ARIAS v. CITY OF TRENTON

*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

AMIN ARIAS,

Plaintiff,

Civil Action No.: 22-02585(FLW)

v.

OPINION

CITY OF TRENTON, et al.,

Defendants.

WOLFSON, Chief Judge:

Presently before the Court is a motion to dismiss plaintiff Amin Arias’ (“Plaintiff”)1

Complaint against the City of Trenton, and individuals Sheilah Coley (“Coley”),2 Timothy Long

(“Long”)3, among others, (together “Defendants”)4 for failure to state a claim pursuant to Fed. R.

of Civ. P. 12(b)(6). Plaintiff’s claims arise from Defendants’ alleged violations of Plaintiff’s Equal

Protection and Due Process rights, predicated on 42 U.S.C. § 1983, in connection with the Trenton

police department’s response to complaints of vandalism and suspected arson in the aftermath of

1 Nuevo Camino, LLC, the owner of a building located at 105 East Hannover St. in Trenton,

New Jersey, and Chikara Tomi, Inc., the owner and operator of New Jersey Licensed Alcohol

Beverage retail establishment doing business as “Tony Liquor” on the ground floor of the building

at 105 East Hannover St., are also listed as plaintiffs in the above-captioned lawsuit. For the

purposes of this Opinion, however, “Plaintiff” refers to Mr. Arias. Plaintiff is the sole member of

Nuevo Camino, LLC, and is the president and sole stockholder of Chikara Tomi.

2 Defendant Coley is the former Police Director of the City of Trenton.

3 Defendant Long is a sworn police officer of the City of Trenton.

4 The remaining defendants John Doe, Jane Doe, and ABC Co. are fictitious names

designated by Plaintiff as being one or more individuals or entities that may be identified through

pre-trial discovery as having liability for Plaintiff’s losses.

protests related to the murder of George Floyd. For the reasons set forth below, Defendants’

Motion is GRANTED. All claims against Defendants are dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The relevant facts are derived from Plaintiff’s Complaint and the attached exhibits.

Plaintiff is a resident of the Township of Hamilton and the owner of Tony Liquor, a liquor store

located in downtown Trenton, New Jersey, at 105 East Hannover St. (Complaint (“Compl.”) ¶¶

1.c-d, ECF No. 1.) Plaintiff also leases four residential dwelling units in the same building through

Nuevo Camino, LLC. (Id. ¶ 1.d.) Following the murder of George Floyd on May 26, 2020, several

protests were organized across the country to denounce police brutality. On Saturday, May 30,

2020, protestors organized in Trenton to demand police reform. (Id. ¶ 27.) The protest was

allegedly non-violent, and at the end of the day, the crowds dispersed without issue. (Id.) However,

according to Plaintiff, he had learned of a second protest planned for Sunday, May 31, and voiced

concern to Trenton Mayor Reed Gusciora that merchants could be subject to arson and looting.

(Id. ¶ 30.) Plaintiff alleges that he and his fellow merchants received assurance from Mayor

Gusciora that the City’s police department was alerted to the need to protect merchants. (Id. ¶ 31.)

On the evening of Sunday, May 31st, Plaintiff allegedly observed that the streets of

Trenton’s downtown business zone were lined with police vehicles from the City, the State Police

and the Mercer County Sheriff’s Office. (Id. ¶ 32.) Plaintiff alleges that while protesters were

reasonably peaceful at the start of the protest, by 8:00 PM, a group of individuals set fire to a police

vehicle parked on North Broad Street, in the near vicinity of the Capital Steps and Plaintiff’s liquor

store. (Id. ¶¶ 33-34.)

At approximately 7:30 PM, Plaintiff alleges that Trenton Police Director, Coley, was

actively engaged in deploying and monitoring police activity in the Downton Capital District

center of Trenton. (Id. ¶ 54.) During that timeframe, Trenton police protection for Trenton’s

Downtown District was allegedly supplemented by police officers from Morrisville and other

surrounding townships. (Id. ¶ 55.) According to Plaintiff, at 8:46 PM, he was at home when his

employee called to inform him that a crowd of people were preparing to break into his store with

large masonry blocks. (Id. ¶ 57.) Plaintiff allegedly called the City’s Radio Room dispatchers to

report the impending break and entry. (Id. ¶ 58.) Moments later, Plaintiff allegedly contacted the

dispatchers a second time to report smoke rising up from the first floor of the store to the upper

floor apartments. (Id. ¶ 59.)

