MORALES v. COUNTY OF CAMDEN

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

NATASHA MORALES, No. 1:21-cv-11961-NLH-AMD

Plaintiff, OPINION

v.

COUNTY OF CAMDEN, et al.

Defendants.

APPEARANCES:

PETER M. KOBER

1864 RTE 70 EAST

CHERRY HILL, NJ 08003

On behalf of Plaintiff

JOHN T. STINSON, JR

DOJ-USAO

401 MARKET STREET, 4TH FLOOR

CAMDEN, NJ 08101

On behalf of the Marshal Defendants

Hillman, District Judge

This matter comes before the Court on the motion for

judgment on the pleadings by Mark Kemner, Vincent Schmidt,

Michael Biazzo, Stephen Bezich, Joseph Goonan, and Baruch Zepeda

(the “Marshal Defendants”). (ECF 27). Also before the Court is

the motion to dismiss the original Complaint by two of the

Marshal Defendants (ECF 13) and a motion by Plaintiff to file a

Second Amended Complaint (ECF 33). For the reasons expressed

below, the Court will grant the Marshal Defendants’ motion for

judgment on the pleadings, deny as moot the motion to dismiss

the original Complaint, and deny as futile Plaintiff’s motion to

file a Second Amended Complaint.

BACKGROUND

On October 11, 2019, around 6 a.m., a group of police

officers with the Camden County Sheriff’s Office and the Marshal

Defendants, several Special Deputy United States Marshals,

executed a search warrant issued by a New Jersey state court at

Apartment 1, 324 N. 37th Street, Pennsauken, New Jersey. (ECF

26 at 8). The warrant stated that there was probable cause to

believe that there was evidence of drug distribution in the

apartment. (ECF 26-1 at 2). When the officers and the Marshal

Defendants entered the apartment, there were three occupants:

Natasha Morales (“Plaintiff”), Joshua Calo, and Tyrell Rogers.

(See generally, ECF 16). Plaintiff and Rogers were sleeping in

the same room while Calo was sleeping in his own room. (ECF 26-

2 at 3).

The officers and the Marshal Defendants searched the

apartment and discovered a firearm in the room where Plaintiff

was sleeping. (Id.) They also found “ammunition with the

handgun they recovered; 33.5 ounces of what appeared to be

marijuana in one bedroom; 4.1 ounces of what appeared to be

marijuana in another bedroom; counterfeit currency, and various

amounts of United States currency, among other things.” (ECF 26

at 12). During the 10-minute search, Plaintiff and Rogers were

asked to sit in the living room which they did. (ECF 16 at 12).

Plaintiff alleges that she was handcuffed during the search.

(Id. at 14).

After finding the gun, one of the officers asked to whom it

belonged, and Rogers indicated that it was his. (Id. at 13).

Both Rogers and Calo were arrested on the scene. (Id. at 14).

At the conclusion of the search, Plaintiff was informed that she

would be taken to the police station for one hour while Calo and

Rogers were questioned. (Id. at 14-19). After the hour had

elapsed, Plaintiff was told that she was free to go and that no

criminal charges would be filed against her. (Id.)

Plaintiff initially filed this action on May 28, 2021.

(ECF 1). Two of the Marshal Defendants filed a motion to

dismiss the Complaint on August 19, 2021. (ECF 13). However,

before that briefing was completed, Plaintiff filed an Amended

Complaint.1 (ECF 16). The Amended Complaint contained eight

counts premised on Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971), 42 U.S.C. § 1983, and

the New Jersey Civil Rights Act, N.J. Stat. Ann. § 10:6-1, et

1 Because the Amended Complaint now supersedes the original

Complaint, the Court will deny the August 19, 2021 motion to

dismiss (ECF 13) as moot.

seq., (“NJCRA”). On November 1, 2021, the Marshal Defendants

answered the Amended Complaint (ECF 26) and moved for judgment

on the pleadings on all the counts against them.2 (ECF 27). On

December 6, 2021, Plaintiff filed a motion to file a Second

Amended Complaint to address the arguments in the motion for

judgment on the pleadings.3 (ECF 33). The Court considers the

pending motions against this factual background.

