RAMIREZ CAAL v. TRENTON

*NOT FOR PUBLICATON*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_______________________________________

GLORIA RAMIREZ,

Plaintiff,

Civil Action No. 21-cv-10283 (FLW)

v.

OPINION

CITY OF TRENTON, et al.

Defendants.

WOLFSON, Chief Judge:

Plaintiff, Gloria Ramirez (“Ramirez” or “Plaintiff”), a resident of Trenton, New Jersey,

filed the instant suit arising out of injuries she sustained during the arrest of her son at her home.

In Plaintiff’s Amended Complaint, the following individuals are named in their individual and

official capacities: Tara Dzurkoc; Detective Anthony Pompeo; Detective Jeremy Stewart;

Detective Barry Volkert; Sheilah Coley; John Does 1-10; and John Does 11-20.1 (ECF No. 4.)

Presently before the Court is a motion by Defendants Detectives Anthony Pompeo and Barry

Volkert2 (collectively the “Moving Defendants”) to dismiss the claims asserted against them for

failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Moving Defendants’

1 According to Plaintiff’s Amended Complaint, John Does 1-10 are members of the City of

Trenton Police Department and/or the New Jersey State Police and/or the Mercer County Sheriff’s

Department and/or the New Jersey State Parole Board and/or the U.S. Marshal’s New York/New

Jersey Regional Fugitive Task Force. (ECF No. 4, p. 1.) John Does 11-20 are members of the

same entities in supervisory capacities. (Id. at 2.)

2 According to Plaintiff’s Amended Complaint, Detective Anthony Pompeo is a member of

the New Jersey State Police. Detective Barry Volkert is a member of the New Jersey State Parole

Board. (ECF No. 4, p. 1.) Detectives Pompeo and Volkert are also described as members of the

U.S. Marshal’s New York/New Jersey Regional Task Force. (Id.) These individual defendants

are sued in their individual, as well as official, capacities.

Motion to Dismiss (“Defs.’ Mot.”).) Plaintiff opposes the motion. (Plaintiff’s Opposition to

Moving Defendants’ Motion to Dismiss (“Pl.’s Opp’n.”).) Having considered the parties’

submissions, and for the following reasons, the Moving Defendants’ motion to dismiss is

GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Court assumes the facts set forth in the Amended Complaint to be true for the purposes

of the present motion. On January 7, 2020, defendants Tara Dzurkoc, Anthony Pompeo, Jeremy

Stewart, Barry Volkert, and/or John Does 1-10 arrived at Ms. Ramirez’s house to arrest her son as

part of a U.S. Marshal’s New York/New Jersey Regional Fugitive Task Force (NY/NJ RFTF)

operation. (ECF No. 4, p. 4.) After removing Plaintiff’s son from the residence, the officers

allegedly began to assault Plaintiff’s daughter. (Id.) Thereafter, Ms. Ramirez began recording

defendant officers with her cell phone. (Id. at p. 5.) Upon seeing Plaintiff recording, defendants

Dzurkoc, Pompeo, Stewart, Volkert, and/or John Does 1-10, collectively, allegedly “proceeded to

punch and kick Plaintiff numerous times.” (Id.) As alleged, Defendant Dzurkoc punched Plaintiff

several times with a closed fist in her face, knocking out her two front teeth. (Id.) In addition to

losing her upper teeth, Plaintiff allegedly suffered various other injuries to her head, neck and back,

as well as her right leg as a result of defendants’ actions. (Id.) Plaintiff was charged with

aggravated assault on a law enforcement officer, resisting arrest, and obstructing the administration

of laws, but the charges were resolved and eventually dismissed following Plaintiff’s acceptance

into a Pretrial Intervention Program without a plea. (Id.)

On April 27, 2021, Plaintiff initially filed a complaint against Sheilah Coley, Tara Dzurkoc,

and the City of Trenton. (ECF No. 1.) On May 11, 2021, Plaintiff filed an Amended Complaint,

adding Moving Defendants, Jeremy Stewart, and John Does 1-20. (ECF No. 4.) In Plaintiff’s

Amended Complaint, she brings claims under 42 U.S.C. §1983 and Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcotics, 413 U.S. 388 (1971), for excessive force (Counts I and

II); failure to intervene (Counts III and IV); First Amendment retaliation (Counts V and VI);

fabrication of evidence (Counts VII and VIII); failure to supervise (Counts IX and X); and

inadequate training (Count XI). Further, Plaintiff maintains that Moving Defendants violated the

New Jersey Civil Rights Act (“NJCRA”) by using excessive force and failing to intervene in the

use of such force (Count XII) and committed common law state torts against her (Counts XIII and

XIV). Specifically, Plaintiff alleges that Moving Defendants committed assault and battery on,

and were negligent in their treatment of, Plaintiff.