In response to Plaintiff’s 911 emergency call, nine police officers, who had been stationed

at police headquarters awaiting assignments, were allegedly timely dispatched by Public Safety

Telecommunicators to Plaintiff’s liquor store. (Id. ¶ 61.) However, Plaintiff alleges that while

enroute to his building, Coley counter-ordered the dispatched officers to withdraw from the detail

and return to the staging area, reasoning that the specific officers lacked training in fire suppression

and an “exit strategy.” (Id. ¶ 62-64.)

Plaintiff avers that although Trenton police officers responded to many threats of

vandalism involving other Trenton businesses at the time of the incident, there is no record of

Coley canceling any other dispatched assignment due to lack of training, or experience, or for any

other reason. (Id. ¶ 66.) According to Plaintiff, Coley did not order the dispatched officers to

withdraw based on valid concerns, but rather Coley ordered the withdrawal of police protection

due to personal animus against Plaintiff borne out of prior interactions between Coley and

Plaintiff.5 (Id. ¶ 48.)

As a result of the withdrawn police protection, Plaintiff alleges that citizens were

undeterred from breaking into Plaintiff’s liquor store using large concrete blocks to smash through

the exterior windows and doors of the building and stripping the store of almost its entire inventory

of beverages. (Id. ¶¶ 67-68.) Plaintiff further alleges that security cameras captured individuals

breaking into the store, smashing open Plaintiff’s lottery ticket dispenser, and removing pre-paid

scratch-off tickets. (Id. ¶ 69.)

The following day, Plaintiff alleges that he complained to Mayor Gusciora about the lack

of initiative from the police to interview him or to search for fingerprints. (Id. ¶ 71.) Despite his

complaint on June 1, 2020, Plaintiff alleges that neither Coley, nor any police officer under her

administrative direction, appeared at his liquor store until June 23, 2020, to inquire about the extent

5 Plaintiff also alleges that Coley failed to respond appropriately to a prior incident in which

a customer had refused to show identification when purchasing alcohol and instead brandished a

handgun. (Id. ¶ 8.) In that regard, Plaintiff alleges that despite assuring him that she would look

into the police department’s lack of follow through in identifying the customer or his accomplice,

Coley misled him by later insisting that she had already told him of her efforts to follow up on the

status of the investigation when she in fact had not. (Id. at ¶¶ 17, 37-38.) Further, Plaintiff alleges

that despite his position as an officer of the Latino Merchants’ Association, he was not invited to

a meeting between members of the Latino community and Coley, and was later informed by the

Chief of Staff that “Coley doesn’t like [Plaintiff]” because “she thinks that he should be

investigated for things that he is doing wrong.” (Id. ¶¶ 17, 42-43.) Notwithstanding these incidents,

Plaintiff alleges that he requested to meet with Coley to discuss civic issues, but that Coley refused

to meet with him. (Id. ¶ 45.) Considering Coley’s alleged refusal to schedule meetings with him

to discuss relations between his organization and City leadership, Plaintiff allegedly attended a

public City Council meeting at which he intended to report Coley’s refusal to meet. (Id. ¶ 46.)

However, Plaintiff alleges that upon seeing Plaintiff preparing to address the City Council, Coley

abruptly left the chambers. (Id. ¶ 47.)

of damage to his property and / or to gather information, such as fingerprints and photographs,

from which to identify any of the 33 individuals that had broken into his store.6 (Id.)

On June 23, 2020, Plaintiff alleges that Trenton Police Captain Mark Keiver, Police Officer

Angel Turner, and Detective Sergeant Christopher Kurfuss visited Plaintiff’s liquor store to speak

with Plaintiff. (Id. ¶ 74.) At that time, Plaintiff allegedly declined to be interviewed by the police

as twenty-two days had lapsed since his complaint made on June 1, 2020. (Id. ¶ 76.) In response,

Plaintiff alleges that Capt. Keifer stated “we know you were not happy with the service . . . and

that’s why we’re here.” (Id. ¶ 84.)

