, then Paterson Police

Department officers, went to St. Joseph’s hospital in response. Id. ¶ 22. While Casciano was in a

wheelchair in the St. Joseph’s emergency room, McAusland punched Casciano in the face and

Then pushed him to the ground. Id. ¶¶ 23-24. Casciano was subsequently placed in a patient

room, where McAusland struck Casciano twice across the face while he was lying in a hospital

bed. Id. ¶ 25. McAusland’s assault of Casciano was recorded by Then on his phone.

McAusland and Then were criminally charged for their misconduct against Casciano and

pled guilty to violations of federal law. Id. ¶¶ 44-46. During his sentencing, McAusland “spoke

of his repeated acts of unlawful conduct” during the three years he was employed by the Paterson

Police Department prior to his assaulting Casciano. Id. ¶ 45. Videos of Casciano’s assault were

shown during McAusland’s sentencing, and the videos later went viral. Id. ¶ 47. During his

sentencing, Then told the court that he had requested to be transferred away from working with

McAusland but his requests were denied. Id. ¶ 46.

1 Defendants’ brief in support of its motion to dismiss (D.E. 51-1) will be referred to as “Br.”;

Plaintiff’s opposition brief (D.E. 54) will be referred to as “Opp.”; and Defendants’ letter in reply

(D.E. 59) will be referred to as “Reply.”

2 The factual background is taken from the Amended Complaint (“AC”), D.E. 47. When reviewing

a motion to dismiss, the Court accepts as true all well-pleaded facts in the complaint. Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

On April 10, 2019, Casciano commenced the present action against the City and

Defendants McAusland and Then. D.E. 1. On June 28, 2019, the City filed a motion to dismiss,

D.E. 10, which was not decided. On December 23, 2019, Casciano committed suicide, and his

body was discovered by his mother. Id. ¶ 47. Casciano left a note attributing his suicide to the

underlying lawsuit arising from McAusland and Then’s assault. Id. ¶ 100.

On January 10, 2021, Plaintiff moved for leave to amend the Complaint to include claims

under the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1 et seq. (“Wrongful Death Act”) and

the New Jersey Survivor’s Act, N.J.S.A. 2A:15-3 (“Survivor’s Act”), D.E. 42, which Defendants

opposed, D.E. 43. Judge Falk granted Plaintiff’s motion for leave to amend, D.E. 46, which this

Court upheld on appeal, D.E. 73. On June 16, 2021, Plaintiff filed her Amended Complaint. D.E.

47. The Amended Complaint asserts claims by Marie Casciano in her capacity as Administratrix

ad Prosequendum of the Estate of Andrew Casciano and in her individual capacity. Id. Plaintiff

brings claims pursuant to 42 U.S.C. § 1983 and the New Jersey Civil Rights Act (“NJCRA”), torts

claims, along with the Wrongful Death Act and Survivor’s Act claims. Id. The current motion

followed. D.E. 51.

II. STANDARD OF REVIEW

Defendants move to dismiss the Complaint for failure to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). For a complaint to survive dismissal under Rule 12(b)(6),

it must contain sufficient factual matter to state a claim that is plausible on its face. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Further, a

plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery will uncover

proof of her claims.” Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016). In

evaluating the sufficiency of a complaint, district courts must separate the factual and legal

elements. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). A court “must

accept all of the complaint’s well-pleaded facts as true.” Id. at 210. However, “‘[t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice’” to state a plausible claim. Feingold v. Graff, 516 F. App’x 223, 226 (3d Cir. 2013)

(quoting Iqbal, 556 U.S. at 678).

III. ANALYSIS

A. Claims Against the Paterson Police Department

At the outset, Defendants argue that Plaintiff’s claims against the Paterson Police

Department should be dismissed because police departments are city subdivisions rather than

separate entities. Br. at 12-13 (citing Padilla v. Twp. Of Cherry Hill, 110 F. App’x 272, 278 (3d

Cir. 2004)). Plaintiff does not object to dismissing the claims against Paterson Police Department

on this basis. Opp. at 3. Consequently, the claims against the Paterson Police Department are

dismissed with prejudice. See Hernandez v. Borough of Palisades Park Police Dep’t, 58 F. App’x

909, 912 (3d Cir. 2003) (“Police departments cannot be sued alongside municipalities because a

police department is merely an administrative arm of the municipality itself.”).