DISCUSSION

A. Subject Matter Jurisdiction

This Court exercises subject matter jurisdiction over this

matter pursuant to 23 U.S.C. § 1331 and § 1367.

B. Legal Standard of a Motion for Motion to Dismiss and

Judgment on the Pleadings

A motion for judgment on the pleadings is governed by Rule

12(c). Ellaisy v. City of Atl. City, 2021 WL 4473139, at *2 n.4

(D.N.J. Sept. 30, 2021). Fed. R. Civ. P. 12(c) states that

“[a]fter the pleadings are closed—but early enough not to delay

2 On November 9, 2021, the parties stipulated to a dismissal of

all the other defendants in the case except for defendant

Timothy Houck. (ECF 29).

3 Plaintiffs’ Amended Complaint does not plead the involvement of

the Marshal Defendants in Counts V and VIII, which allege the

promulgation of an unlawful policy by an official of Camden

County, Camden County, and the Camden County Sheriff’s Office.

(ECF 16 at 23-24, 25-26). The Court does not perceive that

Plaintiff is trying to state a claim against the Marshal

Defendants in those Counts, but even if she were, for the

reasons expressed below, they would be dismissed.

trial—a party may move for judgment on the pleadings.” In

analyzing a Rule 12(c) motion, a court applies the same legal

standards as applicable to a motion filed pursuant to Rule

12(b)(6). Turbe v. Gov’t of V.I., 938 F.2d 427, 428 (3d Cir.

1991). Therefore, in analyzing the motion for judgment on the

pleadings, the Court will proceed in its analysis in the same

fashion as it would for a motion to dismiss based on Rule

12(b)(6).

When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted

pursuant to Federal Rule of Civil Procedure 12(b)(6), a court

must accept all well-pleaded allegations in the complaint as

true and view them in the light most favorable to the plaintiff.

Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well

settled that a pleading is sufficient if it contains “a short

and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a

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 will not do . . . .” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)

(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,

47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,

40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)).

To determine the sufficiency of a complaint, a court must

take three steps: (1) the court must take note of the elements a

plaintiff must plead to state a claim; (2) the court should

identify allegations that, because they are no more than

conclusions, are not entitled to the assumption of truth; and

(3) when there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief. Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 664, 675, 679 (2009)) (alterations,

quotations, and other citations omitted).

A district court, in weighing a motion to dismiss, asks

“not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claim.”

Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416

U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our

decision in Twombly expounded the pleading standard for ‘all

civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in

the coffin for the ‘no set of facts’ standard that applied to

federal complaints before Twombly.”). “A motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough

facts to state a claim to relief that is plausible on its

face.’” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at

570).

A court in reviewing a Rule 12(b)(6) motion must only

consider the facts alleged in the pleadings, the documents

attached thereto as exhibits, and matters of judicial notice.

S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,

181 F.3d 410, 426 (3d Cir. 1999). A court may consider,

however, “an undisputedly authentic document that a defendant

attaches as an exhibit to a motion to dismiss if the plaintiff’s

claims are based on the document.” Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.

1993). If any other matters outside the pleadings are presented

to the court, and the court does not exclude those matters, a

Rule 12(b)(6) motion will be treated as a summary judgment

motion pursuant to Rule 56. Fed. R. Civ. P. 12(b).

C. Analysis

a. Counts I and II: Bivens Claims for Unreasonable

Duration of Arrest and False Arrest

Plaintiff alleges that the Marshal Defendants violated her

Fourth Amendment rights by detaining her for ten minutes while

they searched her apartment and transporting her to the police

station and holding her for an additional hour. She invokes

this Court's jurisdiction under Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), which

created an implied cause of action based on a violation of the

Fourth Amendment by federal officers.