On July 13, 2020, Plaintiff met with Sgt. Karfuss for a second time. (Id. ¶¶ 87-88.) At the

meeting, Sgt. Karfuss allegedly stated that he was following up on an earlier interview on June 1,

2020, between Police Officer Timothy Long and Plaintiff. (Id. ¶ 89.) When Plaintiff denied

knowledge of the interview, Sgt. Karfuss allegedly provided Plaintiff with an “Incident Report”

dated June 1, 2020. (Id. ¶ 90.) The Incident Report states that Officer Long was detailed at 12:12

P.M. on June 1, 2020, to Plaintiff’s liquor store. (See Incident Report, Ex. G.) Plaintiff denies

being interviewed by Officer Long on that day, or at any other time, and alleges that the report was

fabricated to create a paper record of an investigation into the May 31, 2020 break-in which never

occurred. (Compl., ¶ 95.) According to Plaintiff, evidence of the fabrication of the report includes

an incorrect description of Plaintiff’s height and weight, as well as Plaintiff’s employer. (Id. ¶ 96.)

Further, Plaintiff alleges that from 11:00 A.M. through 1 P.M. on June 1, 2020, Plaintiff could not

6 Plaintiff alleges that although there had been no police interview regarding the incident,

Plaintiff received a call from Police Officer Angel Turner on June 3, 2020. (Id. ¶ 80.) During the

call, Officer Turner allegedly asked whether she could obtain photographs of the individuals who

broke into Plaintiff’s store from the store’s security cameras. (Id.) However, Officer Turner

allegedly stated that “it was not necessary” to interview Plaintiff as to his knowledge of the break

in and his losses. (Id.) Consequently, Plaintiff allegedly declined to supply the requested security

camera photos. (Id.)

have met with Officer Long as he was fully occupied preparing for, and conducting, a store-front

press conference regarding the damages to his liquor store. (Id. ¶ 97.)

On March 30, 2022, Plaintiff filed an initial Complaint in New Jersey State court in which

he alleged the following claims under § 1983: deprivation of civil rights to equal police and fire

protection; intentional cancellation of available police protection and detective services; and

fabrication of evidence. The matter was later removed to this Court, and on June 23, 2022,

Defendants moved to dismiss Plaintiff’s Complaint pursuant to Rule 12(b)(6). (Motion to Dismiss

(“Mot. Dismiss”), ECF No. 4.)

II. STANDARD OF REVIEW

a. Rule 12(b)(6)

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)); United Van Lines, LLC v.

Lohr Printing, Inc., No. 11-4761, 2012 WL 1072248, at *2 (D.N.J. Mar. 29, 2012).

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. County 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. Section 1983 Equal Protection Claims

Plaintiff argues that Defendants deprived him of his rights to equal police and fire

protection and intentionally cancelled available police protection in violation of § 1983. (Compl.,

¶¶ 105-130.) In Plaintiff’s view, Coley violated § 1983 by usurping her powers as Police Director

and intentionally cancelling the dispatch of police officers to Plaintiff’s business who had already

been sent by the Trenton Police Public Safety Telecommunicators in response to complaints of

looting and arson. (Id. ¶ 107.) For the purposes of this Opinion, the Court addresses the two equal

protection claims together.

Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory . . . subjects, or causes to

be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity, or other proper

proceeding for redress. . . .

42 U.S.C. § 1983. The Equal Protection Clause of the Fourteenth Amendment provides that no

State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.

Amend. XIV, § 1. “This is not a command that all persons be treated alike but, rather, ‘a direction

that all persons similarly situated should be treated alike.’” Artway v. Attorney General of State

of N.J., 81 F.3d 1235, 1267 (3d Cir. 1996) (quoting City of Cleburne, Tex. v. Cleburne Living

Center, 473 U.S. 432, 439 (1985)). When a classification involves “fundamental personal rights”

or “suspect distinctions such as race, religion, or alienage,” it is subject to heightened scrutiny.

Cabrera v. Att’y Gen. United States, 921 F.3d 401, 404 (3d Cir. 2019) (citing City of New Orleans

v. Dukes, 427 U.S. 297, 303 (1976)). But a classification that involves neither fundamental rights

nor suspect classes is subject to the more deferential rational-basis review. Id. (citing Heller v.

Doe by Doe, 509 U.S. 312, 319 (1993)). Under the rational basis test, government action will be

upheld so long as it rationally furthers a legitimate, articulated state purpose. San Antonio

Independent School Dist. v. Rodriguez, 411 U.S. 1, 17 (1973).