B. Monell and New Jersey Civil Rights Act Claims

Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 and the New Jersey Civil Rights Act

(“NJCRA”). AC ¶¶ 48-70. Section 1983, in relevant part, provides as follows:

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

custom, or usage, of any State or Territory or the District of

Columbia, 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[.]

42 U.S.C. § 1983. Section 1983 does not provide substantive rights; rather, Section 1983 provides

a vehicle for vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-

94 (1989). To state a Section 1983 claim, a plaintiff must demonstrate that “(1) a person deprived

him of a federal right; and (2) the person who deprived him of that right acted under color of state

or territorial law.” Burt v. CFG Health Sys., No. 15-2279, 2015 WL 1646849, at *2 (D.N.J. Apr.

14, 2015).

The NJCRA affords a private cause of action to

[a]ny person who has been deprived of any substantive due process

or equal protection rights, privileges or immunities secured by the

Constitution or laws of the United States, or any substantive rights,

privileges or immunities secured by the Constitution or laws of this

State, or whose exercise or enjoyment of those substantive rights,

privileges or immunities has been interfered with or attempted to be

interfered with, by threats, intimidation or coercion by a person

acting under color of law.

N.J.S.A. 10:6-2. The “NJCRA was modeled after § 1983, [so] courts in New Jersey have

consistently looked at claims under the NJCRA through the lens of § 1983 and have repeatedly

construed the NJCRA in terms nearly identical to its federal counterpart.” Velez v. Fuentes, No.

15-6939, 2016 WL 4107689, at *5 (D.N.J. July 29, 2016) (internal quotations and citation

omitted). Therefore, the Court considers Plaintiff’s Section 1983 and NJCRA claims together.

A municipality or local governing body cannot be held liable under a theory of respondeat

superior for a Section 1983 claim. Monell v. Dept. of Social Servs. of N.Y.C., 436 U.S. 658, 691

(1978). Instead, a municipality may be liable under Section 1983 only “if the plaintiff identifies a

municipal ‘policy’ or ‘custom’ that was the ‘moving force’ behind the injury.” Jewell v. Ridley

Township, 497 F. App’x 182, 185 (3d Cir. 2012) (quoting Monell, 436 U.S. at 694).3 A policy

exists “when a decisionmaker possessing final authority to establish municipal policy with respect

to the action’ issues an official proclamation, policy, or edict.” Watson v. Abington Twp., 478 F.3d

144, 155 (3d Cir. 2007) (internal quotation and alteration omitted). A custom may be established

“by showing that a given course of conduct, although not specifically endorsed or authorized by

law, is so well-settled and permanent as virtually to constitute law.” Id. at 155-56 (internal

quotation omitted). Ultimately, to plausibly plead Monell liability, “[a] plaintiff must identify the

challenged policy, attribute it to the [municipality] itself, and show a causal link between execution

of the policy and the injury suffered.” Kranson v. Valley Crest Nursing Home, 755 F.2d 46, 51

(3d Cir. 1985) (internal citation and quotation marks omitted).

A Monell claim may also be premised on a municipality’s failure to train, supervise, and

discipline. To plead such a failure-to claim, a plaintiff must demonstrate that a city’s failure

“reflects a deliberate or conscious choice.” Estate of Roman v. City of Newark, 914 F.3d 789, 798,

800 (3d Cir. 2019) (quoting Brown v. Muhlenberg Township, 269 F.3d 205, 215 (3d Cir. 2001)).

For claims involving police officers, the alleged failure can only serve as a basis for Section 1983

liability where it “amounts to deliberate indifference to the rights of persons with whom the police

come into contact.” Id. (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)); see also

Forrest v. Parry, 930 F.3d 93, 106 (3d Cir. 2019) (explaining that a Monell claim that is

“predicated on a failure or inadequacy has the separate, but equally demanding requirement of

demonstrating a failure or inadequacy amounting to deliberate indifference on the part of the

municipality”). Deliberate indifference is plausibly pled by showing that “(1) municipal policy

3 Claims asserting municipal liability pursuant to Section 1983 are commonly referred to as Monell

claims.