In the instant matter, Moving Defendants seek to dismiss these claims.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a claim “for

failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). On a motion

to dismiss for failure to state a claim, the moving party “bears the burden of showing that no claim

has been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr

Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)); Haney v. USA Gymnastics,

Inc., No. 21-07213, 2022 WL 909871, at *2 (D.N.J. Mar. 29, 2022). When reviewing a motion to

dismiss for failure to state a claim, courts first separate the factual and legal elements of the claims,

and accept all of the well-pleaded facts as true. See Fowler v. UPMC Shadyside, 578 F.3d 203,

210–11 (3d Cir. 2009). While Federal Rule of Civil Procedure 8(a)(2) does not require that a

complaint contain 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) (citation omitted). Thus, to survive a Rule 12(b)(6) motion to dismiss, the complaint must

contain sufficient factual allegations to raise a plaintiff's right to relief above the speculative level,

so that a claim “is plausible on its face.” Id. at 570; Phillips v. Cty. of Allegheny, 515 F.3d 224,

231 (3d Cir. 2008) (citation omitted). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). All reasonable inferences

must be made in the plaintiff’s favor. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314

(3d Cir. 2010).

III. DISCUSSION

A. Federal Actors

Plaintiff brings claims for excessive force; failure to intervene; First Amendment

retaliation; fabrication of evidence; failure to supervise; and inadequate training under section

1983 and Bivens, as well as claims under the NJCRA and New Jersey common law. Moving

Defendants argue that they are State actors as they are employees of the New Jersey State Police

and the New Jersey State Parole Board, respectively. (See Defs.’ Mot., pp. 3-4; Pompeo Reply, p.

3.) Plaintiff alleges that Moving Defendants acted at all times as agents, servants and/or employees

of the State of New Jersey and/or the U.S. Marshal’s New York/New Jersey Regional Fugitive

Task Force (“NY/NJ RFTF”). (ECF No. 4, pp. 2-3.) More importantly, Plaintiff avers that on

January 7, 2020, Moving Defendants arrived at Plaintiff’s home to arrest her son as part of a U.S.

Marshal’s NY/NJ RFTF operation. (Id. at p. 4.) The Court has not identified a single case

permitting both section 1983 and Bivens claims against the same defendants acting as part of a

federal task force operation during an isolated incident. Rather, the District of New Jersey has

classified deputized U.S. Marshals employed by state agencies as federal actors. See Martin v.

Unknown U.S. Marshals, 965 F. Supp. 2d 502, 512, n. 2 (D.N.J. 2013). Martin involved a suit

brought by relatives of an arrestee who died from a gunshot wound within minutes of deputized

United States Marshals’ arrival at his residence. In Martin, the court referred to a category of

defendants as “Federal Defendants” or “Marshals” because they had been deputized as members

of the NY/NJ RFTF even though none of the defendants was a USMS employee. Id. Indeed, two

of the defendants were employed by the New Jersey State Police. Id. The District of New Jersey

explained that “although they each worked for state and local law enforcement agencies, [the

Marshals] are to be considered federal agents acting under federal law during the incident in

question.” Id. at 537. The Third Circuit affirmed the district court’s opinion. See Est. of Martin

v. U.S. Marshals Serv. Agents, 649 F. App’x 239 (3d Cir. 2016).

Other courts have also treated state law enforcement officers designated as federal task

force members as federal agents acting under federal law. See, e.g., Guerrero v. Scarazzini, 274

F. App’x 11, 12 n.1 (2d Cir. 2008) (holding that local officers “assigned to an FBI Joint Organized

Crime and Drug Enforcement Task Force” were “federally deputized for their Task Force work,”

and thus the claim was “properly brought” as a Bivens action); Majors v. City of Clarksville, 113

F. App’x 659, 659-60 (6th Cir. 2004) (construing section 1983 claim against “police officers who

were acting as deputized Task Force Agents by the [DEA]” as a Bivens claim “in reality”); Texas

v. Kleinert, 143 F. Supp. 3d 551, 562 (W.D. Tex. 2015) (“Courts have consistently treated local

law-enforcement agents deputized as federal agents and acting as part of a federal task force as

federal agents.”); Pike v. United States, 868 F. Supp. 2d 667, 670, 677–678 (M.D. Tenn. 2012)

(concluding that § 1983 claims against “state and local law enforcement officers who served as

members of the Fugitive Task Force . . . [of] a program coordinated by the United States Marshal’s

[sic] Service” were “plainly Bivens claims, not § 1983 claims”); Ivey v. Lyman, No. 902CV470,

2005 WL 1397134, at *2 (N.D.N.Y. June 1, 2005) (“[D]efendant is employed by the Albany Police

Department, and thus would generally be acting under color of state law in his capacity as a police

officer. However, because he was working with the DEA and assigned to the DETF, he is

considered to be acting as a federal agent.”); cf. Challenger v. Bassolino, No. 18-1524, 2019 WL

625803, at *3 (D.N.J. Feb. 14, 2019) (finding that claims against member of the United States

Marshal’s Office would not be brought under section 1983, but pursuant to Bivens).

