CARBONARO v. GLASSBORO POLICE DEPARTMENT

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ANTHONY J. CARBONARO and CAROL

MECCA, Civ. No. 1:22-cv-00617-NLH-EAP

Plaintiffs, OPINION

v.

GLASSBORO POLICE DEPARTMENT, et

al.,

Defendants.

APPEARANCES:

THOMAS J. GOSSE

126 WHITE HORSE PIKE

HADDON HEIGHTS, NJ 08035

Attorney for Plaintiffs

TODD J. GELFAND

BARKER, GELFAND & JAMES

LINWOOD GREENE

SUITE 12

210 NEW ROAD

LINWOOD, NJ 0822

Attorney for the Defendants Glassboro Police Department and

Pitman Police Department

JAE K SHIM

NEW JERSEY OFFICE OF THE ATTORNEY GENERAL

TORT LITIGATION

25 MARKET ST.

TRENTON, NJ 08625

Attorney for the Defendant Rowan University Police

MICHAEL VINCENT MADDEN

DAVID ELIOT MADDEN

MADDEN & MADDEN, PA

108 KINGS HIGHWAY EAST

SUITE 200

PO BOX 210

HADDONFIELD, NJ 08033-0389

Attorneys for the Defendants Gloucester County Prosecutor’s

Office and Gloucester County SWAT Officers Kevin R. Donahue

and Michael R. Fitzgibbon

HILLMAN, District Judge

Before the Court is Defendants Gloucester County

Prosecutor’s Office and Gloucester County SWAT Officers Kevin R.

Donahue and Michael R. Fitzgibbon’s Motion to Dismiss (ECF 11),

Rowan University Police Department’s Motion to Dismiss (ECF 12),

and Glassboro Police Department and Pitman Police Department’s

Motion to Dismiss (ECF 13).

For the reasons expressed below Defendants Gloucester

County Prosecutor’s Office and Gloucester County SWAT Officers

Kevin R. Donahue and Michael R. Fitzgibbon’s Motion to Dismiss

will be granted in part and denied in part. Rowan University

Police Department’s Motion to Dismiss will be granted.

Glassboro Police Department and Pitman Police Department’s

Motion to Dismiss will also be granted.

I. BACKGROUND

Plaintiffs allege in their complaint that on January 4,

2020 at approximately 7:33 p.m. Officers from the Glassboro

Police Department, Pitman Police Department, and Rowan

University Police arrived at Plaintiff Anthony J. Carbonaro’s

residence following an “alleged domestic dispute.” (ECF 1, Ex.

A ¶ 13). Plaintiffs allege that Carbonaro was asleep when

police arrived, and thus “did not respond to commands made

utilizing a patrol vehicle PA system asking him to come out.”

(Id. at ¶ 14).

Therefore, Gloucester County SWAT Officers were also called

to the residence. (Id.). Upon the Gloucester County SWAT

Officers’ arrival, police officers as well as the SWAT officers

surrounded the residence. (Id. at ¶ 15). When Carbonaro came

out of the residence, he was arrested. (Id.). His charges

included aggravated assault and resisting arrest, among other

charges not specified in the Complaint. (Id.).

Plaintiffs state that during the arrest Defendant SWAT

Officer Kevin R. Donahue “gave the command to fire on plaintiff”

and that Defendant SWAT Officer Michael R. Fitzgibbon “then

deployed one 40mm DefTec exact sponge round on plaintiff.” (Id.

at ¶ 16). Plaintiffs allege that this resulted in Carbonaro

“sustain[ing] injuries, including but not limited to, injury to

his left tibia.” (Id.). Plaintiffs assert that Carbonaro was

subjected to both physical and mental abuse during the course of

his arrest, and as a result “has been severely and permanently

injured, both physically and emotionally.” (Id. at ¶¶ 18–19).

On January 3, 2022, Plaintiffs Anthony J. Carbonaro and

Carol Mecca (collectively, “Plaintiffs”) filed their complaint

in the Superior Court of New Jersey. (ECF 1, Ex. A). In their

Complaint Plaintiff Carbonaro alleges: (1) violations of the

United States and New Jersey Constitutions, the New Jersey Civil

Rights Act, and the New Jersey Torts Claims Act against the

Glassboro Police Department, the Pitman Police Department, the

Rowan University Police, the Gloucester County Prosecutor’s

Office, and ABC Corporations 1-5 (Count I); (2) violations of

the United States and New Jersey Constitutions, the New Jersey

Civil Rights Act, and the New Jersey Torts Claims Act against

Kevin R. Donahue, Michael R. Fitzgibbon, Gloucester County SWAT

Officers, and John Does 1-10 (Count II); (3) Intentional

Infliction of Emotional Distress against Kevin R. Donahue,

Michael R. Fitzgibbon, Gloucester County SWAT Officers, and John

Does 1-10 (Count III); (4) Negligent Infliction of Emotional

Distress against Kevin R. Donahue, Michael R. Fitzgibbon,

Gloucester County SWAT Officers, and John Does 1-10 (Count IV);

(5) Negligence against Kevin R. Donahue, Michael R. Fitzgibbon,

Gloucester County SWAT Officers, and John Does 1-10 (Count V);

(6) Assault and Battery against Kevin R. Donahue, Michael R.