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.” Roman, 914 F.3d at 798 (quoting Doe

v. Luzerne County, 660 F.3d 169, 180 (3d Cir. 2011) (internal brackets omitted)). Moreover,

“‘[d]eliberate indifference’ is a stringent standard, requiring proof that a municipal actor

disregarded a known or obvious consequence of his action… Ordinarily, a pattern of similar

constitutional violations by untrained employees is necessary to demonstrate deliberate

indifference for purposes of failure to train.” Thomas v. Cumberland Cty., 749 F.3d 217, 223 (3d

Cir. 2014) (emphasis added) (internal quotations, citations, and brackets omitted).

Plaintiff essentially brings Monell claims premised on the City’s policy and custom and

alleged failure to properly hire, train, and supervise police personnel. Plaintiff alleges that the City

acted with “deliberate and conscious indifference” of Casciano’s constitutional rights by

maintaining “a pattern of custom, policy and practice” of “allowing the use of excessive force,

permitting and condoning the use of excessive force and violation of police procedures as well as

the failure to properly hire, train and supervise police officers in the proper conduct of their duties

and in the use of force.” AC ¶ 37. Plaintiff further claims that the City acted with deliberate and

conscious indifference by allowing McAusland to participate in police work while having prior

knowledge that he “he had improperly engage [sic] in illegal activities including in multiple drug

related transactions between September 2017 and the end of February 2018.” Id. ¶ 38. Plaintiff

continues that Defendants had knowledge of institutionalized practices of the Paterson Police

Department “consistent with” Casciano’s assault, and that despite this knowledge, Defendants did

not take action to prevent Paterson Police personnel from continuing to engage in misconduct. Id.

¶¶ 39-40. Additionally, Defendants allegedly “had prior notice of the vicious propensities” of

McAusland, Then, and John Does 1-5 but failed to train them or correct their abuse of authority.

Id. ¶ 41. Plaintiff further adds that the City “authorized, tolerated as institutionalized practices,

and ratified” officer misconduct by failing to discipline employees “known to be irresponsible in

their dealings with citizens of the community”; to take adequate precautions in hiring, promoting,

and retaining police personnel; to complete reports as required evidencing criminal acts committed

by police personnel; and to establish or assure a meaningful departmental system for dealing with

complaints of police misconduct. Id. ¶ 43.

Defendants argue that Plaintiff has not sufficiently pled Monell liability. Br. at 4-8.

Defendants appear to assert that Plaintiff has not alleged facts establishing a challenged policy or

custom, attributing that policy or custom to the municipality, and showing a causal link between

the execution of the policy or custom and the injury suffered. Id. at 4-5. Defendants further

contend that Plaintiff has not adequately plead a Monell claim for negligent training because she

has not demonstrated that the alleged failure to train amounted to deliberate indifference to the

rights of individuals with whom the police came into contact. Br. at 5-6. Similarly, Defendants

appear to assert that Plaintiff has not demonstrated deliberate indifference in relation to the City’s

failure to supervise. Id. at 7. Finally, Defendants contend that Plaintiff’s negligent hiring claim is

“tenuous and unfounded” because Plaintiff does not allege facts giving rise to a deliberate

indifference claim based on hiring practices or facts predating the hiring of McAusland and Then

of which the City should have been aware. Id. at 7-8.

The Court agrees that Plaintiff has failed to adequately plead her Monell claims. First,

Plaintiff alleges in a conclusory manner that the City maintained “a pattern of custom, policy and

practice” of excessive force and failure to properly hire, train, and supervise. AC ¶ 37. However,

Plaintiff does not specifically identify the allegedly unconstitutional policy or custom, attribute it

to the City, or explain the causal link between the execution of the policy and the injury suffered.

