KIRBY v. BOROUGH OF WOODCLIFF LAKE

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOHN KIRBY,

Plaintiff,

Civil Action No. 20-cv-01670

v.

OPINION & ORDER

BOROUGH OF WOODCLIFF LAKE, et al.,

Defendants.

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

This matter primarily involves 42 U.S.C. § 1983 claims arising out of Plaintiff John Kirby’s

arrest in February 2018. The following Defendants filed motions to dismiss the Second Amended

Complaint (“SAC”): (1) the Borough of Woodcliff Lake, the Woodcliff Lake Police Department,

Dennis Deangelis, Anthony Janicelli and Christopher C. Botta (collectively, the “Woodcliff Lake

Defendants”), D.E. 80; and (2) the County of Bergen (“County”), D.E. 81. Plaintiff filed

opposition to each motion, D.E. 82, 83, and the moving Defendants each filed a reply, D.E. 84, 85.

The Court reviewed the parties’ submissions1 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

1 The Court refers to Woodcliff Lake Defendants’ brief in support of their motion, D.E. 80-4, as

“Woodcliff Br.”; the County’s brief in support of its motion, D.E. 81-8, as “County Br.”; Plaintiff’s

opposition to the Woodcliff Lake Defendants’ motion, D.E. 82, as “Woodcliff Opp.”; Plaintiff’s

opposition to the County’s motion, D.E. 83, as “County Opp.”; the Woodcliff Lake Defendants’

reply, D.E. 85, as “Woodcliff Reply”; and the County’s reply, D.E. 84, as “County Reply”.

Woodcliff Lake Defendants’ motion is GRANTED in part and DENIED in part, and the

County’s motion is GRANTED.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

For purposes of the pending motion, the Court does not retrace this case’s full factual and

procedural history. This Court’s December 14, 2021 Opinion granting in part and denying in part

certain Defendants’ partial motions to dismiss the First Amended Complaint (“FAC”) includes a

detailed recounting of the factual background of this matter. D.E. 75 (“December Opinion”). The

Court incorporates the relevant factual and procedural history from the December Opinion.

In the December Opinion, the moving Defendants only sought to dismiss Counts V and IX

of the FAC. In Count V, Plaintiff asserted a Monell claim against the County based on the alleged

inadequate care that Kirby received at the Bergen County jail. FAC ¶¶ 79-86. In Count IX,

Plaintiff alleged that Botta and the Bergen County Prosecutors Office (“BCPO”) violated the New

Jersey Civil Rights Act (“NJCRA”), N.J. Stat. Ann. § 10:6-2. FAC ¶¶ 99-100. The Court partially

granted the BCPO’s motion and dismissed Count IX as to the BCPO with prejudice because it is

immune from suit under the NJCRA. Dec. Opinion at 7-13. The Court denied the motion as to

Botta because he argued that he was entitled to prosecutorial immunity under an incorrect standard.

Id. at 11. The Court also granted the County’s motion, concluding that Plaintiff failed to state a

Monell claim. Id. at 5-7. The Court granted Plaintiff leave to file an amended complaint to fix the

identified deficiencies as to the Monell claim and the claim against Botta. Id. at 13.

Plaintiff filed the SAC on January 13, 2022, and Defendants filed the instant motions to

dismiss. The Woodcliff Lake Defendants argue that the SAC should be dismissed pursuant to

Federal Rule of Civil Procedure 12(b)(6). D.E. 80. The County seeks to dismiss Count V, the sole

count asserted against it, pursuant to Rule 12(b)(6), or for the Court to covert the motion to one

for summary judgment pursuant to Federal Rule of Civil Procedure 56.2 D.E. 81.

II. LEGAL STANDARD

According to Rule 12(b)(6), a complaint may be dismissed when it fails “to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In analyzing a motion to dismiss

under Rule 12(b)(6), the Court will “accept all factual allegations as true, construe the complaint

in the light most favorable to the plaintiff, and determine whether, under any reasonable reading

of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d

224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir.

2002)). To survive dismissal, “a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief 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)). Determining whether a complaint

is plausible is a “context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 679. While not a “probability requirement,” plausibility

means “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678. “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.” Id. Additionally, a

court is “not compelled to accept unwarranted inferences, unsupported conclusions or legal

2 The County provides numerous pages of Plaintiff’s medical records from the Bergen County Jail

as an exhibit to its motion. The County argues that the Court should convert this motion to one

for summary judgment and consider the medical records. County Br. at 15. In the alternative, the

County maintains that the medical records are integral to the SAC, so the Court can consider them

in deciding the motion to dismiss. Id. at 14-15. The Court disagrees that it may consider the

medical records in a motion to dismiss, and the Court declines to convert the motion to one for

summary judgment.

conclusions disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir.