In Ziglar v. Abbasi, the Supreme Court concluded “that

expanding the Bivens remedy is now a ‘disfavored’ judicial

activity.” ––– U.S. ––––, 137 S. Ct. 1843, 1857, 198 L.Ed.2d 290

(2017). It held that federal courts should exercise caution

before extending the remedy to claims that are meaningfully

different than “the three Bivens claims the Court has approved

in the past: a claim against FBI agents for handcuffing a man in

his own home without a warrant; a claim against a Congressman

for firing his female secretary; and a claim against prison

officials for failure to treat an inmate's asthma.” Id. at 1860

(citing Bivens, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619;

Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846

(1979); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64

L.Ed.2d 15 (1980)). “These three cases — Bivens, Davis, and

Carlson — represent the only instances in which the Court has

approved of an implied damages remedy under the Constitution

itself.” Ziglar, 137 S. Ct. at 1855.

“Ziglar created a funnel through which plaintiffs alleging

constitutional violations by federal officials must pass. First,

federal courts must determine whether the cause of action

presents a ‘new context’ for Bivens cases.” Alexander v. Ortiz,

No. 15-6981, 2018 WL 1399302, at *4 (D.N.J. Mar. 20, 2018). “The

proper test for determining whether a case presents a new Bivens

context is as follows. If the case is different in a meaningful

way from previous Bivens cases decided by this Court, then the

context is new.” Ziglar, 137 S. Ct. at 1859.

First, the Court must decide whether Plaintiff’s claims

fall under one of the three categories already sanctioned by the

Supreme Court as Bivens-type actions. The Court holds that they

do not. In Bivens, the allegation was that the federal officer

searched the plaintiff’s home without a warrant, applied

excessive force, and arrested him without probable cause.

Bivens, 403 U.S. 388 at 389. Plaintiff contends that the

federal officers violated her Fourth Amendment rights “[b]y

prolonging the detention of Plaintiff for the purpose of

investigation, rather than for the safety of officers or the

public, without her consent, and without probable cause, by

transporting her from Apartment 1 and holding her at the

Sheriff’s Office, Defendants. . . violated her right under the

Fourth Amendment.” (See ECF 16 at 21).

Unlike in Bivens, the law enforcement officers here had a

warrant to search Plaintiff’s apartment and there is no

allegation of excessive force. Even assuming as true for this

part of the Bivens analysis that there was no probable cause for

Plaintiff’s transportation and detention, the existence of a

lawful warrant for the initial search and the execution of that

warrant leading to the seizure of contraband within Plaintiff’s

living space places this case well out of the ambit of Bivens.

Plaintiff’s claims also clearly do not fit under the umbrella of

the other two cases in which the Supreme Court sanctioned

damages against federal officers, Davis and Carlson, as there

are no allegations that approximate a firing because of sex or a

prison official’s refusal to provide an inmate with medical

care. Davis, 442 U.S. at 230-31; Carlson, 446 U.S. at 16-17.

Thus, the Court holds that Plaintiff’s claims are meaningfully

different from Bivens, Davis, and Carlson.