See Kranson, 755 F.2d at 51. Plaintiff’s “threadbare conclusion that Defendants acted pursuant to

an official policy or custom [is] insufficient to state a claim.” Florentino v. City of Newark, No.

19-CV-21055, 2020 WL 5105291, at *11 (D.N.J. Aug. 31, 2020) (finding that pleading standard

was not met where the plaintiff failed to identify with requisite specificity the allegedly

unconstitutional policy or custom or any decisionmaker with the requisite authority to establish

such policy or custom); see also Benjamin v. E. Orange Police Dep’t, 937 F. Supp. 2d 582, 595

(D.N.J. 2013) (dismissing claim against city because plaintiff failed to plead facts demonstrating

the existence of a policy or custom).

Likewise, Plaintiff has not sufficiently plead that the City’s alleged failure to hire, train,

and supervise amounted to deliberate indifference of Casciano’s constitutional rights. Plaintiff

alleges that the City allowed McAusland to participate in police work while having knowledge of

his participation in illegal drug-related transactions. AC ¶ 38. However, Plaintiff does not detail

how the City had contemporaneous knowledge of these illegal activities, see Reply at 2, or how

McAusland’s history of drug transactions relates to Casciano’s assault. Additionally, Plaintiff

claims that the City had prior notice of McAusland’s and Then’s “vicious propensities” and that

the officers were “known to be irresponsible in their dealings with citizens of the community,” AC

¶¶ 41, 43, but fails to provide any factual detail supporting these allegations. Similarly, Plaintiff

alludes to McAusland’s “repeated acts of unlawful conduct” prior to his assault of Casciano, id. ¶

45, but does not specify what this alleged unlawful conduct entailed. Without more, Plaintiff

cannot maintain Monell claims predicated upon deliberate indifference.4 See, e.g., Florentino v.

4 Plaintiff provides additional detail in her Opposition Brief, but “[i]t is axiomatic that the

complaint may not be amended by the briefs in opposition to a motion to dismiss.” Com. of Pa.

ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (internal quotation omitted).

City of Newark, 2020 WL 5105291, at *11-12 (dismissing Monell claims where the plaintiff failed

to adequately allege that the defendant’s failure to train amounted to deliberate indifference).

Further, regarding Plaintiff’s failure to hire claim, Plaintiff has not alleged any relevant facts

predating the hiring of McAusland and Then that would support a negligent hiring claim.

For the foregoing reasons, Plaintiff’s Monell and NJCRA claims are dismissed. As a result,

the Court does not reach Defendants’ qualified immunity argument on this issue.

C. Intentional Torts

Plaintiff asserts various torts claims, including false restraint and imprisonment (Count

Three), emotional distress (Count Four), abuse of process (Count Five), conspiracy (Count Six),

negligence (Count Seven) and negligent infliction of emotional distress (Count Nine). AC ¶¶ 77-

80. Defendants argue that municipal entities are not responsible for intentional torts under the

New Jersey Tort Claims Act (“NJTCA”), N.J.S.A. 59:2-2(a), and therefore the claims should be

dismissed. Br. at 11-12. Plaintiff argues that the City should not be shielded from vicarious

liability under the NJTCA for Then’s negligence in failing to intervene and McAusland’s and

Then’s negligence in filing a false police report because such acts were not intentional. Opp. at

24, 27. In so arguing, Plaintiff appears to concede that the City cannot be held vicariously liable

for intentional torts committed by McAusland and Then.

The NJTCA provides that “[a] public entity is not liable for the acts or omissions of a public

employee constituting a crime, actual fraud, actual malice, or willful misconduct.” N.J.S.A. 59:2-

10. Thus, “there can be no vicarious liability by a public entity for intentional torts committed by

its employees.” Hoag v. Brown, 397 N.J. Super. 34, 54 (App. Div. 2007). Accordingly, Plaintiff’s

false restraint and imprisonment claim must be dismissed as against the City. See Prunkel v. Cty.

of Bergen, Civ. Action No. 17-5154, 2017 WL 5483165, at *4 (D.N.J. Nov. 15, 2017) (dismissing

claims of false imprisonment, abuse of process, and civil conspiracy because a public entity cannot

be held liable for intentional torts allegedly committed by its employees). Likewise, Plaintiff’s

abuse of process claim against the City is dismissed. See id. The Court assumes that Plaintiff’s

