ABDUL-AHAD v. ESSEX COUNTY SHERIFF DEPARTMENT

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

TASKEEN ABDUL-AHAD,

ADMINISTRATOR AD

PROSEQUENDUM of the ESTATE OF

PAUL O. BRASWELL, et al., Civil Action No. 20-15602

Plaintiffs, OPINION

v.

ESSEX COUNTY SHERIFF’S

DEPARTMENT, et al.,

Defendants.

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

Plaintiffs allege that multiple plainclothes law enforcement officers violated Paul O.

Braswell’s civil rights when they approached a vehicle in which Braswell was a passenger and

fired their guns into the vehicle after the driver attempted to flee. Braswell was killed during this

incident. Presently before the Court are partial motions to dismiss filed by the following

Defendants: (1) Detective Ozie Ryals, Detective Gino Izzo, Sgt. Christopher Bozios, Jr., Detective

Edgar J. Silverio, Detective Yusef Ellis, and Detective Erik Udvarhely (collectively, the “County

Defendants”), D.E. 29; (2) Det. Jose Yunque and Sgt. Emanuel Pereira, D.E. 30; and (3) the Essex

County Sheriff’s Department (“ECSD”), D.E. 32. Plaintiffs filed a brief in opposition to the

motions, D.E. 33, to which Defendants replied, D.E. 34, 35, 36.1 The Court reviewed the parties’

1 For purposes of this Opinion, the Court refers to the County Defendants’ brief in support of their

motion (D.E. 29-1) as “Cty. Br.”; Pereira and Yunque’s brief in support of their motion (D.E. 30-

submissions and decided the motions without oral argument pursuant to Fed. R. Civ. P. 78(b) and

L. Civ. R. 78.1(b). For the reasons set forth below, the ECSD’s motion is GRANTED and the

County Defendants, Pereira, and Yunque’s motions are DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

On or about September 26, 2018, Braswell was a passenger in a vehicle in Newark, New

Jersey.2 FAC ¶ 9. Plaintiffs contend that Braswell was not engaged in any criminal activity at the

time and did not possess any illegal contraband or weapons. Id. ¶ 13. Unknown individuals

approached the vehicle “with what appeared to be firearms” and tried to block its path. Id. ¶ 9.

Trying to flee, the driver struck several other vehicles and a tree, rendering the vehicle

“inoperable.” Id. ¶¶ 11, 14. The individuals with firearms opened fire on the vehicle. The

individuals were plainclothes law enforcement officers and the Officer Defendants3 in this matter.

The Officer Defendants discharged seventy-two bullets into the vehicle, which struck Braswell.

Id. ¶¶ 10, 14. Braswell and the driver of the vehicle did not “discharge any firearms nor take any

other action directed at or towards the police.” Id. ¶ 17. After Defendants discharged their

weapons into the vehicle, Defendants did not provide or attempt to provide Braswell with medical

6) as “Pereira Br.”; the ECSD’s brief in support of its motion (D.E. 32) as “ECSD Br.”; Plaintiffs’

opposition brief (D.E. 33) as “Plfs. Opp.”; the ECSD’s reply (D.E. 35) as “ECSD Reply”; the

County Defendants’ reply (D.E. 34) as “Cty. Reply”; and Pereira and Yunque’s reply (D.E. 36) as

“Pereira Reply.”

2 The factual background is taken from Plaintiffs’ First Amended Complaint (the “FAC”). D.E.

25. When reviewing a motion to dismiss, a court accepts as true all well-pleaded facts in the

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

3 The Officer Defendants are Detective Ozie Ryals, Detective Gino Izzo, Sgt. Christopher Bozios,

Jr., Detective Edgar J. Silverio, Detective Yusef Ellis, Detective Erik Udvarhely, Det. Jose

Yunque, Sgt. Emanuel Pereira, and Officer Abdullah Holmes. Defendant Abdullah Holmes did

not file a motion or join in any motion to dismiss the FAC.

aid or attention for hours and did not timely call EMS. Braswell died from the gunshot wounds.

Id. ¶¶ 16, 32.