Here, Plaintiff asserts a class of one equal protection claim based on the alleged differential

treatment arising out of irrational animus by Coley. Plaintiff alleges that Coley violated his rights

to equal police protection when she intentionally cancelled the police dispatch, despite permitting

the police to respond to complaints from several other nearby Trenton merchants. (Compl., ¶ 107.)

To establish a “class of one” claim, a plaintiff must allege that the defendant treated him differently

from other similarly situated persons, such differential treatment was intentional, and there was no

rational basis for the difference in treatment. See Hill v. Borough of Kutztown, 455 F.3d 225, 239

(3d Cir. 2006).

“Persons are similarly situated under the Equal Protection Clause when they are alike ‘in

all relevant aspects.’” Startzell v. City of Philadelphia, Pennsylvania, 533 F.3d 183, 203 (3d Cir.

2008) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). Under the rational basis standard,

“any rational ground for the conduct in question will suffice to defeat the class-of-one claim.”

Aulisio v. Chiampi, 765 F. App’x 760, 764–65 (3d Cir. 2019).

Defendants argue that they are entitled to qualified immunity on Plaintiff’s equal protection

claims. (See Defendants’ Motion to Dismiss (“Mot. to Dismiss”), pp. 18-21.) Specifically,

Defendants contend that Plaintiff has failed to establish that a constitutional right has been violated,

let alone a clearly established constitutional right. (Id., at pp. 20-21.)

Qualified immunity protects a government official from civil liability and suit “insofar as

[her] conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified

immunity considers both “the need to hold public officials accountable when they exercise power

irresponsibly and the need to shield officials from harassment, distraction, and liability when they

perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). As such,

qualified immunity shields “all but the plainly incompetent or those who knowingly violate the

law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

Courts partake in a two-step analysis to evaluate qualified immunity defenses: “We first

determine whether a right has been violated. If it has, we then must decide if the right at issue was

clearly established when violated such that it would have been clear to a reasonable person that

her conduct was unlawful.” Williams v. Secretary Pennsylvania Department of Corrections, 848

F.3d 549, 557 (3d Cir. 2017). However, “[c]ourts are free to examine the two prongs of the

qualified immunity analysis in either order. For efficiency, a court may elect to consider the

‘clearly established’ prong first because, if that prong is not satisfied, then qualified immunity

applies.” Muth v. Woodring, 666 F. App’x 137, 139 (3d Cir. 2016) (citations omitted).

“[T]he burden is on the defendants to establish they are entitled to qualified immunity.” E.

D. v. Sharkey, 928 F.3d 299, 306 (3d Cir. 2019). “Officials demonstrate they are entitled to

qualified immunity only if they can show that a reasonable person in their position at the relevant

time could have believed, in light of clearly established law, that their conduct comported with

recognized legal standards.” Id.

As to the second prong, “[t]he inquiry focuses on the state of the relevant law when the

violation allegedly occurred.” Williams, 848 F.3d at 570. “To be clearly established, a legal

principle must have a sufficiently clear foundation in then-existing precedent.” D.C. v. Wesby,

138 S. Ct. 577, 589 (2018). Stated simply, the rule must be “settled law.” Id. A principle is settled

law if it is dictated by “controlling authority” or a “consensus of cases of persuasive authority.”

Id. at 589–90 (internal quotations and citation omitted). “It is not enough that the rule is suggested

by then-existing precedent.” Id. at 590. Rather, “[t]he precedent must be clear enough that every

reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.”

Id.

The Third Circuit looks to the following courts to determine whether a right is clearly

established: the Supreme Court, the Third Circuit, and its sister circuits. See Porter v.

Pennsylvania Department of Corrections, 974 F.3d 431, 449 (3d Cir. 2020) (“[W]e look first for

applicable Supreme Court precedent. If none exists, we consider whether there is a case of

controlling authority in our jurisdiction or a robust consensus of cases of persuasive authority in

the Courts of Appeals that could clearly establish a right for purposes of qualified immunity.”)

(quoting Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 142 (3d Cir. 2017)

(internal citations, quotation marks, and alterations omitted)). The court may consider all relevant

cases, not just those cited by the parties. See Elder v. Holloway, 510 U.S. 510, 516 (1994)).

The Court begins its analysis with the clearly established prong.7 Defendants argue that a

generalized right to police protection is not clearly established. (See Mot. to Dismiss, p. 20.)

