EDWARDS v. LINDENWOLD POLICE DEPARTMENT

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

RENÉ DALLAS EDWARDS, Civil Action No. 21-13076

Plaintiff,

OPINION

v.

LINDENWOLD POLICE DEPARTMENT,

et al.

Defendants.

APPEARANCES:

RENE DALLAS EDWARDS

411 E GIBBSBORO RD

APT 110

LINDENWOLD, NJ 08021

Plaintiff appearing pro se

HILLMAN, District Judge

Presently before the Court are Plaintiff’s Motions for

Recusal and Motions to Accept the Special Master Report and for

a Settlement Conference. (ECF No. 4, 6, and 8). In addition,

Plaintiff filed the Amended Complaint in response to the Court’s

Order dated July 22, 2021. (ECF No. 5). Since Plaintiff is

proceeding in forma pauperis (“IFP”), the Court will screen the

Amended Complaint as required by 28 U.S.C. § 1915 to determine

whether the action is frivolous or malicious, or if the Amended

Complaint fails to comply with the proper pleading standards.

For the reasons explained below, the Court will (1)

dismiss, in part, Plaintiff’s Amended Complaint without

prejudice and afford Plaintiff thirty (30) days to amend his

Amended Complaint to cure the deficiencies addressed in this

Opinion; and (2) deny without prejudice Plaintiff’s Motions for

Recusal and Motions to Accept the Special Master Report and for

a Settlement Conference.

BACKGROUND1

On or about February 8, 2021, at approximately 2:30 AM,

Plaintiff was driving his vehicle to take out the trash in his

apartment complex. (ECF No. 5 at 2.) At that same time, Chief

Lieutenant Heleston (“Heleston”), in a marked Lindenwold police

vehicle, pulled up behind Plaintiff as he began to travel

through his apartment complex. (Id. at 5 ¶7.) During this

time, Heleston did not turn on the flashing lights on his police

vehicle. (Id.) At some point after, Heleston entered

Plaintiff’s apartment by knocking down Plaintiff’s door. (Id.

at 5 ¶8.A.) Heleston had no warrant to enter Plaintiff’s

apartment. (Id.) At the time, Plaintiff was not running from

Defendant Heleston nor was Plaintiff committing a crime. (Id.)

1 The Court recites those facts alleged in the Amended Complaint.

When screening a complaint 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).

Plaintiff alleges that “[a]fter wrongfully battering Plaintiff

and causing him to sustain severe and permanent injury” Heleston

failed to assure Plaintiff received the appropriate medical

treatment. (Id. ¶9.) Around this time, Patrolman McDowell

(“McDowell”) and Adam Ericco (“Ericco”) were also present at the

scene and failed to assure Plaintiff received a medical

evaluation and treatment prior to leaving his apartment. (Id.

¶11.)

As a result of the foregoing, Plaintiff filed a complaint

against Defendants Heleston, McDowell, and Errico (collectively

“Individual Officers”), Michael P. McCarthy, Jr. (“McCarthy”),2

2 The Amended Complaint asserts three allegations against

McCarthy. First, Plaintiff contends McCarthy “who bare, bare

[sic] responsibility to file criminal charges on the plaintiff

behalf of this misconduct of stoping [sic] black americans to

pray on Sundays in their own home (New Jersey) Department as one

of its executive branches.” (ECF No. 5 at 7 ¶ 14). However,

it is not McCarthy who decides whether to institute criminal

charges and try a person. Zahir v. Mountcastle, No. 21-1023,

2021 U.S. Dist. LEXIS 56646, at *4 (E.D. Pa. Mar. 25,

2021)(quoting Lewis v. Jindal, 368 F. App’x 613, 614 (5th Cir.

2010)(“It is well-settled that the decision whether to file

criminal charges against an individual lies within the

prosecutor’s discretion.”)). Accordingly, this allegation

cannot support a claim against McCarthy. Second, Plaintiff

alleges McCarthy’s officer’s “acts as described herein

constitute a battery under the common law of New Jersey” and

“willfully and wantonly or with gross negligence struck

Plaintiff in the most disretfulway [sic] with all neighbors

although Defendant Officer Mr. Michael P. McCarthy Jr. *CHIEF*

knew, or should have known, that such conduct posed an

unreasonable right of causing serious injury to Plaintiff.”