“emotional distress” claim stated in Count Four, AC ¶¶ 77-80, alleges intentional infliction of

emotional distress, as Plaintiff states a separate cause of action for negligent infliction of emotional

distress, AC ¶¶ 98-101. Because Plaintiff’s emotional distress claim alleges an intentional tort, it

is dismissed as against the City. See Soto v. City of Newark, 72 F. Supp. 2d 489, 497 (D.N.J. 1999)

(dismissing intentional infliction of emotional distress claim against City of Newark because

public entities may not be held liable for intentional torts of its employees). Plaintiff alleges that

“Defendants unlawfully conspired to assault, commit battery upon, injure and deprive Andrew

Casciano of his rights,” AC ¶ 86. The Court assumes that Plaintiff alleges civil conspiracy, an

intentional tort, and dismisses this claim against the City for the same reasons stated above. See

Prunkel, 2017 WL 5483165, at *4.5

However, the Court rejects Defendants’ argument that Plaintiff’s causes of action for

negligence and negligent infliction of emotional distress are intentional torts for which the City is

not liable. See Lawson v. E. Orange Sch. Dist., Civ. A. No. 16-2704, 2017 WL 751425, at *2

(D.N.J. Feb. 27, 2017) (“[T]here is no respondeat superior liability for intentional torts as opposed

5 If the civil conspiracy relates to Section 1983, the Court would reach the same result. To prove

a civil conspiracy under Section 1983, a plaintiff must show “that two or more co-conspirators

reached an agreement for the purpose of depriving constitutional rights under color of state law.”

Stolinski v. Pennypacker, 772 F. Supp. 2d 626, 646 (D.N.J. 2011). The “linchpin for [Section

1983] conspiracy is agreement, concerted action, without more, cannot suffice to state a conspiracy

claim.” Watson v. Sec. Pa. Dept. of Corrections, 436 F. App’x 131, 137 (3d Cir. 2011) (internal

quotations and punctuation omitted). Here, Plaintiff alleges in a conclusory fashion that

“Defendants acted jointly and in concert with each other, and conspired and agreed between and

amongst themselves to commit unlawful assault, battery and violations of civil rights upon Andrew

Casciano.” AC ¶ 36. However, Plaintiff fails to provide any detail supporting the existence of an

agreement among the City, McAusland, and Then.

to negligence”) (emphasis added). Therefore, the Court next analyzes whether Plaintiff’s

negligence claims should be dismissed on other grounds.

D. Negligence and Negligent Infliction of Emotional Distress

Plaintiff alleges as to the City that “Defendants were negligent and acted in a palpably

unreasonable matter in their hiring and retention of Defendants McAusland and Then” because

they had knowledge that McAusland and Then “were unfit to serve as police officers.” AC ¶¶ 89-

90. Plaintiff alleges that due Defendants’ negligence, Casciano “sustained and received severe,

painful and permanent injuries,” resulting in pain and mental anguish, confinement, medical

expenses, and the interruption of Casciano’s normal business and vocation. Id. ¶ 92.

A plaintiff may assert a claim against an entity pursuant to the NJTCA based on a theory

of negligent hiring or supervision. Hoag, 397 N.J. Super. at 54. Accordingly, an employer may

be liable for the torts of its employees “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.” Di Cosala v. Kay, 91 N.J.

159, 173 (1982).

Though Defendants advance arguments in support of dismissing Plaintiff’s claim of

negligent hiring under Section 1983, see Br. at 7-8, they fail to offer a basis upon which to dismiss

Plaintiff’s state law negligence claim aside from the intentional tort argument that the Court

rejected above.6 Accordingly, the Court will not dismiss Plaintiff’s negligence claim.7

6 With regard to Plaintiff’s Wrongful Death Act claim, Defendants argue that they did not owe

Casciano a duty at the time of his suicide. Br. at 16. However, that inquiry is distinct from whether

Defendants owed Casciano a duty in relation to their hiring of McAusland and Then and the assault

of Casciano allegedly resulting from such negligent hiring.