Consequently, based on Plaintiff’s allegation that Moving Defendants were carrying out a

NY/NJ RFTF operation on the day of the alleged assault, and precedent construing federal task

force members as federal actors, I find that for the purposes of Plaintiff’s claims, Moving

Defendants were federal actors, acting under color of federal authority, not under the color of state

law as state actors. Therefore, Plaintiff’s federal claims against Moving Defendants must be

brought under Bivens, not section 1983.3 See Ruiz v. Fed. Bureau of Prisons, 481 F. App’x 738,

739 n.1 (3d Cir. 2012) (finding plaintiff’s suit proper under Bivens, not section 1983, because it

was against federal actors, not state actors).

Similarly, because the NJCRA, like section 1983, permits a cause of action against “a

person acting under color of [state] law,” N.J. Stat. Ann. § 10:6-2(c), Plaintiff’s NJCRA claims

cannot proceed against alleged federal agents acting under the color of federal law. See Niblack

v. New Jersey State Parole Bd., No. 17-1977, 2017 WL 2106128, at *2 (D.N.J. May 15, 2017)

3 Because I find that Plaintiff’s federal claims must be brought under Bivens, not section

1983, I need not address Moving Defendants’ argument that they are not “persons” amenable to

suit under section 1983. Moreover, Moving Defendant’s argument that the Eleventh Amendment

bars Plaintiff’s action is also moot, as Eleventh Amendment immunity attaches to state officials

sued for damages in their official capacity. See Whaley v. Schiliro, 644 F. App’x 185, 188 (3d Cir.

2016) (“The Eleventh Amendment of the United States Constitution bars claims under Section

1983 against state actors unless the state has waived its sovereign immunity.”).

(“NJCRA [] enable[s] a plaintiff to bring a civil action only against a ‘person’ who causes a

deprivation of federal and state constitutional rights under the color of state law.”). Accordingly,

Plaintiff’s section 1983 and NJCRA claims are dismissed.

B. Bivens

In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme

Court recognized a private cause of action to recover damages against federal actors for

constitutional violations. 403 U.S. 388, 396-98 (1971). Bivens actions are the federal counterpart

to section 1983 claims brought against state officials. See Egervary v. Young, 366 F.3d 238, 246

(3d Cir. 2004) (citing Brown v. Philip Morris, Inc., 250 F.3d 789, 800 (3d Cir. 2001)). Because

the parties agree that Moving Defendants are not implicated in the failure to supervise and

inadequate training claims, the Court addresses the remaining Bivens claims, i.e., excessive force;

failure to intervene; First Amendment retaliation; fabrication of evidence.

At the outset, Moving Defendants argue that Plaintiff’s Bivens claims should be dismissed

to the extent they are sued in their official capacity. (See Pompeo Reply, p. 4.) Defendant Pompeo

relies on the Tenth Circuit’s decision in Farmer v. Perril to support his argument that Bivens suits

cannot be maintained against a federal officer in his official capacity. See Farmer v. Perrill, 275

F. 3d 958, 963 (10th Cir. 2001) (“There is no such animal as a Bivens suit against a public official

tortfeasor in his or her official capacity.”). The law in the Third Circuit is no different. See Lewal

v. Ali, 289 F. App’x 515, 516 (3d Cir. 2008) (“An action against government officials in

their official capacities constitutes an action against the United States; and Bivens claims against

the United States are barred by sovereign immunity, absent an explicit waiver.”); see also Webb v.

Desan, 250 F. App’x 468, 470-71 (3d Cir. 2007) (affirming the dismissal of a Bivens claim against

the United States, BOP, and seven named individuals in their official capacity). Hence, to the

extent Plaintiff brings Bivens claims against Moving Defendants in their official capacity, they are

dismissed with prejudice.

However, in the instant matter, Plaintiff has also sued Moving Defendants in their

individual capacity. It is well-established that a Bivens claim may be asserted against a defendant

in his or her individual capacity. See Lewal, 289 F. App’x at 516 (federal employees may be sued

under Bivens in their individual capacities, subject to the qualified immunity defense); Debrew v.

Auman, 354 Fed. App’x 639, 641 (3d Cir. 2009) (same); Balice v. United States, No. 17-13601,

2018 WL 3727384, at *4 (D.N.J. Aug. 6, 2018) (“Bivens claims can only be brought against federal

agents who have–in their individual capacity–allegedly violated the Constitution.”). Therefore,

Plaintiff may maintain her Bivens claims against Moving Defendants in their individual capacity.

To state a claim under Bivens, a claimant must show (1) a deprivation of a right secured by

the Constitution or laws of the United States; and (2) that the deprivation of the right was caused

by an official acting under color of federal law. See Couden v. Duffy, 446 F.3d 483, 491 (3d Cir.

2006). Here, Plaintiff alleges that she may recover under Bivens because Moving Defendants

violated her First Amendment, Fourth Amendment, and Fourteenth Amendment rights while

acting under color of federal law. Moving Defendants argue that Plaintiff has failed to allege any

facts to properly state a claim. (Defs.’ Mot., p. 6.) For the reasons explained below, I find that

Plaintiff has sufficiently pled a Bivens cause of action with respect to excessive force. However,

Plaintiff has failed to state a claim for failure to intervene, First Amendment retaliation, or

fabrication of evidence.

i. Excessive Force

As an initial matter, Moving Defendants argue that Plaintiff has not alleged personal

involvement sufficient to subject them to suit. “[A] party may establish liability for deprivation

of a constitutional right only through a showing of personal involvement by each defendant.”