(ECF No. 5 at 9 ¶20, 10 ¶24.E.) Plaintiff’s drafting does not

suggest McCarthy was actually present at the scene with

Heleston, McDowell, and Errico. Instead, these allegations seem

Borough of Lindenwold (“Lindenwold”), and Mayor Richard Roach,

Jr. (“Mayor Roach”)(collectively “Defendants) asserting the

following five causes of action: (1) Count One – Use of

Excessive Force; (2) Count Two – Reckless Indifference to

Plaintiff’s Serious Medical Needs; (3) Count Three – Monetary

Claims against Lindenwold and Mayor Roach; (4) Count Four –

Battery; and (5) Count Five – Claim for Gross Negligence or

Willful and Wanton Misconduct.

DISCUSSION

A. Subject Matter Jurisdiction

The Court has original federal question jurisdiction over

Plaintiff’s federal claims under 28 U.S.C. § 1331 and has

supplemental jurisdiction over the New Jersey state law claim

pursuant to 28 U.S.C. § 1367(a).

B. Legal Standards

a. Motion for Recusal

to be an attempt to hold McCarthy liable through supervisory

liability. Whether Plaintiff is attempting to hold Plaintiff

directly liable for his own actions or the actions of his

subordinate officers does not need to be resolved at this time.

This is because under either theory Plaintiff fails to state a

claim against McCarthy given these two additional allegations

are merely conclusory allegations. For this reason, the Court

will dismiss without prejudice Plaintiff’s Amended Complaint

against McCarthy. Plaintiff will be afforded thirty (30) days

to amend his Amended Complaint to include factual allegations

that demonstrate McCarthy was present at the scene and if so,

his alleged unlawful actions at the scene or include factual

allegations that demonstrate McCarthy may be held liable through

a supervisory liability theory.

There are two principal statutes addressing recusal of a

federal judge, 28 U.S.C. §§ 455 and 144. Under 28 U.S.C. §

455(a), a judge must “disqualify himself in any proceeding in

which his impartiality might reasonably be questioned.” The

Third Circuit has held that “[t]he test for recusal under §

455(a) is whether a reasonable person, with knowledge of all the

facts, would conclude that the judge’s impartiality might

reasonably be questioned.” Allen v. Parkland Sch. Dist., 230 F.

App'x 189, 193 (3d Cir. 2007) (quoting In re Kensington Int’l

Ltd., 368 F.3d 289, 301 (3d Cir. 2003)).

Similarly, under 28 U.S.C. § 144, recusal must occur

“[w]henever a party to any proceeding in a district court makes

and files a timely and sufficient affidavit that the judge

before whom the matter is pending has a personal bias or

prejudice either against him or in favor of any adverse party.”

28 U.S.C. § 144. A “substantial burden is imposed on the party

filing an affidavit of prejudice to demonstrate that the judge

is not impartial.” Ali v. United States, No. 14-7723 (NLH),

2015 U.S. Dist. LEXIS 145360, at *2 (D.N.J. Oct. 27, 2015)

(quoting Frolow v. Wilson Sporting Goods Co., No. 05-04813, 2011

U.S. Dist. LEXIS 38098, at *5 (D.N.J. Apr. 7, 2011) (citation

omitted); Kilkeary v. United States, No. 12-2781, 2015 U.S.

Dist. LEXIS 78822, at *8 (D.N.J. June 18, 2015)).

b. Screening Complaints Filed IFP Pursuant to Section

1915

Although § 1915 refers to “prisoners,” federal courts apply

§ 1915 to non-prisoner IFP applications. See Hickson v. Mauro,

No. 11-6304, 2011 U.S. Dist. LEXIS 137260, at *1 (D.N.J. Nov.

30, 2011) (citing Lister v. Dept of Treasury, 408 F.3d 1309,

1312 (10th Cir. 2005)); Lister, 408 F.3d at 1312 (“Section

1915(a) applies to all persons applying for IFP status, and not

just to prisoners.”). Once IFP status has been granted, a court

must follow the screening provisions of the IFP statute. The

screening provisions of the IFP statute require a federal court

to dismiss an action sua sponte if, among other things, the

action is frivolous or malicious, or if it fails to comply with

the proper pleading standards. See 28 U.S.C. §

1915(e)(2)(B)(i)-(iii); Ball v. Famiglio, 726 F.3d 448, 452 (3d

Cir. 2013); Martin v. U.S. Dep't of Homeland Sec., No. 17-3129,

2017 U.S. Dist. LEXIS 140747, at *1 (D.N.J. Aug. 30, 2017)

(“Federal law requires this Court to screen Plaintiff's

Complaint for sua sponte dismissal prior to service, and to

dismiss any claim if that claim fails to state a claim upon

which relief may be granted under Fed. R. Civ. P. 12(b)(6)

and/or to dismiss any defendant who is immune from suit.”).