Defendants are correct that no general constitutional right to police protection has been recognized

by courts. Indeed, the Supreme Court and the Third Circuit have held that there is no such right.

See DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 195 (1989) (explaining

that “nothing in the language of the Due Process Clause itself requires the State to protect the life,

liberty, and property of its citizens against invasion by private actors”); Burella v. City of Phila.,

501 F.3d 134, 140 (3d Cir. 2007) (finding no constitutional right to police protection); see

also Davies v. Lehighton Police Dep’t, No. 91-3651, 1991 WL 125895, at *1 (E.D. Pa. June 27,

1991) (noting that “there is no general constitutional right to police protection, adequate or

otherwise”) (internal citation omitted); Reiff v. City of Phila., 471 F. Supp. 1262, 1265 (E.D. Pa.

1979) (“The Constitution does not explicitly or implicitly provide a right to adequate police

protection.”).

7 While the Court does not reach the question of whether Plaintiff has adequately alleged a

violation of a constitutional right, it does appear that Plaintiff has stated a class of one claim. As

stated above, to assert a “class of one” claim, a plaintiff must allege that the defendant treated him

differently from other similarly situated persons, such differential treatment was intentional, and

there was no rational basis for the difference in treatment. Hill, 455 F.3d at 239. Individuals are

similarly situated when they are “alike ‘in all relevant aspects.’” Startzell, 533 F.3d at 203 (citation

omitted). Here, it appears that Plaintiff’s liquor store is similarly situated in all relevant aspects to

the other stores that allegedly received police protection. Notably, notwithstanding Defendants’

contention that Plaintiff does not specify the geographic location of the other stores, it is evident

from the letters from the other merchants attached to Plaintiff’s Complaint that these stores are all

located within a very short radius of a few blocks from Plaintiff’s store and would have likely been

subject to police protection by Trenton police officers in the same department as those who were

initially dispatched to Plaintiff’s store. (See Compl., Ex. B.) Moreover, although Defendants

argue that there was a rational basis in the form of a city-wide emergency necessitating

discretionary decision-making concerning the allocation of limited resources, Plaintiff describes

several interactions with defendant Coley in his complaint that suggest the possibility of improper

motive behind Coley’s order to withdraw police protection from Plaintiff’s store. See supra.

However, contrary to Defendants’ position, the right at issue, here, is not simply a

generalized right to police protection. The right allegedly violated must be “define[d] . . . at the

appropriate level of specificity.” Peroza-Benitez v. Smith, 994 F.3d 157, 165 (3d Cir. 2021)

(quoting Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012)) (internal quotation marks omitted).

That is, it must be framed “in light of the specific context of the case, not as a broad general

proposition.” Id. (citation and internal quotation marks omitted). As such, I define the

constitutional right in this case as follows: the right under the Fourteenth Amendment’s Equal

Protection Clause to be free from disparate police protection based on the personal animus of the

decision maker.8

Next, with respect to determining whether this right was “clearly established” at the time

of the incident, I first turn “to factually analogous Supreme Court precedent, as well as binding

opinions from [the Third Circuit].” Peroza-Benitez, 994 F.3d at 165 (citing Fields v. City of Phila.,

862 F.3d 353, 361 (3d Cir. 2017)). Following that, I determine whether there exists a “robust

consensus of cases of persuasive authority in the Courts of Appeals.” Fields, 862 F.3d at 361

(quoting L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 247–48 (3d Cir. 2016)). “[I] may also take into

account district court cases, from within the Third Circuit or elsewhere.” Peroza-Benitez, 994 F.3d

at 165-66 (citation omitted).

Although the Supreme Court has recognized a “class of one” equal protection claim,

Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam), the Court has not done so in

the context of equal police protection. In Olech, the Supreme Court held that a property owner

had stated a class of one claim when she alleged that a village conditioned her access to municipal

8 This personal animus is different than the right to be free from disparate police protection

based on a suspect class, which is a well-settled right. See infra.

water supply on possession of a 33-foot easement from other properties, despite a requirement of

only a 15-foot easement from similarly situated property owners. Id. at 565. Given the significant

difference in facts currently before this Court, Olech is inapplicable here.