Farrar v. McNesby, 639 F. App’x 903, 906-07 (3d Cir. 2016) (citation omitted). “Personal

involvement may be shown through personal direction, actual participation in the alleged

misconduct, or knowledge of and acquiescence in the alleged misconduct.” Id.; see also Tenon v.

Dreibelbis, 606 F. App’x 681, 688 (3d Cir. 2015). In this case, Plaintiff has adequately alleged

personal involvement through allegations of actual participation. Although Moving Defendants

argue that the Amended Complaint does not indicate how Detectives Pompeo or Volkert had any

personal involvement in this matter, Moving Defendants’ individual conduct is clearly described

in the Amended Complaint. (See ECF No. 4, pp. 4-5 (“On 1/7/20, Defendants . . . Anthony Pompeo

. . . [and] Barry Volkert . . . arrived at Plaintiff’s home to arrest her son . . . . Seeing Plaintiff

recording them, Defendants . . . Anthony Pompeo . . . [and] Barry Volkert . . . proceeded to use

excessive and unreasonable force on Plaintiff’s person . . . . Defendants . . . Anthony Pompeo . . .

[and] Barry Volkert . . . also punched and kicked Plaintiff numerous times.”)) Thus, I reject

Moving Defendants’ argument that they had no personal involvement.

Excessive force claims arising in the context of an arrest are analyzed under the Fourth

Amendment’s reasonableness standard. See Graham v. Connor, 490 U.S. 386, 395 (1989). “To

state a claim for excessive force as an unreasonable seizure under the Fourth Amendment, a

plaintiff must show that a ‘seizure’ of a person occurred and that it was unreasonable.” Abraham

v. Raso, 183 F.3d 279, 288 (3d Cir. 1999) (citation omitted). The “reasonableness” inquiry is an

objective one: “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 (citations omitted). The “reasonableness” of a particular

use of force must be judged “from the perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.” Bletz v. Corrie, 974 F.3d 306, 309 (3d Cir. 2020) (quoting

Graham, 490 U.S. at 396–97). “[F]actors to consider in making a determination of reasonableness

include 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.” Jefferson v. Lias, 21 F.4th 74, 79 (3d Cir. 2021) (citing Graham, 490 U.S. at

396). Other relevant factors include “the physical injury to the plaintiff, ‘the possibility that the

persons subject to the police action are themselves violent or dangerous, the duration of the 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.’” El v. City of Pittsburgh, 975 F.3d 327, 336 (3d Cir. 2020) (citations and quotations

omitted).

Assuming Ms. Ramirez’s allegations to be true, as I must at this stage of the proceeding, I

find that she has alleged an excessive force claim against Moving Defendants. Here, the

allegations clearly demonstrate that a seizure occurred, and Plaintiff has also sufficiently alleged

that the force used against her was unreasonable under the circumstances. Plaintiff, a petite woman

measuring under five feet in height, avers that upon seeing her record an assault on her daughter

with her cell phone, Moving Defendants “punched and kicked [her] numerous times,” causing her

injuries to her head, neck, back, and right leg. (ECF No. 4, p. 5.) Plaintiff also describes a sequence

of events in which the target of defendants’ task force operation, Plaintiff’s son, had already been

successfully removed from the residence, leaving behind Plaintiff and her daughter alongside at

least five law enforcement officers in Plaintiff’s home. (Id. at pp. 4-5.) While Plaintiff was

charged with aggravated assault on a law enforcement officer and resisting arrest, it is unclear from

Plaintiff’s Amended Complaint whether she resisted arrest.4 Moreover, the allegations do not

suggest that Plaintiff posed a threat to Moving Defendants’ safety or the safety of other officers

present, and there is no indication that Plaintiff was armed. Importantly, even where a plaintiff

resists arrest, “[she] does not invite the use of unconstitutional force simply because [s]he is

engaged in unlawful activity.” Veneziale v. Deichman, No. 14-6015, 2018 WL 3122066, at *7

(D.N.J. June 25, 2018). Indeed, even if a plaintiff engages in unlawful conduct, e.g., resisting

arrest, during her arrest, that plaintiff does not automatically forfeit the right to challenge police

conduct when effectuating the arrest. Id. Numerous courts have recognized that the gratuitous

use of force is unconstitutional. See, e.g., Green v. New Jersey State Police, 246 F. App’x 158,

163 (3d Cir. 2007) (holding it clearly established that choking, hitting on the head and kicking an

arrestee after he or she is restrained on the ground constitute forms of excessive force); Noble v.