As indicated, this Court must follow the Rule 12(b)(6)

standard in considering a pro se complaint. Pro se complaints

must be construed liberally, and all reasonable latitude must be

afforded the pro se litigant. Estelle v. Gamble, 429 U.S. 97,

107 (1976). But, pro se litigants “must still plead the

essential elements of [their] claim and [are] not excused from

conforming to the standard rules of civil procedure.” McNeil v.

United States, 508 U.S. 106, 113 (1993) (“[W]e have never

suggested that procedural rules in ordinary civil litigation

should be interpreted so as to excuse mistakes by those who

proceed without counsel.”); Sykes v. Blockbuster Video, 205 F.

App’x 961, 963 (3d Cir. 2006) (finding that pro se plaintiffs

are expected to comply with the Federal Rules of Civil

Procedure).

When screening a complaint 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) (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); Papasan v. Allain, 478 U.S. 265, 286

(1986)).

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. Rhodes, 416

U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal, 556 U.S. 662,

684 (2009) (“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).

C. Plaintiff’s Motions

Plaintiff’s fails to cite the bases for his Motions for

Recusal. For this reason, the Court will consider both 28

U.S.C. §§ 144 and 455(a).

The Court first finds Plaintiff’s Motions for Recusal, to

the extent based on 28 U.S.C. § 144, procedurally defective.

Under 28 U.S.C. § 144, Plaintiff bears the burden of filing a

“sufficient affidavit” demonstrating that this Court has a

“personal bias or prejudice against him or in favor of any

adverse party.” Plaintiff failed to file any affidavit as

required by § 144.

The Court further finds neither § 144 nor § 455 would

warrant the Court to grant Plaintiff’s Motions for Recusal

anyway. Plaintiff explains recusal is warranted due to

“discrimination and refusual [sic] to see me or speak to me due

to my race, last appointed attorney said he dislike [sic]

African/Spanish people on his own personal reason.” (ECF No. 4

at 1). Plaintiff’s more recent filings echo these claims,

arguing that recusal is warranted because the Court has not

afforded him oral arguments in prior cases, and he is being

discriminated against here on the basis of his race, sexual

orientation, age, and religion. See, e.g., Plaintiff’s Motion

for Recusal (ECF No. 8 ay 1) (claiming “discrimination on (4-

counts) – refusal to honor any ‘court hearings) [sic] in my

civil case prior and refuse to hold any person ‘liable for rape

me [sic] for 7-times”); id. at 1-2 (claiming discrimination

because the Court “refuse/hearings of past and present cases . .

. [because the judge] only want to see *black African Americans

in his court only under ‘criminal cases’ states that’s how he

make his money buy [sic] keeping the prison over (80-percent in

black people)”); id. at 2 (claiming discrimination because “I

have to fight to get in a court room ‘only’ due to it’s a civil

case. This judge has violated my rights, I do not ‘trust’ him

nor Im [sic] fully aware of his grudge against me due to

*several times I wrote him up*”); Plaintiff’s Letter in Support

of the Motions for Recusal (ECF No. 10 at 1) (claiming the case

has not been allowed to proceed due to his “race, color, or his

religion or senior & handicap or gay ‘forced’ status”); id. at

1-2 (claiming recusal is warranted as: (1) “this judge has been

placed down as a **defendant** in amended-complaint;”3 (2) “this

current judge will purposly [sic] *delay* the process of this

case due to my color;” (3) “this current judge has a ‘pending

civil case against him of $100-million U.S. dollars;”4 (4)

“Plaintiff must take 24-pills a day due to judge refusal to hear

3 The proposed Amended Complaint, ECF No. 5, does not name the

undersigned as a defendant. The Court is at a loss as to how or

why Plaintiff reached this conclusion.

4 This averment is moot. As noted in the Court’s February 24,

2022 Opinion and Order in Edwards v. Hillman, No. 2:21-cv-20720-

JMV-CLW, 2022 WL 597515, at **2-7 (D.N.J. Feb. 23, 2022),

wherein “Plaintiff appears to challenge Judge Noel L. Hillman

and Judge Anne E. Thompson’s decisions in multiple other matters

brought by Plaintiff . . . alleg[ing] that Judge Hillman denied

Plaintiff’s requests for hearings because of his race, sexual

status, and religion,” the Court dismissed Plaintiff’s

complaint, in part with prejudice, holding “the claims against

Judge Hillman and Judge Thompson are dismissed pursuant to the

doctrine of judicial immunity.”

his case;” and (5) “Plaintiff has no/feelings in his right hand

and left hand, due to this judge would not allow proper hearing

to stop the unlawful acts against him.”); Plaintiff’s Letter in

Support of the Motions for Recusal (ECF No. 12 at 1) (claiming

recusal is warranted because he was denied “court hearings from

you and refuse to have in in [sic] court or video hearings due

to his color, race, sexual status, of being raped 7-times and

beaten with combination locks, which you allowed and provided to

the inmates”). However, “[t]h[ese] claim[s], which [are]

speculative and conclusory, do[] not warrant recusal.” In re

Onishi, No. 21-2490, 2021 U.S. App. LEXIS 24514, at *3 (3d Cir.