In Plaintiff’s Complaint, he cites Smith, a Sixth Circuit decision from 1973, in support of

his position that it is well-established that the deliberate denial of a citizen’s right to available

police and fire protection violates a citizen’s constitutional rights under section 1983, without

requiring evidence of racial motive. (See Compl., ¶ 110) (citing Smith v. Ross, 482 F.2d 33 (6th

Cir. 1973)). However, this case is not helpful to Plaintiff’s position. In Smith, African American

members of an interracial music band alleged that a local deputy sheriff and mayor violated their

civil rights when the deputy informed the band members’ landlord that the landlord would have to

evict them because Black residents were not welcome by the townspeople and threatened to

withdraw police protection. Id. at 34. The appellate court affirmed the district court’s dismissal

of appellants’ section 1983 claim, because the court found that threats of withdrawal of police

protection were not causally related to any racial animus on the part of the law enforcement. Id.

at 37.

It appears that Plaintiff relies on Smith because the Sixth Circuit noted that “a law

enforcement officer can be liable under § 1983 when by his inaction he fails to perform a statutorily

imposed duty to enforce the laws equally and fairly, and thereby denies equal protection to persons

legitimately exercising rights guaranteed them under state or federal law.” Id. at 36-37. The Court

acknowledges that this general proposition supports a right to equal police protection under section

1983. However, given its breadth, it is questionable whether this proposition would apply to the

present case. Indeed, what is clear is that in Smith, the bandmembers’ race was clearly at issue

under section 1983. In addition, the court went on to explain the circumstances surrounding the

passage of section 1983, which included the principal concern for protecting Black Americans

from widespread non-enforcement of the laws.9 Id. at 37. Therefore, to the extent that this broad

proposition could apply to the present case, for the reasons set forth below, the right in this case is

not clearly established.

The Court has identified only a single case from the Seventh Circuit that addresses the right

to be free from discriminatory police protection based on malice. See Hilton v. City of Wheeling,

209 F.3d 1005, 1007 (7th Cir. 2000). In Hilton, a white man alleged differential treatment by the

police from his white neighbors. Id. at 1006. There, the court reasoned that Hilton would have

stated an equal protection claim had he demonstrated evidence of an improper motive behind the

police’s alleged favorable treatment of Hilton’s neighbors. Id. at 1007. While the Seventh

Circuit’s decision in Hilton recognizes the possibility of an unequal police protection claim without

evidence of discrimination on the basis of a protected status, it is insufficient to comprise a “robust

consensus of cases of persuasive authority in the Courts of Appeals” necessary to satisfy the clearly

established requirement. Fields, 862 F.3d at 361 (citation and quotation marks omitted).

Indeed, Courts of Appeals have recognized the right to equal police protection without

discrimination based on race or gender. See DeShaney, 489 U.S. at 197 n. 3 (“The State may not,

of course, selectively deny its protective services to certain disfavored minorities without violating

the Equal Protection Clause.”) (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)); Mody v. City of

Hoboken, 959 F.2d 461, 466 (3d Cir.1992) (“discriminatory denial of police protection on the basis

of race constitutes a violation of section 1983”); see also, e.g., Hilton, 209 F.3d at 1007 (noting

9 Indeed, in its analysis, the appellate court explained that the remedies provided in section

1983 are most appropriately extended to “persons, who because of … the pervasiveness of racist

animus in the community, are not protected in their attempt to enjoy peacefully and on an equal

basis the civil rights guaranteed them under law.” Id. at 37 (citations omitted).

that “selective withdrawal of police protection, as when the Southern states during the

Reconstruction era refused to give police protection to their black citizens, is the prototypical

denial of equal protection.”); Estate of Macias v. Ihde, 219 F.3d 1018, 1028 (9th Cir. 2000)

(recognizing plaintiff’s right as a Hispanic woman to have police services administered in a

nondiscriminatory manner). Based on prior precedent, despite even the disturbing allegations

against former Police Director Coley, the Court finds that Defendants are entitled to qualified

immunity, because there is a dearth of cases discussing equal police protection in the specific

context of personal animus or malice towards an individual. See Shipp v. McMahon, 54 F. App’x

413 (5th Cir. 2002) (finding that defendants were entitled to qualified immunity because a “class

of one” equal protection claim for unequal police protection was not clearly established as of 1996).

b. Section 1983 Fabrication of Evidence Claim

Next, Plaintiff alleges that Defendants fabricated official police evidence in violation of 42

U.S.C. § 1983. Although Plaintiff brings his fabrication of evidence claim under the Fourteenth