2007).

III. ANALYSIS

1. Claims Against the County

In Count V of the SAC, Kirby again asserts claims against the County due to the allegedly

inadequate medical care that he received as a pretrial detainee in the Bergen County jail. SAC ¶¶

86-09. Plaintiff also alleges that while he was detained, Bergen County failed to accommodate his

vegan diet and he was not permitted to bathe for four days. Id. ¶ 96. The County argues that

dismissal is appropriate because Plaintiff still fails to identify a policy or custom that led to a

violation of his rights. County Br. at 16-18.

Plaintiff appears to assert a direct claim against the County for its deliberate indifference

to his medical needs and dietary preferences. See SAC ¶¶ 91-95; see also County Opp. at 22-23

(arguing that Plaintiff states an Eighth Amendment deliberate indifference claim). A local

governing body “is only liable under § 1983 for constitutional violations that are caused by its

official policies and customs.” Porter v. City of Philadelphia, 975 F.3d 374, 383 (3d Cir. 2020).

A local governing body cannot be held liable based on the conduct of its employees under a theory

of respondeat superior. Monell v. Dept. of Social Services, 436 U.S. 658, 691 (1978). As a result,

the County cannot be directly liable for its alleged deliberate indifference to Plaintiff’s individual

medical needs or dietary concerns. Plaintiff must identify a policy or custom that led to the alleged

constitutional violation.3 See Meleika v. Bayonne Police Dep’t, No. 21-19793, 2022 WL 522810,

3 In his opposition brief, Plaintiff makes a similar argument for a Fourth Amendment false

imprisonment claim against the County. See County Opp. at 23-24. Count V, the only claim

asserted against the County, makes no mention of the Fourth Amendment or elements of a false

at *4 (D.N.J. Feb. 22, 2022) (explaining that for the City to be liable under § 1983, the law “would

require facts suggesting an unconstitutional municipal policy, practice, or custom”). Plaintiff fails

to do so.

For purposes of Monell liability, a policy exists “when a decisionmaker possessing final

authority to establish municipal policy with respect to the action issues an official proclamation,

policy, or edict.” Estate of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (quoting

Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)) (internal punctuation

omitted). A custom may be established “by showing that a given course of conduct, although not

specifically endorsed or authorized by law, is so well-settled and permanent as virtually to

constitute law.” Id. (quoting Brown v. Muhlenberg Township, 269 F.3d 205, 215 (3d Cir. 2001)).

This Court dismissed the Monell claim in Plaintiff’s initial complaint and the FAC because

Plaintiff’s allegations about a custom or policy were conclusory. MTD Opinion at 8; Dec. Opinion

at 5-7. In the December Opinion, the Court clearly explained that Plaintiff could not plausibly

plead a Monell custom or practice using only allegations about his personal experience as a pretrial

detainee at the Bergen County jail. Id.

Plaintiff now maintains that with his new allegations, he adequately pleads a Monell claim.

County Opp. at 18. In the SAC, Plaintiff pleads that the County “turned a blind eye to an obvious

inadequate practice that was likely to result in the violation of Plaintiff’s constitutional right

against cruel and unusual punishment.” SAC ¶ 101. Plaintiff further contends that the County’s

imprisonment claim. Plaintiff cannot amend the SAC to assert a false imprisonment claim through

his brief. Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“It

is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to

dismiss.”) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.1984)).

But even if Plaintiff did assert a false imprisonment claim against the County, it would be

dismissed for the same reason as Plaintiff’s purported deliberate indifference claim.

alleged failures are so obvious and apparent that they can only exist due to a policy or custom.

County Opp. at 18. But Plaintiff still relies solely on his personal experience, see, e.g., SAC ¶¶

91-95, and conclusory allegations, see, e.g., id. ¶ 102 (pleading that the County “promulgates the

policies and procedures of the Bergen County Jail, and therefore, knew or should have known of

the inadequate procedure for review of the medical needs of detainees”). Again, Plaintiff cannot

rely solely on his own experiences to establish that there was a custom or practice of ignoring

pretrial detainee’s medical needs at the Bergen County jail.4 See Brown v. City of Pittsburgh, 586

F.3d 263, 292 (3d Cir. 2009) (“[P]roof of a single incident of unconstitutional activity is not

sufficient to impose liability under Monell, unless proof of the incident includes proof that it was

caused by an existing . . . municipal policy” (quoting City of Oklahoma City v. Tuttle, 471 U.S.

808, 823-24 (1985))).