Aug. 17, 2021); see also Brown v. United States, 823 Fed. App’x

97, 103-14 (3d Cir. July 30, 2020)(citations and quotations

omitted)(“[A] judge’s recusal is not required on the basis of

unsupported or highly tenuous speculation”); In re Burnett, 740

Fed. App’x 235, 236 (3d Cir. Oct. 26, 2018)(citations and

quotations omitted)(“[R]ecusal is not required on the grounds of

unsupported, irrational, or highly tenuous speculation”).

Plaintiff fails to include any factual support for his

allegations that would warrant recusal. Thus, the Court will

deny Plaintiff’s motions to the extent he seeks recusal.

Throughout Plaintiff’s motions and letters, he also seeks

an order from the Court accepting the Report of the Special

Master and directing the parties to engage in a settlement

conference. The Court first rejects Plaintiff’s request for the

Court to accept the “Report of the Special Master.” Plaintiff

fails to provide the Court with any Special Master Report or

offer any explanation of what report, investigation, or court

proceeding he may be referring to. Accordingly, the Court is

unaware of what report Plaintiff seeks the Court’s approval for

and for this reason, the Court will deny Plaintiff’s motions to

the extent he seeks the Court to accept the Report of the

Special Master.

As detailed below, Plaintiff’s Section 1983 claim against

Heleston, Errico, and McDowell for a warrantless entry, battery

claim against Heleston, and gross negligence claim against

Heleston, Errico, and McDowell have survived the Court’s

screening pursuant to Section 1915.

If Plaintiff wishes to pursue a settlement conference with

such Defendants, then Plaintiff may seek to arrange such a

conference under the direction of the Magistrate Judge assigned

to this matter after he has effected service on the Defendants.

Because no defendants have been served his application is not

yet ripe and will be denied without prejudice.

D. IFP Screening Pursuant to § 1915

a. Plaintiff’s § 1983 Claims against the Individual

Officers

Section 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory ... subjects, or causes

to be subjected, any citizen of the United

States or other person within the jurisdiction

thereof to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in

equity, or other proper proceeding for redress

. . . .

As the above language makes clear, Section 1983 is a

remedial statute designed to redress deprivations of rights

secured by the Constitution and its subordinate federal laws.

See Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979). By its own

words, therefore, Section 1983 “does not . . . create

substantive rights.” Kaucher v. County of Bucks, 455 F.3d 418,

423 (3d Cir. 2006) (citing Baker, 443 U.S. at 145, n.3).

To state a cognizable claim under Section 1983, a plaintiff

must allege a “deprivation of a constitutional right and that

the constitutional deprivation was caused by a person acting

under the color of state law.” Phillips v. County of Allegheny,

515 F.3d 224, 235 (3d Cir. 2008) (citing Kneipp v. Tedder, 95

F.3d 1199, 1204 (3d Cir. 1996)). “Thus, a plaintiff must

demonstrate two essential elements to maintain a claim under §

1983: (1) that the plaintiff was deprived of a ‘right or

privileges secured by the Constitution or the laws of the United

States’ and (2) that plaintiff was deprived of his rights by a

person acting under the color of state law.” Rodriguez v. N.J.,

No. 18-11166, 2021 U.S. Dist. LEXIS 9356, at *13 (D.N.J. Jan.

19, 2021) (quoting Williams v. Borough of West Chester, Pa., 891

F.2d 458, 464 (3d Cir. 1989)).