Plaintiffs filed their Complaint in New Jersey state court, which the ECSD removed to this

Court on November 6, 2020. D.E. 1. In the Complaint, Plaintiffs asserted claims pursuant to 42

U.S.C. § 1983 and the New Jersey Civil Rights Act (“NJCRA”), N.J. Stat. Ann. § 10:6-2. Certain

Defendants subsequently filed motions to partially dismiss the Complaint. D.E. 6, 14, 21. On

September 7, 2021, this Court granted the motions in part, and dismissed two counts of the

Complaint. The Court otherwise denied the motions. D.E. 23, 24. The Court, however, granted

Plaintiffs leave to file an amended complaint. D.E. 24. Plaintiffs filed the FAC on October 5,

2021. In the FAC, Plaintiffs assert the following claims: (1) excessive force (Count I); (2) false

arrest and false imprisonment (Count II); (3) unreasonable seizure (Count III); (4) a Monell claim

(Count IV); and (5) failure to provide or timely secure medical care (Count V). D.E. 25. On

November 2, 2021, Defendants filed the instant motions to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6). Defendants seek to dismiss Counts I, II, III, and V of the FAC. D.E.

29, 30, 32.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint that fails

“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). Restatements of the elements of a claim are legal conclusions, and

therefore, are not entitled to a presumption of truth. Burtch v. Milberg Factors, Inc., 662 F.3d 212,

224 (3d Cir. 2011). The Court, however, “must accept all of the complaint’s well-pleaded facts as

true.” Fowler, 578 F.3d at 210.

III. ANALYSIS

As discussed, Plaintiffs assert claims pursuant to 42 U.S.C. § 1983 and the NJCRA.

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 provides 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, may bring a civil action

for damages and for injunctive or other appropriate relief.

N.J. Stat. Ann. § 10:6-2. The “NJCRA was modeled after § 1983, [and 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 Plaintiffs’ Section 1983 and NJCRA claims

together.

1. Claims Against the ECSD

The ECSD seeks to dismiss Counts I, II, III, and V of the FAC because it cannot be

vicariously liable for its employees’ alleged wrongdoing. ECSD Br. at 14-16. A municipality or

local governing body4 cannot be held liable under a theory of respondeat superior for § 1983 or

NJCRA claims. See Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 691 (1978); Harvey

v. County of Hudson, No. 14-3670, 2015 WL 9687862, at *11 (D.N.J. Nov. 25, 2015) (“The

NJCRA, like Section 1983, does not impose vicarious liability or respondeat superior liability.”).

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.”5 Jewell v. Ridley

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

4 Although the ECSD does not seek to dismiss on these grounds, the Court notes that the ECSD is

technically not a proper party to a Section 1983 claim. See Mikhaeil v. Santos, 646 F. App’x 158,

163 (3d Cir. 2016) (per curium) (explaining that “a city police department is a government sub-

unit that is not distinct from the municipality of which it is a part”). As a result, the Court construes

Plaintiffs’ claims against the ECSD as claims against Essex County.

5 In Count IV, which the ECSD does not seek to dismiss, Plaintiffs allege that the ESCD’s policies

and practices were a moving force behind Braswell’s death. FAC ¶¶ 46-51.

Plaintiffs address the alleged wrongful conduct of the Individual Defendants and do not mention

any purportedly inappropriate policies or customs. See FAC ¶¶ 19-22. In Counts II, III, and V,

Plaintiffs plead that the Individual Defendants were acting pursuant to the policies and practices

of the ECSD. FAC ¶ 34. Plaintiffs state that they are not asserting claims pursuant to the doctrine

of respondeat superior in Counts II, III, and V. Plfs. Opp. at 21. Accordingly, the Court construes

the FAC as only asserting claims against the Individual Defendants in Counts I, II, III, and V

because Count IV is a Monell claim. The ECSD’s motion, therefore, is granted as to Counts I, II,

III, and V.

The ECSD also argues that Plaintiffs’ prayer for relief for punitive damages must be

dismissed as to it because public entities are immune from punitive damages for Section 1983 and

NJCRA claims. ECSD Br. at 7-8. The ECSD is correct that a plaintiff cannot recover punitive

damages from a public entity for Section 1983 or NJCRA violations. Damiani v. West Deptford

Township, No. 07-2884, 2008 WL 656041, at *4 (D.N.J. Mar. 7, 2008). Plaintiffs concede this

fact in their opposition. Plfs. Opp. at 21. Thus, the ECSD’s motion is granted as to punitive

damages.