Plaintiff again relies on Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d

Cir. 2003), arguing that he supplemented his pleading to better reflect the Third Circuit’s decision

in that case. County Opp. at 18. Specifically, Plaintiff now pleads that the County “turned a blind

eye to an obviously inadequate practice[.]” SAC ¶ 101. But as previously explained, the Third

Circuit also relied on corroborating testimony from an employee addressing the defendant’s failure

to appropriately document new detainees’ immediate medical needs during their first few days of

incarceration. Natale, 318 F.3d at 585. Although Plaintiff added additional conclusory language

in the SAC to mimic the ruling in Natale, it does not change the fact that outside of conclusory

4 The Supreme Court has left open the “rare” possibility, that “in a narrow range of circumstances”

for a failure to train Monell claim, “a pattern of similar violations might not be necessary to show

deliberate indifference.” Connick v. Thompson, 563 U.S. 51, 63-64 (2011). A single incident may

be sufficient if the constitutional violation was an “obvious consequence” of the lack of training.

Id. at 63. But Plaintiff’s Monell claim is not based on the County’s alleged failure to train.

language, Plaintiff relies solely on his own personal experience. This is insufficient to plausibly

plead a Monell claim.

Plaintiff also contends that the Court should take judicial notice of “‘several’ complaints

regarding the medical care of inmates at the Bergen County jail over the last several years.”

County Opp. at 20. Plaintiff includes a copy of a January 31, 2019 Department of Homeland

Security (“DHS”) report addressing conditions of confinement for Immigration and Customs

Enforcement (“ICE”) detainees at the Bergen County jail, and a July 13, 2021 complaint alleging

civil and human rights violations based on the conditions of confinement for ICE detainees housed

at the Bergen County jail. Mcalindin Decl., Exs. D, E. Plaintiff maintains that both documents

are public records. County Opp. at 20-21.

In deciding a Rule 12(b)(6) motion, a court ordinarily considers only the factual allegations,

exhibits attached to the complaint, and matters of public record. Lum v. Bank of Am., 361 F.3d

217, 221 n.3 (3d Cir. 2004). “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). Defendant does not challenge Plaintiff’s assertion that either document is a public record.

As a result, the Court assumes, without deciding, that both documents are public records that can

be considered at this time.

The July 2021 complaint is a letter that three immigration advocacy groups sent to the DHS

Office of Civil Right and Civil Liberties. See Mcalindin Decl., Ex. E. The allegations in the 2021

complaint address incidents that occurred in 2021 and rely on the 2019 National Detention

Standards for Non-Dedicated Facilities and the CDC’s COVID-19 guidelines. See Mcalindin

Decl., Ex. E. Plaintiff was arrested and held at the Bergen County jail in February 2018. SAC ¶¶

18, 40. The County argues that Plaintiff cannot rely on events in 2021 to establish that a policy or

custom existed in 2018. See County Reply at 8-9. The Court agrees, noting that the alleged

violations are based on standards that post-date Plaintiff’s arrest and detention and involve issues

relating to COVID-19, which did not exist while Plaintiff was incarcerated.

The County makes the same argument for the DHS report – that Plaintiff’s allegations pre-

date the report. County Reply at 8-9, 11. Although published in 2019, the DHS Report resulted

from an onsite investigation from March 27-29, 2018. Mcalindin Decl., Ex. D. The conditions at

the Bergen County jail a month after Plaintiff’s detention are relevant to Plaintiff’s allegations as

to a policy or custom of providing inadequate medical care that may have existed at that time. The

Report identifies problems with screening, identifying, and providing timely care for detainees

with chronic health conditions, including diabetes, epilepsy, and HIV. Id. at 3. The Report states,

however, that “the care for detainees suffering from acute medical conditions is occurring in an

expeditious manner.” Id. Plaintiff’s medical condition falls into this latter category. Namely,

Plaintiff was receiving care for facial injuries he incurred during the assault that resulted in his

arrest. SAC ¶¶ 23-27; 29-33. The DHS report, therefore, fails to provide factual support for

Plaintiff’s conclusory allegation that there was a policy or custom of providing inadequate medical

care to pretrial detainees due to the type of care that Plaintiff required. See Clayton v. City of

Newark, No. 21-1289, 2021 WL 6062342, at *6 (D.N.J. Dec. 22, 2021) (rejecting argument that

any unconstitutional activity by police department would establish a custom of using excessive or

deadly force in connection with apprehending a suspect); Onuekwusi v. Graham, 20-2965, 2021

WL 1085523, at *11 (D.N.J. Mar. 22, 2021) (explaining that discussion of problems with police

reports in a DOJ report does not support inference of a policy or custom of unconstitutional

practices involving photo arrays). Consequently, neither document leads to the plausible inference

that the County had a policy or custom of providing inadequate acute medical care to pretrial

detainees at the Bergen County jail.

Because Plaintiff does not sufficiently identify a policy or custom that led to his injuries,

Plaintiff fails to state a Monell claim against the County. As a result, the County’s motion is

granted, and Count V is dismissed.