Amendment’s Equal Protection Clause, because no such action exists under the Equal Protection

Clause, the Court construes Plaintiff’s section 1983 fabrication of evidence claim as arising under

the Due Process Clause of the Fourteenth Amendment. Plaintiff argues that Defendants fabricated

an incident report with the purpose of misleading the Court or counsel in a pending or anticipated

lawsuit as to the truth of a material issue of fact. (Compl., ¶ 135.) Specifically, Plaintiff alleges

that the June 1, 2020 Incident Report, describing an interview with Plaintiff regarding the damage

to his liquor store sustained on May 31, 2020, was fabricated by Officer Long on his own initiative

or under the orders of his superiors to rebut local press commentary on the Trenton Police

Department’s lack of investigation to identify or arrest any of the 33 individuals who looted

Plaintiff’s store. (Id. at ¶¶ 134-135.)

The Fourteenth Amendment states that:

No state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall

any state deprive any person of life, liberty, or property, without due

process of law . . .

U.S. Const. amend. XIV, § 1. The Third Circuit has recognized a standalone claim for fabrication-

of-evidence under the Procedural Due Process Clause of the Fourteenth Amendment. See Black

v. Montgomery Cty., 835 F.3d 358, 369 (3d Cir. 2016); Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d

Cir. 2014). Defendants aver that Plaintiff cannot establish a fabrication-of-evidence claim,

because he does not assert a deprivation of a protected life, liberty, or property interest. (See Mot.

to Dismiss, p. 30.) I agree.

Although the Third Circuit has not spoken directly to the nature of injury required to state

a fabrication-of-evidence claim, its recent decisions in Halsey and Black involved plaintiffs who

were unmistakably deprived of their liberty. For instance, the plaintiff in Halsey alleged that he

served 22 years in prison as a result of fabricated evidence that led to his indictment and wrongful

conviction. 750 F.3d at 291. Although the plaintiff in Black was not incarcerated, she also endured

various restraints on her liberty, including travel from California to Pennsylvania for pre-trial

hearings, posting unsecured bail of $50,000, and living under “the cloud of very serious charges.”

Black, 835 F.3d. at 367-68.

Here, unlike the plaintiffs in Halsey and Black, Plaintiff alleges no deprivation of a liberty

interest as a result of the allegedly fabricated evidence. Rather, Plaintiff avers that the alleged

fabricated incident report was used to cover up the Trenton Police’s alleged failure to timely

respond to Plaintiff’s complaints following the May 31st break-in. (Compl. ¶¶ 134-135.)

Importantly, Plaintiff does not allege any detriment to his liberty or property that would have been

averted had Defendants refrained from filing the alleged fabricated Incident Report. Indeed, at the

time of the execution of the Incident Report, Plaintiff had already allegedly sustained losses in

merchandise at his liquor store.

Even though the Third Circuit has yet to decide whether a plaintiff alleging a fabrication-

of-evidence claim must allege that he was deprived of his life, liberty, or property in some way,

several Courts of appeals have done so, and have held that such a showing is necessary. See, e.g.,

Cairel v. Alderden, 821 F.3d 823, 831 (7th Cir. 2016) (noting that to prevail on a fabrication-of-

evidence claim, “the plaintiff must have suffered a deprivation of liberty.”); Spencer v. Peters, 857

F.3d 789, 798 (9th Cir. 2017) (“To prevail on a § 1983 claim of deliberate fabrication, a plaintiff

must prove that (1) the defendant official deliberately fabricated evidence and (2) the deliberate

fabrication caused the plaintiff's deprivation of liberty.”); cf. Zahrey v. Coffey, 221 F.3d 342, 348

n.4 (2d Cir. 2000) (indicating that “[l]itigants sometimes speak of a ‘right to due process,’ . . . .

[b]ut the Constitution does not guarantee ‘due process’ in the abstract; it guarantees that ‘[n]o

person shall . . . be deprived of life, liberty, or property, without due process of law.’”) (fourth

and fifth alterations in original) (quoting U.S. Const. amend. V). Moreover, two courts in the

Western District of Pennsylvania have also recognized that a plaintiff must allege deprivation of a

liberty interest to state a procedural due process claim for fabrication-of-evidence. See Deforte v.