Plaintiff first asserts an excessive force claim. However,

the allegations of Count I suggests Plaintiff is alleging Fourth

Amendment violations based upon the theories of the warrantless

entry into his home and excessive force.5 The Court will first

analyze whether Plaintiff has sufficiently stated a Section 1983

claim based upon a Fourth Amendment violation for a warrantless

entry and then analyze whether Plaintiff has sufficiently stated

a Section 1983 claim based upon a Fourth Amendment Violation for

excessive force.

i. Warrantless Entry into Plaintiff’s Apartment

“The Fourth Amendment is not, of course, a guarantee

against all searches and seizures, but only against unreasonable

searches and seizures.” United States v. Sharpe, 470 U.S. 675,

682 (1985). “Searches of a home without a warrant are

presumptively unreasonable, though the warrant requirement is

5 Plaintiff asserts a separate cause of action for reckless

indifference to Plaintiff’s serious medical needs. In doing so,

Plaintiff merely repeats the same allegations that underly

Plaintiff’s excessive force claim. This Court recognizes the

abundance of case law regarding the denial of medical needs in

the prison context; however, Plaintiff is neither an inmate nor

a pretrial detainee. The Court will consider the refusal to

provide medical assistance in its analysis surrounding

Plaintiff’s excessive force claim. Accordingly, Count II is

dismissed with prejudice.

subject to carefully defined exceptions.” Ray v. Twp. of

Warren, 626 F.3d 170, 174 (3d Cir. 2010).

The Court finds that Plaintiff has plausibly alleged a

Section 1983 claim against the Individual Officers for a

warrantless entry. First, “acts of a state or local employee in

[his] official capacity will generally be found to have occurred

under color of state law.” Barna v. City of Perth Amboy, 42

F.3d 809, 816 (3d Cir. 1994). Here, Plaintiff alleges the

Individual Officers entered his apartment and, therefore,

plausibly alleges conduct under color of state law. Second,

Plaintiff provides sufficient facts that Defendant Heleston,

without a warrant, broke down Plaintiff’s door and then

proceeded to enter his apartment. In addition, Defendants

Errico and McDowell entered his apartment without a warrant.

Because searches of an apartment without a warrant are

presumptively unreasonable, Ray, 626 F.3d at 174, and because

the well-pleaded factual allegations of the Amended Complaint,

taken as true, demonstrate the absence of an exception to the

warrant requirement, the Court finds that Plaintiff has

plausibly alleged a violation of the Fourth Amendment.

Accordingly, Plaintiff has plausibly alleged a Section 1983

claim under the theory of a warrantless entry into his apartment

against the Individual Officers.

ii. Excessive Force

The Fourth Amendment to the United States Constitution

provides that “The right of the people to be secure in their

persons ... against unreasonable searches and seizures, shall

not be violated.” “To state a claim for excessive force as an

unreasonable seizure under the Fourth Amendment, a plaintiff

must show that a ‘seizure’ occurred and that it was

unreasonable.” Brower v. County of Inyo, 489 U.S. 593, 599

(1989), cited in Lamont v. New Jersey, 637 F.3d 177, 182-83 (3d

Cir. 2011). See also Graham v. Connor, 490 U.S. 386, 395 (1989)

(“all claims that law enforcement officers have used excessive

force--deadly or not--in the course of an arrest, investigatory

stop, or other ‘seizure’ of a free citizen should be analyzed

under the Fourth Amendment and its ‘reasonableness’ standard”).

A seizure triggering Fourth Amendment protection occurs

when a government actor “by means of physical force or show of

authority, has in some way restrained the liberty of a citizen.”

Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). Clearly, here, there

is no question that Plaintiff has adequately alleged that a

seizure occurred.

To determine the reasonableness of a seizure, a court “must

balance the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the importance

of the governmental interests alleged to justify the intrusion.”

United States v. Place, 462 U.S. 696, 703 (1983), quoted in

Graham v. Connor, 490 U.S. 386, 396 (989) and Scott v. Harris,

550 U.S. 372, 383 (2007). Proper application of this objective

reasonableness standard “requires careful attention to the facts

and circumstances of each particular case, including the

severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade

arrest by flight.” Graham v. Connor, 490 U.S. at 396; quoted in

Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir.

1995). Other factors to be considered include “‘the duration of

the [officer’s] action, whether the action takes place in the

context of effecting an arrest, the possibility that the suspect

may be armed, and the number of persons with whom the police

officers must contend at one time.’” Couden v. Duffy, 446 F.3d

483, 497 (3d Cir. 2006) (citations omitted). Ultimately, “the

question is whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting

them, without regard to their underlying intent or motivation.”

Graham, 490 U.S. at 397.

Applying this to the pleadings, “[h]ere, Plaintiff has

simply alleged in conclusory fashion that [Defendant Heleston

battered] him and used excessive force against him. This Court

is not bound to accept Plaintiff’s characterization of the

[Individual Officers’] conduct as excessive.” Stora v. Brady,

No. 12-5131 (NLH), 2014 U.S. Dist. LEXIS 146032, at *10 (D.N.J.