Because Plaintiff’s facts present a meaningfully different

situation, the Court must decide whether expansion of the Bivens

doctrine is appropriate here. The Court must now consider

whether alternative remedies exist for Plaintiff's claim. “[I]f

there is an alternative remedial structure present in a certain

case, that alone may limit the power of the Judiciary to infer a

new Bivens cause of action.” Ziglar, 137 S. Ct. at 1858. The

most obvious alternative remedial scheme that the Court

considers is The Federal Tort Claims Act, 28 U.S.C. §§ 1346,

2671 et seq, (“FTCA”). The Third Circuit has made clear that

the FTCA’s waiver of sovereign immunity does not extend to

intentional torts such as those arising out of allegations of

false imprisonment or arrest. Vanderklok v. United States, 868

F.3d 189, 202 (3d Cir. 2017) (noting that the FTCA does not

provide relief for “any claim arising out of assault, battery,

false imprisonment, false arrest, malicious prosecution, abuse

of process, libel, slander, misrepresentation, deceit, or

interference with contract rights”) (internal alterations

omitted). That said, the FTCA allows such claims to survive

where such claims are directed at investigative or law

enforcement officers. Id. at 202–03 (noting that under §

2680(h), the FTCA will allow a cause of action “‘with regard to

acts or omissions of investigative or law enforcement officers

of the United States Government,’” for any claim arising “‘out

of assault, battery, false imprisonment, false arrest, abuse of

process, or malicious prosecution.’”) Plaintiff clearly could

have brought her claims under the FTCA.

Next, the Court must consider whether there are special

factors counselling against extending the Bivens remedy to the

new cause of action. “The Supreme Court did not define the

phrase ‘special factors counselling hesitation.’ ‘The necessary

inference, though, is that the inquiry must concentrate on

whether the Judiciary is well suited, absent congressional

action or instruction, to consider and weigh the costs and

benefits of allowing a damages action to proceed.’” Alexander v.

Ortiz, 2018 WL 1399302, at *7 (D.N.J. Mar. 20, 2018) (quoting

Ziglar, 137 S. Ct. at 1857-58). There are such factors at play

here.

Ziglar noted that Bivens is not “a proper vehicle for

altering an entity's policy.” Ziglar, 137 S. Ct. at 1860. That

is effectively what Plaintiff is trying to do as her Amended

Complaint specifically points to a grievance with the policy

that led to her detention. (ECF 16 at 19) (indicating a

grievance with the policy that “officers may take persons, who

are present at an active scene including an active

search warrant scene, to the station house for purposes of

further investigation, when those persons may have some further

value for investigative purposes of the officer or of the

department or may be suspected of being a safety risk to

officers or the public, or of having engaged in criminal

activity”).

Further, allowing individuals to sue the federal government

every time they were detained in connection with an

investigation, where there was a valid warrant which led to

evidence warranting additional investigation and no allegation

of excessive force would create a huge financial burden on the

government. F.D.I.C. v. Meyer, 510 U.S. 471, 486, 114 S.Ct.

996, 127 L.Ed.2d 308 (1994) (declining to extend Bivens to

federal agencies based in part on potential financial burden).

Having reviewed Plaintiff's claims under the Ziglar framework,

the Court concludes that it would be inappropriate to extend the

Bivens remedy to the facts of this case.

Finally, even if the Court were to extend Bivens to this

context, Plaintiff has not plausibly alleged a Fourth Amendment

violation. Accepting that the investigative detention here

constituted a seizure under the Fourth Amendment, Plaintiff’s

allegations in the Amended Complaint fail to plausibly allege

the absence of probable cause. Plaintiff concedes that a gun

was found as a result of the search in the room where she was

sleeping. (ECF 34 at 14-15). The Marshal Defendants’ answer

also reveals that the search yielded ammunition, counterfeit

currency, and various amounts of United States currency. (ECF

26 at 12); Vaccaro v. Amazon.com.dedc, LLC, 2019 WL 1149783, at

*1 n.1 (D.N.J. Mar. 13, 2019) (“While Plaintiff argues that the

Court cannot consider anything outside of her Complaint, on a

Rule 12(c) motion, however, the factual allegations in the

Answer are also taken as true to the extent they have not been

denied or do not conflict with the Complaint.”) Indeed,

Plaintiff does not dispute that those items were found during

the search. (ECF 34 at 14-15).

Looking at the face of the pleadings, Plaintiff has not

plausibly plead that the Marshal Defendants lacked probable

cause to detain and transport her. “[P]robable cause to arrest

exists when the facts and circumstances within the arresting

officer's knowledge are sufficient in themselves to warrant a

reasonable person to believe that an offense has been or is

being committed by the person to be arrested.” Dempsey v.