Borough of Worthington, 364 F. Supp. 3d 458, 481 (W.D. Pa. 2019), aff’d, 844 F. App'x 511 (3d

Cir. 2021); Pazicni v. Miller, No. 17-cv-117, 2017 WL 2418688, at *7 (W.D. Pa. June 5, 2017). I

am persuaded by the Courts of Appeals and district courts that have considered the issue, and find

that absent allegations of deprivation of life, liberty or property, Plaintiff’s fabrication-of-evidence

claim cannot proceed, and is therefore dismissed.

c. Monell Claim

Finally, as to defendant the City of Trenton, Plaintiff alleges that it violated section 1983

acting through defendant Coley’s decision to withdraw police protection to Plaintiff’s business.

(Compl., ¶ 107.) To establish a section 1983 claim against a municipality such as the City of

Trenton, a plaintiff must “demonstrate that municipal policymakers, acting with deliberate

indifference or reckless indifference, established or maintained a policy or well-settled custom

which caused a municipal employee to violate plaintiff’s constitutional rights and that such policy

or custom was the ‘moving force’ behind the constitutional tort.” Hansell v. City of Atlantic City,

152 F. Supp. 2d 589, 609 (D.N.J. 2001) (citation omitted); see also Schlaybach v. Berks Heim

Nursing & Rehabilitation, 839 F. App’x. 759, 760 (3d Cir. 2021) (affirming dismissal of Monell

claim where plaintiff did not sufficiently allege that county hospital had a history of providing

inadequate care to nursing home residents after they fall or was otherwise indifferent to their post-

fall medical needs and failed to allege a pattern of prior incidents evidencing deliberate

indifference). In asserting a custom or policy, the Third Circuit has explained that

A government policy or custom can be established in two ways.

Policy is made when a ‘decisionmaker possess[ing] final authority

to establish a municipal policy with respect to the action’ issues an

official proclamation, policy, or edict. A course of conduct is

considered to be a ‘custom’ when, though not authorized by law,

‘such practices of state officials [are] so permanently and well-

settled’ as to virtually constitute law.

McTiernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009) (alterations in original)

(quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). Further, “[c]ustom

requires proof of knowledge and acquiescence by the decisionmaker.” Id. at 636.

Here, Plaintiff has failed to allege any facts that suggest the City of Trenton or a

decisionmaker for the City of Trenton, promulgated a policy or custom of withdrawing police

support for Trenton merchants. In fact, Plaintiff makes clear that he is not arguing that the City of

Trenton failed to give police protection to all merchants who requested it, but that Coley selectively

deprived him of police protection that the City initially dispatched. (See Plaintiff’s Brief in

Opposition to Defendants’ Motion to Dismiss, (“Pl. Br.”) at p. 4.) In other words, Plaintiff alleges

that Coley targeted him—not anyone else—in violation of Plaintiff’s constitutional rights. Such

allegations of a single incident of selective deprivation based on animus are not the type of

allegations of persistent violations that may constitute a custom or policy. See, e.g., Banks v.

Gallagher, 686 F. Supp. 2d 499, 511 (M.D. Pa. 2009) (“an isolated incident is not sufficient to

show the existence of a custom or policy”); see also Losch v. Borough of Parkesburg, 736 F.2d

903, 911 (3d Cir. 1984) (“[a] policy cannot ordinarily be inferred from a single instance of

illegality”). Moreover, the Court questions whether Coley had the authority to adopt citywide

policy since, even according to Plaintiff, Civilian Police Directors are not sworn police officers,

and their authority is limited to the administration of all police department personnel employment

matters, including enforcement of disciplinary rules and regulations. (Compl., ¶¶ 50-51.) (citing

Jordan v. Harvey, 381 N.J. Super. 112, 118 (App. Div. 2005)). Accordingly, because Plaintiff has

not alleged any facts establishing a policy or custom on the part of the City of Trenton, Plaintiff’s

Monell claim cannot be sustained.10

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. All claims

against Defendants are dismissed.

10 Defendants separately argue that Plaintiff’s claims should be dismissed because they are

“really claims arising under the Mobs and Riots Act, N.J.S.A. 2A:48-1 to 48:7, of which the

statute of limitations has run.” (Mot. to Dismiss, p. 22.) The Court need not consider this

argument, however, as Plaintiff’s claims are dismissed on other independent grounds.

Date: November 30, 2022 /s/ Freda L. Wolfson

Hon. Freda L. Wolfson

U.S. Chief District Judge