City of Camden, 112 F. Supp. 3d 208, 228-29 (D.N.J. 2015) (“At the time Defendants acted, the

law was clear that beating an unarmed suspect who was not resisting arrest violates the Fourth

Amendment’s prohibition against excessive force.”); see also Morrison v. Bd. of Trustees of Green

4 Plaintiff resolved her claims through the Pretrial Intervention Program and, as a result,

there may be a question of whether the Supreme Court’s decision in Heck v. Humphrey, 512 U.S.

477 (1994), bars subsequent civil claims. In Heck, the Supreme Court held that “to recover

damages for allegedly unconstitutional conviction or imprisonment . . . a § 1983 plaintiff must

prove that the conviction or sentence has been reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal authorized to make such determination, or called into

question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254” to circumvent

preclusion. Id. at 486-87. “Although Heck involved a [section] 1983 action by a state prisoner,

the reasoning in Heck has been applied to bar Bivens claims.” See Lora-Pena v. F.B.I., 529 F.3d

503, 505, n. 2 (3d Cir. 2008) (citation omitted). Because a pre-trial diversion/intervention program

is considered an unfavorable termination, Heck preclusion may apply to Plaintiff’s claims. See

Gilles v. Davis, 427 F.3d 197, 208-10 (3d Cir. 2005). However, the parties have not addressed the

issue and there are insufficient facts in the Amended Complaint to determine whether Plaintiff’s

claims are subject to the Heck bar at this stage. Nevertheless, the Court notes that this may be an

issue for a future phase of the litigation. See Reaves v. Pennsylvania Bd. of Prob. & Parole, 580

F. App’x 49, 54 (3d Cir. 2014) (“We need not reach the operation of Heck, which is not a

jurisdictional rule and may be bypassed.”).

Twp., 583 F.3d 394, 404 (6th Cir. 2009) (“This Court has consistently held in light of the

reasonableness standard that ‘use of force after a suspect has been incapacitated or neutralized is

excessive as a matter of law.’”) (citation omitted); Wade v. Colaner, No. 06-3715, 2010 WL

1490590, *7-10 (D.N.J. April 13, 2010) (officer’s use of blunt force to plaintiff’s head and pepper

spray after the plaintiff already had been partially restrained was unreasonable and thus could be

found to be excessive); Marshall v. Keansburg Borough, No. 13-533, 2013 WL 6095475, at *7

(D.N.J. Nov. 20, 2013) (“[N]o reasonable office[r] in the Defendant Officers’ positions would

have believed that [] throwing Plaintiff into their police vehicle, kicking Plaintiff's legs out from

him, tackling Plaintiff to the ground, kneeing Plaintiff in his ribs and back, and choking Plaintiff

was a lawful, reasonable amount of force to use under the circumstances.”) Here, assuming

Plaintiff’s allegations to be true that she was punched and kicked numerous times by at least five

law enforcement officers, the inference can be made that even had Plaintiff resisted arrest, the

force used on her person by law enforcement officers was unreasonable and unnecessary to

effectuate her arrest. Thus, I find that Plaintiff’s excessive force claim under Bivens is permitted

to proceed.

ii. Failure to Intervene

In addition to inflicting excessive force on Plaintiff’s person, Plaintiff alleges that Moving

Defendants did nothing to intervene in the execution of such force. (ECF No. 4, pp. 7-9.) “Courts

have held that a police officer has a duty to take reasonable steps to protect a victim from another

officer’s use of excessive force.” Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002); see also

Boudreau v. Smith, No. 17-589, 2018 WL 4426010, at *6 (D. Conn. Sept. 17, 2018) (exercising

jurisdiction under Bivens over plaintiff’s Fourth Amendment claim alleging federal

officers’ failure to intervene when state officers used excessive force in making arrest at a pool

hall). Under these circumstances, a law enforcement officer may be held liable under Bivens where

“the officer (1) knows of and acquiesces to (2) the unconstitutional treatment of another in his

presence, and (3) fails or refuses to intervene despite having a realistic and reasonable opportunity

to intervene.” See Callaway v. Small, No. 21-12058, 2021 WL 6062281, at *6 (D.N.J. Dec. 22,

2021) (citations omitted); El, 975 F.3d at 335 (citing Smith, 293 F.3d 641, at 650–51); Damiani v.

Duffy, 277 F. Supp. 3d 692, 706 (D. Del. 2017), aff’d, 754 F. App’x 142 (3d Cir. 2018) (same).

The duration of the incident is critical to determining whether there was a reasonable opportunity

to intervene. A reasonable opportunity may present itself where the alleged excessive force lasts

several minutes, or the event unfolds in multiple stages. See, e.g., Baker v. Monroe Twp., 50 F.3d

1186, 1193-94 (3d Cir. 1995) (finding a genuine issue of fact where the alleged excessive force

lasted approximately fifteen minutes); Smith, 293 F.3d at 644, 650 (plaintiff’s testimony that he

was “rammed ... into walls[,] . . . knocked . . . to the floor[,] . . . kicked and punched[,] . . pulled .