Bucknell Univ., 834 F.3d 457, 467 (3d Cir. 2016). In her

opposition brief to the instant motion, Plaintiff argues that

none of the contraband was found on her side of the bedroom and

that the other occupant of the room admitted that it was his

gun. (ECF 34 at 13-15). She argues that these facts show that

the contraband could not have belonged to her (Id.) This

argument is unavailing.

First, that the other occupant of Plaintiff’s room stated

that the gun was his does not mean that the Marshal Defendants

did not have probable cause in that moment to believe that

Plaintiff could have possessed it as well when it was found in

her bedroom. See D.O. ex rel. C.O. v. Borden, 804 F. Supp. 2d

210, 222 (D.N.J. 2011) (“Probable cause exists when the totality

of facts and circumstances are sufficient to warrant an ordinary

prudent officer to believe that the party charged has committed

an offense.”) Second, the Marshal Defendants found drugs,

counterfeit currency, and cash in Plaintiff’s room. (ECF 26 at

12). Third, the allegations regarding what side of the room the

Marshal Defendants found the items are not in the Amended

Complaint; they are in Plaintiff’s proposed Second Amended

Complaint. (See ECF 33).

Even if those allegations were in the Amended Complaint,

they do not mean, even when accepted as true, that the Marshal

Defendants lacked probable cause, especially where they would

not have reason to know where in the room Plaintiff kept her

personal items. “The standard does not require that officers

correctly resolve conflicting evidence or that their

determinations of credibility, were, in retrospect, accurate.”

Dempsey, 834 F.3d at 467 (internal alterations omitted) (citing

Wright v. City of Phila., 409 F.3d 595, 603 (3d Cir. 2005)).

Therefore, the Court perceives no violation of Plaintiff’s

Fourth Amendment rights based on the pleadings. For purposes of

maintaining Bivens claims, Plaintiff has not pled a violation of

her Fourth Amendment rights, let alone one already recognized by

the Supreme Court or within the zone of a reasonable expansion

of the Bivens remedy.

To hold otherwise would undermine the Supreme Court’s

admonishment in Ziglar “that expanding the Bivens remedy is now

a ‘disfavored’ judicial activity” by rendering endless second

guessing by the federal courts of a plethora of investigative

steps taken after the execution of a valid warrant leads to

evidence of a crime. Therefore, the Court will grant judgment

in favor of the Marshal Defendants on Counts I and II.

b. Count III, IV, VI, VII for Violation of § 1983 and the

NJCRA.

Counts III and IV premised on § 1983 and Counts VI and VII,

premised on the NJCRA must be dismissed for much the same reason

as Counts I and II. Namely, Plaintiff has not plausibly alleged

on the face of the Amended Complaint that the Marshal Defendants

violated her Fourth Amendment rights by detaining and

transporting her without probable cause. The Marshal Defendants

argue that they are entitled to qualified immunity with respect

to the § 1983 claims and that Plaintiff cannot sue federal

actors under § 1983 or the NJCRA. (ECF 27-2 at 27-37). The

Court will resolve the matter on much simpler grounds: even

assuming that the Marshal Defendants were state actors subject

to § 1983 and not federal agents subject to a Bivens claim,4

4 The Marshal Defendants cannot be liable under both Bivens and §

1983. As a factual matter, the Marshal Defendants were either

federal actors liable under Bivens or state actors subject to

claims under § 1983. Of course, a plaintiff may plead

alternative theories. Doherty v. The Hertz Corp., 2010 WL

4883487, at *6 (D.N.J. Nov. 24, 2010) (“[A] plaintiff may plead

alternative and inconsistent legal causes of action arising out

of the same facts.”). Here, the Court need to not reach

Defendants’ argument that they are “federal actors” not “state

actors” and thus cannot be held liable under § 1983 or the NJCRA

since Plaintiff has not adequately pled violation of a

constitutional right. The Court notes, though, that federal

employees may be considered state actors when they effectively

are working as part of a state law enforcement unit. See

Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d

Cir. 1999) (“A person may be found to be a state actor when (1)

he is a state official, (2) he has acted together with or has

obtained significant aid from state officials,” or (3) his

conduct is, by its nature, chargeable to the state.”) (internal

Plaintiff has not plausibly plead a violation of a

constitutional right.