7 Plaintiff fails to allege that the elements of a negligence claim are met, and thus her negligence

claim is not well-plead. See Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576,

Plaintiff also brings a claim in her individual capacity for negligent infliction of emotional

distress for the “mental anguish, suffering and shock” she experienced as a result of discovering

Casciano’s body following his suicide. AC ¶¶ 98-101. Again, Defendants fail to raise arguments

for dismissal of this claim aside from their contention that municipal entities are not responsible

for intentional torts.8 Thus, this claim also survives Defendants’ motion to dismiss.9

E. Wrongful Death and Survivorship Act

Plaintiff brings Wrongful Death Act and Survivorship Act claims, alleging that Casciano

“experienced great emotional distress from the assaults of March 5, 2018 and the publication of

videos of the assaults…which lead to a spiraling of his depression through the summer of 2019

and ultimately his suicide on December 23, 2019.” AC ¶ 95. The Wrongful Death Act confers a

cause of action “[w]hen the death of a person is caused by a wrongful act, neglect or default, such

as would, if death had not ensued, have entitled the person injured to maintain an action for

damages resulting from the injury.” N.J. Stat. Ann. § 2A:31–1.

594, 59 A.3d 561, 571 (2013) (“In New Jersey, as elsewhere, it is widely accepted that a negligence

cause of action requires the establishment of four elements: (1) a duty of care, (2) a breach of that

duty, (3) actual and proximate causation, and (4) damages.”). However, because Defendants do

not raise this issue, the Court will not dismiss Plaintiff’s negligence claim on this basis.

8 Although Defendants argue that they did not owe Casciano a duty at the time of his suicide,

Defendants advance no arguments regarding their duty to Plaintiff Marie Casciano in her

individual capacity. Accordingly, Defendants’ negligence arguments vis-à-vis Plaintiff’s

Wrongful Death Act claim do not apply to Plaintiff’s negligent infliction of emotional distress

claim.

9 As with the negligence claim, Plaintiff’s negligent infliction of emotional distress claim is not

sufficiently plead. See Jovic v. Legal Sea Foods, LLC, No. 16-CV-1586, 2018 WL 5077900, at

*6 (D.N.J. Oct. 18, 2018) (“To prove a claim of negligent infliction of emotional distress, a plaintiff

must establish: (1) a duty of care; (2) breach of that duty; (3) causation; and (4) damage in the form

of severe emotional distress that was reasonably foreseeable.”) (internal citation omitted).

“To assert a cause of action for wrongful death, Plaintiffs must assert (1) that Plaintiff's

death was caused by a wrongful act, and (2) that Plaintiff would have been able to maintain an

action for damages had he survived.” Gunter v. Twp. of Lumberton, Civ. No. 07-4839, 2012 WL

2522883, at *11 (D.N.J. June 29, 2012), aff'd, 535 F. App’x 144 (3d Cir. 2013). In other words, a

wrongful death claim must be predicated upon an underlying violation or tortious conduct. See,

e.g., Williams v. Ponik, Civ. A. No. 15-1050, 2019 WL 168827, at *16 (D.N.J. Jan. 11, 2019), aff'd

in part, vacated in part, 822 F. App’x 108 (3d Cir. 2020) (finding that the plaintiff’s wrongful

death and survival action claims failed because the plaintiff had not established any underlying

violation or tortious conduct); Gomez v. H&M Int’l Transportation, Inc., Civ. A. No. 17-231, 2017

WL 3951598, at *7 (D.N.J. Sept. 7, 2017) (upholding wrongful death and survival claims because

the plaintiff had sufficiently plead an underlying claim for negligence).