. . to his feet,” and further beaten created a dispute of material fact (internal quotation marks

omitted)). Conversely, where an incident is momentary, its “brevity” may “defeat[ ] [a] . . . failure-

to-intervene claim.” Ricks v. Shover, 891 F.3d 468, 479 (3d Cir. 2018) (no failure-to-intervene

claim against a prison lieutenant where a guard allegedly made very brief sexual contact with an

inmate); El, 975 F.3d at 335 (finding no reasonable jury could find realistic and reasonable

opportunity to intervene where incident lasted five seconds).

Here, Plaintiff alleges that Moving Defendants had a reasonable opportunity to intervene

in the arrest and purported physical assault of Plaintiff by other non-moving defendants, as well

as each other, but failed to do so. (ECF No. 4, pp. 8-9.) However, Plaintiff alleges no facts

concerning the temporal length of the alleged assault sufficient to permit the Court to assess

Moving Defendants’ opportunity to intervene. To the contrary, it appears that, as alleged, the

individual officers all participated in the assault of Plaintiff during the same transaction. What is

more, because Moving Defendants are alleged to have participated in the unconstitutional actions,

it is unlikely that Plaintiff may be able to assert a failure to intervene claim against defendants

Pompeo or Volkert. See Mazur v. Twp. of Marlboro, No. 16-05527, 2020 WL 373343, at *5

(D.N.J. Jan. 23, 2020) (“Because it is undisputed that [defendant] punched [plaintiff], and that

punch is the basis of the failure to intervene claim, [plaintiff] cannot assert such claim against

[defendant].”); Degroat v. Felsman, No. 16-01186, 2019 WL 652345, at *4 (M.D. Pa. Feb. 15,

2019) (finding that defendants could not be liable where undisputed evidence showed direct

involvement in the use of force); Flint v. City of Milwaukee, 91 F. Supp. 3d 1032, 1063 (E.D. Wis.

2015) (“[Defendant] is not liable for failing to intervene. This result obtains because he directly

participated in the [alleged wrongs] and thus is personally liable for his own actions. An officer

cannot intervene in his own constitutional violation.”); Cuellar v. Love, No. 11-3632, 2014 WL

1486458, at *8 (S.D.N.Y. Apr. 11, 2014) (“Of course, where the officer is a direct participant in

the allegedly excessive use of force, the failure to intervene theory of liability is inapplicable.”).

Accordingly, Plaintiff’s failure to intervene claim is dismissed without prejudice. If, during

discovery, Plaintiff discovers additional evidence to support a sequence of events in which Moving

Defendants did not directly participate in the same violation as the remaining defendants, she may

move before the Magistrate Judge to amend these claims.

iii. First Amendment Retaliation

Plaintiff also brings a First Amendment retaliation claim under Bivens. Specifically,

Plaintiff alleges that Moving Defendants retaliated against her in violation of the First Amendment

by exerting physical force on her person and arresting her after she recorded an encounter between

the officers and her daughter in her home. (ECF No. 4, pp. 10-11.) In Bivens, the Supreme Court

implied a private right of action under the Fourth Amendment. 403 U.S. at 389. Since Bivens, the

Supreme Court extended the Bivens remedy twice more under the Fifth Amendment’s due process

clause, Davis v. Passman, 442 U.S. 228 (1979), and the Eighth Amendment’s prohibition against

cruel and unusual punishment, Carlson v. Green, 446 U.S. 14 (1980).

However, the Supreme Court has never implied a Bivens action under any clause of the

First Amendment.5 See Reichle v. Howards, 566 U.S. 658, 663 n. 4 (2012) (“We have never held

that Bivens extends to First Amendment claims.”). Further, the Third Circuit more recently

refused to extend Bivens to a First Amendment retaliation claim brought against an agent of the

Transportation Safety Administration. Vanderklok v. United States, 868 F.3d 189, 199 (3d Cir.

2017). Moreover, several courts have declined to extend Bivens to First Amendment claims in the

prison context after Vanderklok. See e.g., Watlington on behalf of FCI Schuylkill African Am.

Inmates v. Reigel, 723 F. App’x 137, 139-40, 140 n. 3 (3d Cir. 2018) (dismissing First Amendment

retaliation claim brought by federal prisoner against correctional staff and observing that “a First

Amendment retaliation claim . . . may not apply to a Bivens claim against a federal official”);

Alexander v. Ortiz, No. 15-6981, 2018 WL 1399302, *1 (D.N.J. Mar. 20, 2018) (refusing to extend

Bivens to federal prisoner’s suit against supervisor for discrimination and retaliation); Railey v.

Ebbert, 407 F. Supp. 3d 510, 521 (M.D. Pa. 2019) (concluding that prisoner was not entitled to

Bivens remedy for First Amendment retaliation claims).

Importantly, the Court has not identified a single case extending Bivens to a First

Amendment retaliation claim in the right to record context. Additionally, it is compelling that the

5 However, the Court notes that the Supreme Court has “assumed without deciding that

Bivens extends to First Amendment claims.” Wood v. Moss, 572 U.S. 744, 756 (2014) (finding

Secret Service agents were entitled to qualified immunity on viewpoint discrimination claim); see

also Iqbal, 556 U.S. at 675 (“[W]e assume, without deciding, that respondent’s First Amendment

claim is actionable under Bivens.”).