This district analyzes claims brought under § 1983 and the

NJRCA under the same standard. Hottenstein v. City of Sea Isle

City, 977 F. Supp. 2d 353, 365 (D.N.J. 2013), amended, 2013 WL

12152481 (D.N.J. Oct. 16, 2013) (“[T]he NJCRA and § 1983, when

pled together, are analyzed under the same standard; first, the

Defendant must have acted under color of state law, and second,

the Defendant must have violated a constitutional right.”);

Conte v. Goodwin, 2021 WL 141337, at *7 (D.N.J. Jan. 15, 2021)

“Because the standard under the New Jersey Constitution is the

same as that under the United States Constitution, the Court

will interpret Plaintiff's NJCRA claims analogously to his §

1983 claims.”)

To state a claim under § 1983, a plaintiff must allege a

violation of a constitutional right. Ingram v. Warden, 2010 WL

5317368, at *3 (D.N.J. Dec. 17, 2010) (“A plaintiff may have a

cause of action under 42 U.S.C. § 1983 for certain violations of

his constitutional rights.”) As stated above, Plaintiff bases

quotation marks omitted); Adams v. Springmeyer, 2012 WL 1865736,

at *5 (W.D. Pa. May 22, 2012) (applying the Angelico analysis to

an agent with the FBI and finding that where it was alleged that

the agent was acting on a state warrant and that the agent was

actually employed by the municipality and only was working on an

FBI task force through her municipal employment, the agent could

be considered a state actor).

her § 1983 and NJCRA claims on violation of the Fourth

Amendment. Such claims necessarily require that the plaintiff

show that they were detained or arrested without probable cause.

Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 918, 197 L. Ed.

2d 312 (2017) (“The Fourth Amendment prohibits government

officials from detaining a person in the absence

of probable cause.”); Dixon v. Williams, 2015 WL 5695923, at *5

(M.D. Pa. Sept. 28, 2015) (“A claim for unlawful detention under

the Fourth Amendment requires plaintiff to establish that he was

subjected to a Fourth Amendment seizure (whether it be a formal

arrest or prolonged detainment), without probable cause.”)

(internal alterations omitted).

For the same reasons that the Court holds that there was no

constitutional violation such that Plaintiff’s Bivens claims

could proceed, it equally holds here, that Plaintiff’s claims

under § 1983 and the NJCRA must be dismissed. Specifically, the

fact that the Marshal Defendants found a gun, counterfeit money,

drugs, and cash in Plaintiff’s bedroom makes it reasonable for

them to have believed that Plaintiff had committed a crime and

to detain her to investigate further. United States v. Brooks,

48 F. App'x 837, 841 (3d Cir. 2002) (noting that the discovery

of drugs, cash, and weapons are strong evidence of drug

distribution). Because the Court finds that Plaintiff has not

alleged a violation of a constitutional right, it need not

address the Marshal Defendants’ argument that they are entitled

to qualified immunity.

c. Further Amendment to the Amended Complaint Would Be

Futile

District courts “should freely give leave to amend when

justice so requires.” Schomburg v. Dow Jones & Co., 504 F. App'x

100, 103 (3d Cir. 2012) (citing Rule 15(a)(2)) (internal

alterations omitted). “Thus, leave to amend ordinarily should

be denied only when amendment would be inequitable or futile.”

(Id.) “[T]hese principles apply equally to pro se plaintiffs

and those represented by experienced counsel.” Alston v.