Here, Plaintiff does not specify the basis of the City’s alleged liability under the Wrongful

Death Act and Survivor’s Act. However, per the Court’s findings above, Plaintiff’s claim that the

City negligently hired and retained McAusland and Then is the only viable tortious conduct upon

which Plaintiff may base her wrongful death claim against the City. “In the wrongful death

context, as elsewhere, the tort of negligence has four essential elements: ‘(1) a duty of care, (2) a

breach of that duty, (3) actual and proximate causation, and (4) damages.’” Williams v. Bd. of

Educ. of Paterson, Civ. No. 15-0765, 2017 WL 3131974, at *3 (D.N.J. July 21, 2017) (quoting

Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406, 98 A.3d 1173, 1179 (2014)). Defendants

argue that Plaintiff’s wrongful death claim should be dismissed because Casciano’s suicide was

not a foreseeable consequence of excessive force; the City did not owe Casciano a duty at the time

of his suicide; and Casciano indicated that his suicide was a result of the lawsuit rather than being

assaulted. Br. at 13-17. Plaintiff counters that “[i]ssues of proximate cause, duty and whether

[Casciano’s] suicide was the result of the lawsuit, not the assault, are merits-based arguments…and

are for a jury to decide.” Opp. at 28.

The Court agrees with Plaintiff that “[o]rdinarily questions of proximate cause are left to

the jury for its factual determination.” Jakelsky v. Friehling, 33 F. Supp. 2d 359, 366 (D.N.J. 1999)

(internal citations omitted). However, under New Jersey law, “the question of whether a duty is

owed is a question of law to be decided by the court.” Port Auth. of New York & New Jersey v.

Arcadian Corp., 189 F.3d 305, 312 (3d Cir. 1999) (citing Strachan v. John F. Kennedy Mem’l

Hosp., 109 N.J. 523, 538 A.2d 346, 349 (1988)). Here, Plaintiff fails to allege with respect to her

wrongful death claim that the City owed Casciano a duty. Because Plaintiff fails to sufficiently

plead an element of an underlying negligence claim, Plaintiff’s wrongful death claim is dismissed.

See Est. of Moore v. Cumberland Cty., Civ. No. 17-2839, 2018 WL 1203470, at *5 (D.N.J. Mar.

8, 2018) (dismissing wrongful death claims because all of the elements of a negligence claim were

not pleaded in the complaint).

F. Damages for Pain and Suffering

Defendants argue that Plaintiff cannot recover damages for pain and suffering arising from

her state law claims. The NJTCA provides, in relevant part:

No damages shall be awarded against a public entity or public

employee for pain and suffering resulting from any injury; provided,

however, that this limitation on the recovery of damages for pain

and suffering shall not apply in cases of permanent loss of a bodily

function, permanent disfigurement or dismemberment where the

medical treatment expenses are in excess of $3,600.00.

N.J.S.A. 59:9-2(d). Defendants contend that “Plaintiff has not alleged any facts demonstrating a

permanent injury,” and thus may not recover for pain and suffering damages. Br. at 9. Plaintiff

responds that she may recover noneconomic loss for a displaced fracture, which Casicano suffered.

Opp. at 22. In support, Plaintiff cites to an inapposite case holding that a plaintiff may maintain a

suit for noneconomic losses for a displaced fracture under the New Jersey Automobile Insurance

Cost Reduction Act of 1998. /d. Because Plaintiff has not alleged the “permanent loss of a bodily

function, permanent disfigurement or dismemberment where the medical treatment expenses are

in excess of $3,600.00,” Plaintiff cannot maintain a claim for pain and suffering damages. See

K.M. v. Asbury Park Bd. of Educ., No. 18CV10171PGSTJB, 2020 WL 1234716, at *5 (D.N.J.

Mar. 12, 2020) (finding that dismissal of the plaintiffs negligence claims was additionally

warranted for failure to plead that the alleged negligence resulted in permanent injury).

IV. CONCLUSION

For the reasons set forth above, Defendants’ motion to dismiss is GRANTED in part and

DENIED in part. The dismissal is without prejudice and Plaintiff shall have thirty (30) days to

file a second amended complaint that cures the deficiencies noted herein. If Plaintiff does not file

an amended complaint within that time, the claims dismissed without prejudice will be dismissed

with prejudice. An appropriate Order accompanies this Opinion.

Dated: January 19, 2022

we, VO ©. NA\

Joht\Michael Vazquez, U.S(D/J.’

16