2. Excessive Force (Count One)

Defendants6 maintain that Plaintiffs’ excessive force claim must be dismissed because

Plaintiffs fail to sufficiently allege the personal involvement of the Individual Defendants. See

Cty. Br. at 10-11. When asserting a Section 1983 claim, a plaintiff must plead facts setting forth

each defendant’s involvement in the alleged violations. See Iqbal, 556 U.S. at 676; see also Rode

6 The County Defendants, Yunque, and Pereira largely make identical arguments to dismiss Counts

I, II, III, and V of the FAC. The ECSD also joined in these arguments. See ECSD Br. at 17 (stating

that it joins the County Defendants’ arguments for dismissal). Because the Court granted the

ECSD’s motion on other grounds the Court only considers the remaining arguments as to the

moving Individual Defendants, and for the most part, considers their arguments together.

v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988) (affirming dismissal of First Amendment

retaliation claim where the plaintiff failed to allege personal direction of or knowledge and

acquiescence in retaliatory actions by individual defendants).

Defendants rely on a handful of cases to support their argument that Plaintiffs failed to

appropriately plead personal involvement. See Cty. Br. at 10-11. In each case, however, the

plaintiff asserted claims against multiple defendants, but the available evidence demonstrated that

only some of the defendants engaged in the wrongful conduct. For example, Anela v. City of

Wildwood, 790 F.2d 1063 (3d Cir. 1986) involved Section 1983 claims pertaining to a detention

that allegedly violated the plaintiffs’ rights. Anela, 790 F.2d at 1065. The Third Circuit upheld

the trial court’s decision to grant a directed verdict for the individual defendants because the

plaintiff failed to establish how each defendant was involved. Id. at 1067-68. While the evidence

demonstrated that the individual defendants were on duty, there were other officers also on duty

who were not named defendants. Moreover, other evidence showed that certain of the named

defendants’ job responsibilities indicated that they would not have been involved in booking and

detaining, the alleged wrongful conduct. Id. at 1068. Accordingly, “[t]he district court dismissed

the . . . claim solely on the basis that there was insufficient evidence to identify the specific police

officers responsible for detaining and confining those plaintiffs.” Id. at 1067. The Circuit

affirmed, explaining that the plaintiffs “must identify defendants with greater specificity.” Id.

Similarly, in Jutrowski v. Township of Riverdale, 904 F.3d 280 (3d Cir. 2018), the plaintiff

asserted a Section 1983 excessive force claim against four police officers after he was severely

injured by a single kick to his face. Jutrowski, 904 F.3d at 286. The Third Circuit upheld the

finding of summary judgment as to the excessive force claim for the defendants because the

plaintiff could not identify which defendant kicked him. Id. at 289-92. The Circuit explained that

“in the face of a motion for summary judgment, a § 1983 plaintiff must produce evidence

supporting each individual defendant’s personal involvement in the alleged violation to bring that

defendant to trial,” but that the plaintiff had failed to do so. Id. at 291.

In contrast, Plaintiffs plead that all the Individual Defendants were involved in the

wrongdoing. Specifically, Plaintiffs allege that the Individual Defendants, in addition to John Doe

Defendants, approached the vehicle with their guns drawn. FAC ¶¶ 9-10. Plaintiffs further allege

that the Individual Defendants all fired their weapons. Id. ¶ 14. This allegation is plausible given

the additional allegation that seventy- two bullets were discharged into the vehicle. Id. Thus, this

case is factually more in line with Smith v. Mensinger, 293 F.3d 641 (3d Cir. 2002), which the

Third Circuit also addressed in Jutrowski. See Jutrowski, 904 F.3d at 290. In Smith, the plaintiff

alleged that several corrections officer defendants beat him up. The plaintiff testified that the

defendants were behind him, pushed him against the wall and cabinets, and then knocked him to

the floor. Smith, 293 F.3d at 650. Although the plaintiff could not see each of the defendants

during the incident, he testified that each named defendant was involved. The Circuit determined

this testimony was sufficient to create a genuine issue of material fact as to each of the named

defendants. Id. Here, Plaintiffs sufficiently allege the personal involvement of each Individual

Defendant.

The County Defendants also criticize Plaintiffs for their failure to obtain a Use of Force

Report7 to determine which of the Individual Defendants fired their guns before filing the FAC.

Cty. Br. at 11-12. A court, however, is only concerned about plausible factual allegations at the

pleading stage. See Twombly, 550 U.S. at 555 (explaining that Fed. R. Civ. P. 8(a)(2) requires that

7 Defendants’ arguments appear premised on the argument that the Use of Force Report is accurate

and unassailable.

pleadings include “[f]actual allegations” that “raise a right to relief above the speculative level”);

see also Fowler, 578 F.3d at 213 (“[I]t has been noted that a plaintiff is not required to establish

the elements of a prima facie case but instead, need only put forth allegations that raise a reasonable

expectation that discovery will reveal evidence of the necessary element.” (internal quotation

omitted)). As discussed, Plaintiffs’ allegation that every Individual Defendant fired their weapon

is plausible. Moreover, by challenging Plaintiffs’ factual allegations through documents outside

the pleadings, Defendants ask the Court to consider information that is not appropriate at the

motion to dismiss stage. See Doe v. Princeton Univ., --- F.4th ---, 2022 WL 965058, at *3 (3d Cir.