Oct. 10, 2014). Plaintiff has failed to describe the nature of

the force used against him for the Court to determine whether

the Individual Officers used excessive force against him when

they entered his home. Plaintiff’s excessive force claim is

therefore dismissed without prejudice.

The Court will afford Plaintiff thirty (30) days to amend

his complaint to includes sufficient allegations detailing the

forced used by each Individual Officer to support his excessive

force claim. Laoye v. Doe, No. 20-1149, 2021 U.S. Dist. LEXIS

148331, at *8-9 (D.N.J. Aug. 4, 2021)(screening a pro se

plaintiff’s complaint pursuant to Section 1915 and dismissing

plaintiff’s excessive force claim without prejudice because

plaintiff “does not detail what force was used against him, nor

does he provide any context or detail about the incident in

question” and “[p]laintiff has thus failed to plead facts which

would indicate that the use of force in question was

unreasonable, and [p]laintiff therefore fails to state a

plausible claim for relief”); Riggins v. Banos, No. 18-12877,

2019 U.S. Dist. LEXIS 72481, at *9 (D.N.J. Apr. 30,

2019)(screening a pro se plaintiff’s complaint pursuant to

Section 1915 and dismissing plaintiff’s excessive force claim

without prejudice because plaintiff “simply makes the conclusory

allegation that police officers ‘physically assaulted plaintiff

despite plaintiff being in full submission on his stomach on the

upper bathroom common facility floor and the assault continued

after plaintiff had been handcuffed’” and “[w]ithout any facts

identifying the degree of physical force allegedly used upon

[plaintiff], he fails to state a plausible claim for excessive

force”).

b. Plaintiff’s Monell claim against Lindenwold

It is well 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. Monell v. New York

City Dept. of Social Servs., 436 U.S. 658, 691 (1978). To plead

a municipality liability claim, a plaintiff must allege that “a

government’s policy or custom ... inflict[ed] the injury” in

question. Id. at 694. “Policy is made when a decisionmaker

possess[ing] 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) (alteration in original) (internal quotation

marks omitted). “Custom, on the other hand, can be proven 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.” Bielevicz v.

Dubinon, 915 F.2d 845, 850 (3d Cir. 1990).

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

premised on a municipality’s failure to train, supervise, and

discipline. To plead such a claim, a plaintiff “must

demonstrate that a city’s failure to train its employees

‘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)). Deliberate indifference is plausibly pled by

showing that “(1) municipal 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)). Finally, conclusory recitations of the

elements of a Monell claim are insufficient. See 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

policy or custom).

Plaintiff provides only conclusory allegations as to the

existence of a policy, practice, and custom of Lindenwold. It

is well-established that conclusory allegations as to the

existence of a policy or practice is insufficient to provide a

valid basis for municipal liability. See, e.g., Malat v.

Borough of Magnolia, No. 19-14841 (NLH), 2020 U.S. Dist. LEXIS

88519, at *1 (D.N.J. May 20, 2020)(dismissing a pro se

plaintiff’s municipality claims where the plaintiff claimed

“that the Borough of Magnolia fostered an unconstitutional

policy that ‘permits and tolerates illegal conduct, including

harassment, excessive use of police power, tortuous interference

with business relations, intentional infliction of distress, and

illegal discrimination,’” because “such conclusory allegations

do not satisfy the applicable pleading standards for

[plaintiff’s municipal liability] claim[].”); Bragg v. Tuccillo,

No. 16-8628, 2017 U.S. Dist. LEXIS 16168, at *6 (D.N.J. Feb. 6,

2017) (dismissing a pro se plaintiff’s municipal liability

claims because “[p]laintiff identifie[d] no policy or practice

which resulted in his alleged mistreatment by the various

officers and instead he provid[ed] only a conclusory allegation

as to the existence of a policy or practice”); Schweizer v.

Middle Twp. Mayor & Governing Body, No. 17-960 (NLH),2018 U.S.

Dist. LEXIS 71637, at *13 (D.N.J. Apr. 30, 2018) (“As in Iqbal,

and also in Bard and Zampetis, Plaintiff’s conclusory contention

that an infirm policy, or custom, or training practice by Middle

Township caused his injuries is insufficient to properly plead a

viable Monell claim. In addition to identifying the relevant

policymakers and their specific participation in the alleged

violations, Plaintiff is required to provide facts - not simply

regurgitate all the legal bases for liability under Monell - to

support his contentions and adequately plead his claims against

the municipality.”).

Count III against Lindenwold will be dismissed without

prejudice, and Plaintiff will be afforded thirty (30) days to

file an amended complaint that cures the above deficiencies.