2. Entire Controversy Doctrine

The Woodcliff Lake Defendants seek to dismiss the SAC based on the entire controversy

doctrine. The Woodcliff Lake Defendants contend that because there are two state court matters

related to the same incident at issue here, the entire controversy doctrine bars Plaintiff’s claims in

this matter. Woodcliff Defs. Br. at 10-13. The entire controversy doctrine is “New Jersey's

specific, and idiosyncratic, application of traditional res judicata principles.” Rycoline Prods.,

Inc. v. C & W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997). It is an affirmative defense that may

be considered as grounds for dismissal under Rule 12(b)(6) if its application is clear from the face

of the complaint. Id.

Plaintiff argues that the entire controversy doctrine is inapplicable because it only requires

the joinder of claims, not parties. Woodcliff Opp. at 10-12. But the entire controversy doctrine is

inapplicable for a more basic reason. Specifically, “[o]ne of the prerequisites to the application of

res judicata . . . is the existence of a prior judgment that is final, valid, and on the merits.” Rycoline

Prods., Inc., 109 F.3d at 889. The Woodcliff Lake Defendants identify a state court case that

Plaintiff filed against four non-parties in this matter, that allegedly involves “the identical operative

set of facts.” Woodcliff Defs. Br. at 7-9. But no party indicates that a final judgment has been

entered in the state court matter. In fact, it appears that the parties are actively litigating the state

court matter. See McDonnell Cert., Ex. I. Consequently, the entire controversy doctrine is

inapplicable and the Woodcliff Lake Defendants’ motion is denied on these grounds.

3. Prosecutorial Immunity

Finally, the Woodcliff Lake Defendants maintain that the SAC must be dismissed as to

Defendant Botta due to the doctrine of prosecutorial immunity. Id. at 14-15. Botta was the

Woodcliff Lake Municipal Prosecutor when the alleged wrongful conduct occurred. SAC ¶ 13.

Under New Jersey law, “prosecutors enjoy only a limited form of immunity” for their official

conduct. Cashen v. Spann, 334 A.2d 8, 13 (N.J. 1975).5 In Cashen, the New Jersey Supreme

Court explained that a prosecutor is entitled to immunity, absent a showing that he “acted out of

personal motive, with malicious intent, or in excess of his jurisdiction.” Id. at 14.

In Count IX, the only claim that Plaintiff asserts against Botta, Plaintiff alleges that Botta

violated the NJCRA. Plaintiff alleges that Botta failed to keep Plaintiff informed about the status

of the criminal matter and to pursue the criminal complaints as Plaintiff desired, and in violation

of the Victim’s Rights Act. SAC ¶¶ 122-24. Plaintiff alleges that he informed Botta that he

intended to participate in the prosecution against Julian and Jacob, the two individuals that

allegedly assaulted Plaintiff. Plaintiff also expressed that he wished “to fully prosecute the case,”

and was prepared to assist the state with any pretrial preparation. SAC ¶ 61. Despite Plaintiff’s

statements, at the initial appearance, Botta made an oral application to dismiss the complaint. The

Court granted Botta’s application. Id. ¶ 63. Plaintiff additionally alleges that Botta never

contacted Plaintiff to discuss the case. Id. ¶ 64. Plaintiff, however, does not allege any facts that

5 In contrast, and as discussed in the FAC Opinion, “[u]nder federal law, prosecutors have absolute

immunity from civil liability for their conduct in their role as prosecutors.” See Newsome v. City

of Newark, No. 13-6234, 2014 WL 4798783, at *2 (D.N.J. Sept. 25, 2014)

lead to a reasonable inference that Botta acted with a personal motive or malicious intent, or that

his conduct was outside the scope of his responsibilities. Consequently, Botta is entitled to

prosecutorial immunity. Count IX, therefore, is dismissed.

Therefore, for the foregoing reasons and for good cause shown

IT IS on this 23rd day of June, 2022,

ORDERED that the County of Bergen’s motion to dismiss (D.E. 81) is GRANTED and

Count V is dismissed without prejudice; and it is further

ORDERED that the Woodcliff Lake Defendants’ motion (D.E. 80) is GRANTED in part

and DENIED in part; and it is further

ORDERED that the Woodcliff Lake Defendants’ motion is GRANTED with respect to

their argument about prosecutorial immunity and Count IX is dismissed without prejudice; and it

is further

ORDERED that the Woodcliff Lake Defendants’ motion is otherwise DENIED; and it is

further

ORDERED that as to counts that are being dismissed, they are dismissed without

prejudice. The Court, however, is not granting leave to file a third amended complaint at this time.

Instead, if during the course of discovery, Plaintiff believes that he has sufficient information on

which to make plausible allegations, Plaintiff may make a motion to amend at that time.

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