Parker, 363 F.3d 229, 235 (3d Cir. 2004). “Futility ‘means that

the complaint, as amended, would fail to state a claim upon

which relief could be granted.’” Burtch v. Milberg Factors,

Inc., 662 F.3d 212, 231 (3d Cir. 2011) (quoting Great W. Mining

& Min. Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir.

2010)). Courts have held amendment to be inequitable where the

plaintiff already had an opportunity to amend the complaint.

Lake v. Arnold, 232 F.3d 360, 374 (3d Cir. 2000) (“[W]e are

inclined to give the District Court even broader discretion

when, as here, the court has already granted the requesting

party an opportunity to amend its complaint.”); McMahon v.

Refresh Dental Mgmt., LLC, 2016 WL 7212584, at *11 (W.D. Pa.

Dec. 13, 2016) (“The court need not provide endless

opportunities for amendment, especially where such

opportunity already has been enjoyed.”) (internal alterations

and quotation marks omitted).

Here, the Court holds that amendment would be futile

because Plaintiff’s proposed Second Amended Complaint still

fails to state a plausible claim. Plaintiff’s main contention

is that her proposed Second Amended Complaint pleads facts that

shows that the Marshal Defendants did not have probable cause to

detain her. (ECF 37 at 9-12). The proposed amendments include

new allegations that all the contraband seized was found on

Rogers’ side of the bedroom, not hers. (ECF 33 at 10-11). She

also adds that there was a safe on Rogers’ side of the room and

that she did not know its contents. (Id.) She alleges that the

counterfeit money found was merely being used for “video props.”

(Id.) Plaintiff also adds some irrelevant facts about the

number of rooms in the apartment and their layout and a

description of the contraband. (Id.) Further, Plaintiff

includes an allegation that the purpose of the search warrant

was “incriminating evidence for the crime of distribution of

controlled dangerous substances.” (Id. at 12). Finally,

Plaintiff explicitly adds language that the Marshal Defendants

worked for the U.S. Marshals and that they should have

questioned her, Rogers, and Calo further while on the scene.

(Id. at 22-23).

Nothing in these new statements plausible alleges that the

Marshal Defendants lacked probable cause to detain her. As

explained above, probable cause must be measured based on the

“totality of facts and circumstances” that are before “an

ordinary prudent officer.” See Borden, 804 F. Supp. 2d at 222

(“Probable cause exists when the totality of facts and

circumstances are sufficient to warrant an ordinary prudent

officer to believe that the party charged has committed an

offense.”) Plaintiff has not cited a single case that

undermines this proposition or that shows that the officers

acted unreasonably based on these facts. (See generally ECF 37-

1). Plaintiff has already had a chance to amend her complaint

in this action. Her proposed second bite at the apple also

comes up short. The Court will deny Plaintiff’s motion to file

a Second Amended Complaint on the ground that leave to do so

would be futile.5

CONCLUSION

For the reasons stated above, the Court will grant the

Marshal Defendants’ motion for judgment on the pleadings. (ECF

27). The Court will deny the motion to dismiss filed prior to

the filing of the Amended Complaint as moot. (ECF 13). Finally,

5 The Court notes that Plaintiff failed to file a brief or a

statement that no brief was necessary with its motion to amend

as is required under the Local Rules. L. Civ. Rule 7.1(d); (ECF

33).

the Court will not grant Plaintiff leave to amend because the

facts as already alleged demonstrate that Plaintiff can plead no

state of facts that her relatively brief investigative detention

violated the Fourth Amendment. Accordingly, any additional

amendment would be futile. (ECF 33); Reardon v. New Jersey, 2015

WL 105195, at *1 (D.N.J. Jan. 7, 2015) (“Amendment of the

complaint is futile if the amendment will not cure the

deficiency in the original complaint or if the amended complaint

cannot withstand a renewed motion to dismiss.)

An appropriate Order will be entered.

Date: March 5, 2022 /s Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.