See Fletcher Harlee Corp. v. Pote Concrete Contractors, Inc.,

482 F.3d 247, 251 (3d Cir. 2007) (stating that Third Circuit

case law “supports the notion that in civil rights cases

district courts must offer amendment irrespective of whether it

is requested when dismissing a case for failure to state a claim

unless doing so would be inequitable or futile”).

c. Plaintiff’s supervisory liability claim against Mayor

Roach

Plaintiff appears to seek liability against Mayor Roach in

his supervisory capacity as mayor of Lindenwold. Generally,

government officials are not liable for the unconstitutional

conduct of their subordinates under a theory of respondeat

superior. See Iqbal, 556 U.S. at 676; Monell, 436 U.S. at 692;

Robertson v. Sichel, 127 U.S. 507, 515-16 (1888) (“A public

officer or agent is not responsible for the misfeasances or

position wrongs, or for the nonfeasances, or negligences, or

omissions of duty, of subagents or servants or other persons

properly employed by or under him, in discharge of his official

duties”).

Instead, there are ordinarily only two ways in which

supervisors may be liable for the unconstitutional acts of their

subordinates. First, liability may attach if a supervisor,

“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. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir.

2004) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d

720, 725 (3d Cir. 1989)). Plaintiffs may show deliberate

indifference through facts that indicate “a supervisor failed to

adequately respond to a pattern of past occurrences of injuries

like the plaintiff’s,” or "that the risk of constitutionally

cognizable harm was ‘so great and so obvious that the risk and

failure of supervisory officials to respond will alone’ support

the finding that the two-part test is met.” Beers-Capitol v.

Whetzel, 256 F.3d 120, 136-37 (3d Cir. 2001) (citing Sample v.

Diecks, 885 F.2d 1099 (3d Cir. 1989)).

Under the second approach, a supervisor “may be personally

liable if he participated in violating [] rights, directed

others to violate them, or, as the person in charge, had

knowledge of and acquiesced in the subordinates’

unconstitutional conduct.” Estate of Moore v. Cumberland Cty.,

No. 17-2839, 2018 U.S. Dist. LEXIS 37814, at *11 (D.N.J. Mar. 8,

2018). Moreover, “claims alleging a failure to train, failure

to discipline, or failure to supervise are a subset of . . .

policy or practice liability.” Womack v. Moleins, No. 10-2932,

2015 U.S. Dist. LEXIS 11107, at *7 (D.N.J. Jan. 30, 2015).

Here, regarding Mayor Roach, Plaintiff fails to allege

adequate facts in his complaint that demonstrate he may satisfy

either approach to hold Mayor Roach liable. In fact, Count III,

which Plaintiff pleads against both Lindenwold and Mayor Roach,

only includes allegations specific to Lindenwold. Plaintiff’s

Amended Complaint includes only the following three factual

allegation specific to Mayor Roach at the end of the Amended

Complaint: (1) Mayor Roach is liable “to all action done in his

‘area’ unnwarranted [sic] action ‘done’ by appointed state

workers of” Lindenwold; (2) “answer violation of the following:

Misconduct by corparate [sic] official – mayor 2c:21-9-1-he

purposly [sic] or knowing [sic] use, controls, of ‘cover-up’

Lindenwold police reports of misconduct for furtherances [sic]

for promotion of officer criminal objects;” and (3) “answer

violation of making dividend except in the manner provided by

law of (the named defendants) in this case state employees has

several complaints by other citizens, of misconduct actions and

should be remove [sic] but you are illegally keeping them.”

(ECF No. 5 at 11.) As currently pled, these allegations alone

are insufficient to state a plausible claim against Mayor Roach

for supervisory liability or any cause of action.

Accordingly, the Court will dismiss without prejudice Count

III of Plaintiff’s Amended Complaint against Mayor Roach.

Plaintiff will be afforded thirty (30) days to amend his Amended

Complaint to cure these deficiencies. See Fletcher Harlee

Corp., 482 F.3d at 251 (3d Cir. 2007) (stating that Third

Circuit case law “supports the notion that in civil rights cases

district courts must offer amendment irrespective of whether it

is requested when dismissing a case for failure to state a claim

unless doing so would be inequitable or futile”).

d. Plaintiff’s tort claims against the Individual

Officers

i. Battery

“ The tort of battery rests upon a nonconsensual touching.”

Valles v. Cumberland County, No. 16-4757 (NLH), 2020 U.S. Dist.