Third Circuit has refused to extend Bivens to First Amendment retaliation claims in the TSA and

prison contexts, and the Supreme Court has counseled against creating new Bivens causes of

action. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (explaining that “expanding

the Bivens remedy is now a ‘disfavored’ judicial activity”) (citing Iqbal, 556 U.S. at 675).

Notwithstanding, this Court has not identified any precedent prohibiting First Amendment

retaliation claims in this context, but more importantly, the parties have not briefed this issue in

their papers. Therefore, it is not prudent for the Court to conduct its own analysis as to whether

Bivens should extend to this context without the benefit of any arguments from the parties. At this

time, given recent Third Circuit precedent refusing to extend Bivens to First Amendment

retaliation claims in the national security and prison contexts, and the Supreme Court’s skepticism

of extending Bivens in a new context, Plaintiff’s First Amendment retaliation claim is dismissed

without prejudice. Should Plaintiff believe that there is a sufficient basis to support extending

Bivens to a First Amendment retaliation claim, she may file a motion to amend her complaint.

iv. Fabrication of Evidence

Finally, Plaintiff alleges in Count VIII that Moving Defendants fabricated evidence against

her by “prepar[ing] false reports and/or [giving] false statements” in violation of her due process

rights under the Fourteenth Amendment. (ECF No. 4, pp. 11-12.) However, “[t]he Fourteenth

Amendment only applies to actions of the states and not to the federal government.” Brown, 250

F.3d at 789; Bolling v. Sharpe, 347 U.S. 497, 499 (1954). Consequently, it is unsurprising that the

Supreme Court has never extended Bivens to the Fourteenth Amendment. See Berk v.

Hollingsworth, No. 170091, 2020 WL 6867216, at *5 (D.N.J. Nov. 23, 2020) (finding it

inappropriate to extend a Bivens remedy to a Fourteenth Amendment claim); Kent v. Tabafunda,

No. 07-4973, 2008 WL 2510723, at *1, n. 4 (D.N.J. June 19, 2008) (recognizing that although

Plaintiff filed a Bivens-like complaint pursuant to the Fourteenth Amendment, the Fourteenth

Amendment is not applicable to the facts of the case because defendants are federal, not state

actors). As a result, Plaintiff’s fabrication of evidence claim under the Fourteenth Amendment is

dismissed.6

B. Common Law Tort Claims

Plaintiff also alleges that Moving Defendant committed assault and battery against her, and

negligently exposed Plaintiff to unreasonable risk of injury. (Pl.’s Opp’n., p. 3.) Because Moving

Defendants were acting in the capacity of federal officers at the time of Plaintiff’s arrest, the

Federal Tort Claims Act (“FTCA”) governs. “The United States can generally be substituted for

federal employees facing liability for state law tort claims when they ‘are sued for damages for

harms caused in the course of their employment.’” Vanderklok, 868 F. 3d at 201 (quoting Hui v.

Castaneda, 559 U.S. 799, 801 (2010)). “Once the United States substitutes itself for an individual

defendant, the district courts only have jurisdiction to hear those claims if the United States has

explicitly waived its sovereign immunity.” Id. “If it has, then it can be held liable under the FTCA

for the acts or omissions of federal employees, but only if it would otherwise be liable under ‘the

6 Because the Court has determined that Moving Defendants were acting under the color of

federal law on the date of Plaintiff’s alleged assault, Plaintiff may be able to bring her fabrication

of evidence claim under the Fifth Amendment. See Cadmus v. United States, No. 08-1273, 2009

WL 1532059, *5 (M.D. Pa. June 1, 2009) (finding that since Plaintiff was suing federal officials

in Bivens action, the Fifth Amendment, rather than the Fourteenth Amendment, applied to his

claims). Indeed, as noted supra, the Supreme Court has extended Bivens to the Fifth Amendment

in the context of gender discrimination claims. Davis, 442 U.S. at 228 (holding that administrative

assistant fired by Congressman had a Bivens remedy for her Fifth Amendment gender

discrimination claim). Although the Supreme Court has not extended Bivens to violations of all

Fifth Amendment rights, at least one court has recognized a Bivens action for fabrication of

evidence. See Webb v. United States, 789 F.3d 647, 667-70 (6th Cir. 2015) (finding summary

judgment of arrestee’s Bivens fabrication of evidence claim not warranted). As such, Plaintiff may

move to amend to re-assert a Fifth Amendment claim under Bivens; however, the Court does not

comment upon the viability or futility of such a claim.

law of respondeat superior of the state in which the act or omission occurred.’” Id. (quoting

Lomando v. United States, 667 F.3d 363, 373 (3d Cir. 2011)).

When the United States is sued in tort, the FTCA provides the exclusive avenue to relief.