Mar. 31, 2022) (“The proper place to resolve factual disputes is not on a motion to dismiss, but on

a motion for summary judgment.”). If the Use of Force Report or other evidence obtained through

discovery demonstrates that certain of the Individual Defendants did not use their firearms, then

the County Defendants’ may raise the issue at a later date rather than on a Rule 12(b)(6) motion to

dismiss.

Finally, Yunque and Pereira contend that the excessive force claim must be dismissed as

to them because they are entitled to qualified immunity. Pereira Br. at 5-8. Qualified immunity

can protect a state actor from liability in a Section 1983 case. Wright v. City of Philadelphia, 409

F.3d 595, 599 (3d Cir. 2005). Qualified immunity shields government officials from civil damages

liability “‘unless the official violated a constitutional right,’ and ‘the right was clearly established

at the time of the challenged conduct.’” Weimer v. County of Fayette, 972 F.3d 177, 190 (3d Cir.

2020) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)) (internal quotation marks and

citation omitted). In determining whether qualified immunity exists, a court must assess (1)

“whether the facts that the plaintiff has alleged make out a violation of a constitutional right, and

(2) whether the right at issue was ‘clearly established’ at the time of the defendant’s alleged

misconduct.” Kedra v. Schroeter, 876 F.3d 424, 434 (3d Cir. 2017) (quoting Pearson v. Callahan,

555 U.S. 223, 232 (2009)) (internal quotation marks and punctuation omitted).

A court “may address these two prongs in whichever order [it] find[s] appropriate for the

case.” Lozano v. New Jersey, 9 F.4th 239, 245 (3d Cir. 2021). “If the plaintiff fails to satisfy either

prong, the defendant is entitled to judgment as a matter of law.” James v. City of Wilkes-Barre,

700 F.3d 675, 679 (3d Cir. 2012) (finding defendant police officers were entitled to qualified

immunity at the motion to dismiss stage) (citing Pearson, 555 U.S. at 232). But “[t]he qualified

immunity analysis involves a fact-intensive inquiry that is generally ill-suited for resolution at the

pleadings stage.” Janowski v. City of North Wildwood, 259 F. Supp. 3d 113, 121 (D.N.J. 2017)

(quoting Batiz v. Brown, No. 12-581, 2013 WL 1137531, at *7 (D.N.J. Mar. 14, 2013)). Therefore,

“qualified immunity will be upheld on a 12(b)(6) motion only when the immunity is established

on the face of the complaint.” Thomas v. Independence Township, 463 F.3d 285, 291 (3d Cir.

2006).

Yunque and Pereira rely on evidence outside of and contradictory to the FAC in arguing

that their use of force was reasonable under the circumstances. See, e.g., Pereira Br. at 7 (citing to

an exhibit to the Certification of Kevin Desai for facts). But, as noted, when deciding a Rule

12(b)(6) motion to dismiss, a district court cannot disregard well-pleaded factual allegations in a

complaint when presented with conflicting facts in documents outside the pleadings. Factual

disputes are addressed through a motion for summary judgment. Doe, --- F.4th ---, 2022 WL

965058, at *3. Even if the Court were to consider their evidence, Yunque and Periera’s argument

indicates that there are significant factual disputes. “[F]actual issues or factual uncertainty may

make [a qualified immunity] assessment impossible at the complaint stage.” Saint-Jean v. County

of Bergen, 509 F. Supp. 3d 87, 110 (D.N.J. 2020); see also Mitchell v. Twp. of Willingboro Mun.

Gov’t, 913 F. Supp. 2d 62, 67-68 (D.N.J. 2012) (explaining that “it is generally unwise to venture

into a qualified immunity analysis at the pleading stage as it is necessary to develop the factual

record in the vast majority of cases”). Moreover, the Pereira Defendants do not address whether

the right as issue was clearly established at the time of the incident. Accordingly, the Court cannot

determine whether Yunque or Pereira are entitled to qualified immunity through the pleading

alone. The Pereira Defendants’ motion is denied on these grounds.

Defendants’ motions are denied with respect to Plaintiffs’ excessive force claim.