LEXIS 101300, at *5 (D.N.J. 16-4757)(citing Leang v. Jersey City

Bd. of Educ., 198 N.J. 557 (2009). The Amended Complaint

alleges that Defendant Heleston battered Plaintiff, who

sustained severe and permanent injuries. (ECF No. 5 at 6). The

Amended Complaints fails to allege the other Individual Officers

touched Plaintiff without his consent. Accordingly, the Court

will dismiss without prejudice Plaintiff’s battery claim against

Defendant McDowell and Defendant Errico. Plaintiff will be

afforded thirty (30) days to include allegations to cure these

deficiencies.6

ii. Gross Negligence

For a finding of negligence under New Jersey law, the

plaintiff must establish: (1) a duty of care owed by defendant

to plaintiff; (2) a breach of that duty by defendant; and (3) an

injury to plaintiff proximately caused by defendant’s breach.

Smith v. Kroesen, 9 F. Supp. 3d 439, 442-43 (D.N.J. 2014)(citing

Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div. 1997)).

With regard to a claim of gross negligence, “the difference

between ‘gross’ and ‘ordinary’ negligence is one of degree

rather than of quality. Id. “Gross negligence refers to

behavior which constitutes indifference to consequences.” Id.

“Police officers have ‘a duty to act reasonably, and, in

the context of effectuating an arrest, they have a duty to

exercise ‘reasonable care to preserve the life, health, and

6 This Court recognizes if the Individual Officers were

attempting to arrest Plaintiff, then the Individual Officers

would be liable for battery only if the force was excessive.

Sanders v. Jersey City, No. 18-1057, 2021 U.S. Dist. LEXIS

78681, at *55 (D.N.J. Apr. 23, 2021)(citing Panarello v. City of

Vineland, 160 F. Supp. 3d 734, 767 (D.N.J. 2016)). However,

Plaintiff’s Amended Complaint does not suggest the actions of

Defendant Heleston occurred during an attempt to arrest

Plaintiff. For this reason, the Court finds that, accepting

Plaintiff’s allegations as true, Defendant Heleston may be

liable for battery even if he did not use excessive force.

safety of the person in custody.’” Widmaier v. City of Newark,

No. 16-2533, 2017 U.S. Dist. LEXIS 109453, at *23 (D.N.J. July

14, 2017); (citing Roccisano v. Township of Franklin, No. 11-

6558, 2013 U.S. Dist. LEXIS 97526 (D.N.J. Jul. 12, 2013)

(quoting Del Tufo v. Township of Old Bridge, 147 N.J. 90, 101

(1996); Damiani v. West Deptford Township, No. 07-2884, 2008

U.S. Dist. LEXIS 17581, (D.N.J. Mar. 7, 2008) (refusing to

dismiss a negligence claim where plaintiff alleged that officers

physically pulled her from a car without cause or explanation)).

Accepting the factual allegations as true, Defendant

Heleston broke through Plaintiff’s door, the Individual Officers

entered Plaintiff’s property without a warrant, Defendant

Heleston injured Plaintiff at some point, and the Officers left

Plaintiff in need of medical attention without calling an

ambulance for help or fixing Plaintiff’s door. Plaintiff

alleges all these actions and inactions occurred for no lawful

reason at all. The Court finds this is sufficient to

demonstrate the Individual Officers breached their duty to act

reasonably with Plaintiff. Moreover, as a result of the

Individual Officers’ previous actions and inactions, Plaintiff

suffered severe and permanent injuries. Accordingly, the Court

will allow Plaintiff’s gross negligence claim to proceed against

the Individual Officers.

Plaintiff should note that when an amended complaint is

filed, the previous complaint no longer performs any function in

the case and cannot be utilized to cure defects in the

complaint, unless the relevant portion is specifically

incorporated in the new complaint. 6 Wright, Miller & Kane,

Federal Practice and Procedure 1476 (2d ed. 1990) (footnotes

omitted). The amended complaint may adopt some or all of the

allegations in the previous complaint, but the identification of

the particular allegations to be adopted must be clear and

explicit. Id. To avoid confusion, the safer course is to file

an amended complaint that is complete in itself. Id.

CONCLUSION

For the reasons stated above, the Court will (1) dismiss,

in part, Plaintiff’s Amended Complaint without prejudice and

afford Plaintiff thirty (30) days to file a Second Amended

Complaint consistent with this Opinion; and (2) deny without

prejudice Plaintiff’s Motions for Recusal and Motions to Accept

the Special Master Report and For a Settlement Conference.

Plaintiff shall be afforded thirty (30) days to amend his

Amended Complaint to cure the deficiencies detailed in this

Opinion.

An appropriate Order will be entered.

Date: March 3, 2022 s/ Noel L. Hillman

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