See 28 U.S.C. § 2679(b)(1) (“The remedy against the United States provided by sections 1346(b)

and 2672 of this title . . . is exclusive of any other civil action or proceeding for money

damages[.]”). Relevant here, Plaintiff may seek traditional tort damages, as afforded under 28

U.S.C. § 1346(b), against the United States. Vanderklok, 868 F.3d at 201. Section 1346(b)

provides that the district courts “shall have exclusive jurisdiction of civil actions on claims against

the United States, for money damages . . . caused by the negligent or wrongful act or omission of

any employee of the [g]overnment while acting within the scope of his office or employment[.]”

28 U.S.C. § 1346(b). That section further provides that the government is liable for such damages

“under circumstances where [it], if a private person, would be liable to the claimant in accordance

with the law of the place where the act or omission or occured.” Id. However, there are exceptions

contained within § 2680 that preclude the application of § 1346(b) to certain tort claims. One

exception is the disclaimer of liability for “[a]ny claim arising out of assault, battery, false

imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. § 2680(h). That is known

as the “intentional tort exception.” Millbrook v. United States, 569 U.S. 50, 52 (2013) (quotation

omitted).

While it appears that the “intentional tort exception” may apply to bar Plaintiff’s assault

and battery claims, see 28 U.S.C. § 2680(h), because Moving Defendants are alleged to have acted

as federal law enforcement officers during Plaintiff’s arrest, the so-called “law enforcement

proviso” provides an exception to the exception; that is, a plaintiff may sue the United States “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.” Millbrook, 569 U.S. at 54; Vanderklok, 868 F.3d at 202-03.

Accordingly, as a matter of law, Plaintiff may pursue her common law negligence, assault and

battery claims against the United States.

That being said, however, a party must exhaust certain administrative remedies prior to

bringing suit under the FTCA. Specifically, a plaintiff must first present the claim to the

appropriate federal agency within two years after its accrual and receive a final denial in writing

before proceeding in the district court. 28 U.S.C § 2401(b); 28 U.S.C. § 2675(a). A claim is

deemed presented when the federal agency receives written notification of the alleged tortious

incident and injuries accompanied by the claim for money damages in a sum certain. 28 U.S.C. §

2675(b); see also 28 C.F.R § 14.2; White-Squire v. U.S. Postal Serv., 592 F.3d 453, 457 (3d Cir.

2010). Exhaustion occurs when either the agency denies the claim or six months have passed

without a written denial of the claim. 28 U.S.C. § 2675(a).

“Because the [FTCA] constitutes a waiver of sovereign immunity, the Act’s established

procedures have been strictly construed.” Livera v. First Nat'l State Bank of N.J., 879 F.2d 1186,

1194 (3d Cir. 1989). Thus, the FTCA’s administrative exhaustion requirements are clear and

mandatory. Wilson v. City of Cherry Hill, No. 10-3866, 2011 WL 3651274, at *4 (D.N.J. Aug.

18, 2011). Furthermore, because the exhaustion requirement is a condition of the United States’

waiver of sovereign immunity, it is jurisdictional and cannot be waived. See White-Squire, 592

F.3d at 457 (relying on Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir.1971)); Shelton v.

Bledsoe, 775 F.3d 554, 569 (3d Cir. 2015).

In the present case, there is no question that Plaintiff did not complete the required

administrative procedures before filing the amended complaint on May 11, 2021. Accordingly,

Plaintiff’s common-law tort claims against the federal defendants are dismissed.7

IV. CONCLUSION

For the foregoing reasons, Moving Defendants’ motion to dismiss is GRANTED in part

and DENIED in part. All counts are dismissed with prejudice to the extent they are brought against

Moving Defendants in their official capacity. Counts I (§1983 Excessive Force), III (§1983

Failure to Intervene), V (§1983 First Amendment retaliation), VII (§1983 Fabrication of

Evidence), VIII (Bivens Fourteenth Amendment Fabrication of Evidence), and XII (NJCRA) are

dismissed. Counts IV (Bivens Failure to Intervene), VI (Bivens First Amendment retaliation), XIII

(Assault and Battery), and XIV (Negligence) are dismissed without prejudice. Moving

Defendants’ motion to dismiss is denied with respect to Count II (Bivens Excessive Force). An

appropriate Order shall follow.

DATED: April 29, 2022

/s/ Freda L. Wolfson

Hon. Freda L. Wolfson

U.S. Chief District Judge

7 The District of New Jersey has, however, permitted a plaintiff to amend a complaint after

subsequently exhausting administrative remedies where FTCA claims were not raised in initial

filings. See, e.g., Gillie v. Esposito, No. 14-3704, 2018 WL 6499864, at *4 (D.N.J. Dec. 11, 2018)

(“Plaintiff's FTCA administrative remedies were complete by the time he filed his motion to amend

. . . to add an FTCA cause of action. The Court therefore has jurisdiction over the FTCA

complaint.”). Here, Plaintiff may choose to follow the procedures as required under the FTCA

and move to amend her complaint in the event she can show that she has exhausted her

administrative remedies. The Court makes no comment as to the timeliness of such a filing,

however, and more than two years have passed since the underlying incident. (ECF No. 4, p. 4.)