3. False Arrest and Unreasonable Seizure (Counts Two and Three)

Next, Defendants seek to dismiss Plaintiffs’ false arrest and imprisonment claim (Count

Two) and unreasonable seizure claim (Count Three) because the Individual Defendants had

reasonable suspicion to conduct an investigatory stop of the vehicle. Cty. Br. at 3-6; Pereira Br.

at 8-11. To state a Section 1983 false arrest or unreasonable seizure claim, a plaintiff must

establish (1) that there was an arrest or seizure; and (2) that the arrest or seizure was made without

probable cause. See James, 700 F.3d at 680; Berg v. County of Allegheny, 219 F.3d 261, 269 (3d

Cir. 2000). Plaintiffs’ allegations in Counts Two and Three focus on the shooting rather than the

basis for the stop. See FAC ¶¶ 27-28 (pleading that Braswell was arrested by the Individual

Defendants when they fired upon the vehicle); id. ¶ 37 (alleging that Braswell was seized after the

Individual Defendants fired into the vehicle). As a result, Defendants’ arguments do not address

the constitutional wrongs asserted in Counts Two and Three. Whether the Individual Defendants

had reasonable suspicion to conduct an investigatory stop is irrelevant to Plaintiffs’ claims.8

8 In arguing that these counts should be dismissed, the County Defendants rely on a September 26,

2018 incident report and the New Jersey Department of Corrections, Offender Details subpage for

Phillip M. Belton. Cty. Br. at 3-5. Pereira and Yunque ask this Court to take judicial notice of

two Newark Municipal Court Complaints and Judgments of Conviction. Pereira Br. at 1. While

not pled in the FAC, Defendants contend that Belton was driving the vehicle. See Cty. Br. at 4.

Accordingly, Defendants’ motions are denied as to Counts Two and Three.

4. Failure to Provide Timely Medical Care (Count Five)

Defendants also seek to dismiss Count Five, which asserts a claim for failure to provide

medical care. Failure to provide medical care to a person in custody may amount to a constitutional

violation under Section 1983 “only if that failure rises to the level of deliberate indifference to that

person’s serious medical needs.” Groman v. Township of Manalapan, 47 F.3d 628, 637 (3d Cir.

1995); see also Easterling v. City of Newark, 778 F. App’x 80 (3d Cir. 2019) (per curiam)

(applying deliberate indifference standard to delay of medical care claim where the plaintiff was

shot by police at the scene of a robbery). To state such a claim, a plaintiff must plead facts

demonstrating that (1) defendants were deliberately indifferent to his medical needs; and (2) the

medical needs were objectively serious. Rouse v. Plaintier, 182 F.3d 192, 197 (3d Cir. 1999).

Defendants argue that Plaintiffs fail to allege that “anyone should have been objectively

aware that Braswell was seriously injured inside the vehicle.” Cty. Br. at 7; Pereira Br. at 12. In

fact, the County Defendants contend that it is an “unsupported logical leap” to infer that the

Individual Defendants should have known that Braswell needed medical aid. Cty. Reply at 9.

Objectively serious medical needs include “one[s] that [are] so obvious that a lay person would

easily recognize the necessity for a doctor’s attention[.]” Atkinson v. Taylor, 316 F.3d 257, 272-

73 (3d Cir. 2003) (internal citations omitted). As discussed, Plaintiffs plead that the Individual

Defendants discharged seventy-two bullets into the vehicle. FAC ¶ 15. Viewing the allegations

in a light most favorable to Plaintiffs, the Court concludes that it is more than reasonable to

Defendants contend that the Court can take judicial notice of these documents pursuant to Federal

Rule of Evidence 201(c)(2) in deciding their motion to dismiss. Cty. Br. at 1; Pereira Br. at 1.

Because the Court does not need to address reasonable suspicion to stop the vehicle, the Court will

not address the parties’ arguments about whether it can consider these documents.

presume that Braswell needed immediate medical attention after the Individual Defendants used

their firearms. Therefore, Plaintiffs plead that there were objectively serious medical needs.

Next, the deliberate indifference prong requires proof that the defendants knew of and

disregarded an excessive risk to the plaintiff’s safety. See Natale v. Camden Cty. Corr. Facility,

318 F.3d 575, 582 (3d Cir. 2003). Defendants argue that Plaintiffs do not establish that they

disregarded a risk to Braswell’s safety because the Individual Defendants knew there were

weapons inside the vehicle. Defendants continue that their failure to provide immediate medical

care was necessary under the circumstances due to officer safety concerns. Cty. Br. at 8-10; Pereira

Br. at 12-14. The contention that there were weapons in the vehicle does not appear in the FAC.

Instead, Defendants rely on the incident report for this information. Cty. Br. at 8; Pereira Br. at

7.9 As discussed, Defendants maintain that the Court can take judicial notice of this document to

decide their motion. See, e.g., Cty. Br. at 1. Defendants argue that the incident report is a matter

of public record and integral to Plaintiffs’ claims. Cty. Reply at 2.

In deciding a motion to dismiss, a court ordinarily considers only the factual allegations,

exhibits attached to the complaint, and matters of public record. A court may also rely on “a

document integral to or explicitly relied upon in the complaint.” U.S. Express Lines Ltd. v.

Higgins, 281 F.3d 383, 388 (3d Cir. 2002) (emphasis in original) (citation omitted). A document

is integral if a “claim would not exist but-for the existence of the document.” Dix v. Total

Petrochemicals USA, Inc., No. 10-3196, 2011 WL 2474215, at *1 (D.N.J. June 20, 2011).

Plaintiffs’ claim would exist in this matter regardless of whether a police officer created an after

9 The County Defendants quote page 3 of Exhibit A from the Destinvil Cert. for support. Exhibit

A is the FAC, and the quoted language does not appear in the FAC. Rather, the quoted language

appears on page 5 of Exhibit B, which is the Incident Report. See Destinvil Cert., Ex. B at 5.

the fact incident report. Accordingly, the incident report is not integral to Plaintiffs’ claims.

“Public records include criminal case dispositions, letter decisions of government agencies,

published reports of administrative bodies, judicial opinions, and hearing transcripts.” Logan v.

Bd. of Educ. of Sch. Dist. of Pittsburgh, 742 F. App’x 628, 632 (3d Cir. 2018). But Defendants

provide no legal authority to support their position that a police report is a public record for

purposes of a Rule 12(b)(6) motion to dismiss analysis. Moreover, Defendants fail to cite authority

that the Court can consider the veracity of the contents of a police report at this stage.10 Although

the County Defendants cite to Shelley v. Wilson, 339 F. App’x 136 (3d Cir. 2009) in support, see

Cty. Reply at 2, Shelley is inapposite. In Shelley, the Third Circuit simply acknowledged that the

district court properly considered certain documents, including a police report, because the

documents were “referenced in Shelley’s complaint, were matters of public record, and/or were

integral of the false arrest claim.” Shelley, 339 F. App’x at 137 n.2. Outside of recognizing what

documents a court may consider, the Third Circuit did not provide any analysis of why the

documents were properly considered by the district court or which category certain documents fell

into. Accordingly, the Court will not consider facts from the incident report, as they are outside

of the pleading.

10 A court, for example, may take judicial notice of documents filed in other court proceedings

because they are matters of public record. See Liberty Int’l Underwriters Can. v. Scottsdale Ins.

Co., 955 F. Supp. 2d 317, 325 (D.N.J. 2013) (taking judicial notice of stipulation and assignment

agreement that was filed in state court). A court cannot, however, rely on these public records to

establish facts. Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004) (“While a prior judicial

opinion constitutes a public record of which a court may take judicial notice, it may do so on a

motion to dismiss only to establish the existence of the opinion, not for the truth of the facts

asserted in the opinion.”). Outside of arguing that the Court can take judicial notice of the incident

report, Defendants do not establish that the Court could use the incident report to establish facts

that contradict the FAC without converting the motions into motions for summary judgment. And

as already discussed, the Court cannot consider Defendants’ competing factual allegations at this

time. See Doe, --- F.4th ---, 2022 WL 965058, at *3.

Plaintiffs alleged facts that are sufficient to establish that the Individual Defendants acted

with deliberate indifference. Plaintiffs allege that after discharging seventy-two bullets into the

vehicle where Braswell was a passenger, the Individual Defendants failed to provide medical aid

to Braswell or call EMS. FAC 953. Defendants’ motions are denied with respect to Count V.

IV. CONCLUSION

For the foregoing reasons, the ECSD’s motion (D.E. 32) is GRANTED. Accordingly,

Counts I, I, I, and V, and Plaintiffs’ claim for punitive damages are DISMISSED as to the

ECSD. The County Defendants motion (D.E. 29) and Pereira and Yunque’s motion (D.E. 30) are

DENIED. An appropriate Order accompanies this Opinion.

Dated: April 6, 2022

Que LOO Vay

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