Fitzgibbon, Gloucester County SWAT Officers, and John Does 1-10

(Count VI); (7) Violation of the New Jersey Civil Rights Act

against Kevin R. Donahue, Michael R. Fitzgibbon, Gloucester

County SWAT Officers, and John Does 1-10 (Count VII); (8)

Vicarious Liability against the Gloucester County Prosecutor’s

Office and ABC Corporations 1-5 (Count VIII); (9) Failure to Act

against Kevin R. Donahue, Michael R. Fitzgibbon, Gloucester

County SWAT Officers, and John Does 1-10 (Count IX); and (10)

“Gross Negligence, Punitive Damages” against all defendants

(Count X). (Id. at ¶¶ 22–64).

Plaintiff Mecca, Carbonaro’s wife, alleges Loss of

Consortium against all defendants (Count XI). (Id. at ¶¶ 65–

67). In addition, in the Complaint Plaintiffs allege that

Carbonaro “served timely notice of his claim for damages as

prescribed by the New Jersey Tort Claim act.” (Id. at ¶ 20).

On February 7, 2022, Defendants Gloucester County

Prosecutor’s Office and Gloucester County SWAT Officers, Kevin

R. Donahue and Michael R. Fitzgibbon removed this action to the

United States District Court for the District of New Jersey.

(ECF 1).

On March 2, 2022, Defendants Gloucester County Prosecutor’s

Office and Gloucester County SWAT Officers Kevin R. Donahue and

Michael R. Fitzgibbon filed their Motion to Dismiss. (ECF 11).

On March 9, 2022, Rowan University Police Department filed its

Motion to Dismiss. (ECF 12). On March 14, 2022, Glassboro

Police Department and Pitman Police Department filed their

Motion to Dismiss. (ECF 13). Plaintiffs filed their Response

to all of Defendants’ motions to dismiss on April 26, 2022.

(ECF 16). On May 3, 2022, Defendants Gloucester County

Prosecutor’s Office, Kevin R. Donahue, and Michael R. Fitzgibbon

filed their Reply. (ECF 17). On May 3, 2022, Rowan University

Police Department filed its Reply. (ECF 18). Finally, on May

5, 2022, Glassboro Police Department and Pitman Police

Department filed their Reply. (ECF 19).

II. LEGAL STANDARD

When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted

pursuant to Federal Rule of Civil Procedure 12(b)(6), a court

must accept all well-pleaded allegations in the complaint as

true and view them in the light most favorable to the plaintiff.

Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). A pleading

is sufficient if it contains “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (alteration in original) (citation

omitted).

To determine the sufficiency of a complaint, a court must

take three steps: (1) the court must take note of the elements a

plaintiff must plead to state a claim; (2) the court should

identify allegations that, because they are no more than

conclusions, are not entitled to the assumption of truth; and

(3) when there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief. Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 664, 675, 679 (2009) (alterations,

quotations, and other citations omitted).

A court in reviewing a Rule 12(b)(6) motion must only

consider the facts alleged in the pleadings, the documents

attached thereto as exhibits, and matters of judicial notice.

S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,

181 F.3d 410, 426 (3d Cir. 1999). “A motion to dismiss should

be granted if the plaintiff is unable to plead ‘enough facts to

state a claim to relief that is plausible on its face.’”

Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at 570).

III. DISCUSION

A. Subject Matter Jurisdiction

This Court has jurisdiction over Plaintiffs’ claims under

28 U.S.C. § 1331, 28 U.S.C. § 1343(3), and 28 U.S.C. § 1367.

B. Prosecutor Defendants

The first group of defendants that have sought dismissal

of the Complaint includes the Gloucester County Prosecutor’s

Office as well as Gloucester County SWAT Officers Kevin R.

Donahue and Michael R. Fitzgibbon (collectively, “Prosecutor

Defendants”). The Complaint explains that the Gloucester County

SWAT Officers, Donahue and Fitzgibbon, are “employed by the

County of Gloucester under the direction of the Gloucester

County Prosecutor’s Office.” (ECF 1, Ex. A at ¶¶ 4–5). It

seeks to hold the Gloucester County Prosecutor’s Office

vicariously liable for the SWAT Officer’s actions. (Id. at ¶¶

52–56).

i. Supervision by New Jersey Attorney General

The Prosecutor Defendants allege that they should be

dismissed because they are not the proper defendants. (ECF 11

at 18). They explain that while the county is responsible for

claims against prosecutors arising out of their administrative

functions, “the New Jersey Attorney General is responsible for

supervising a county prosecutor’s law enforcement activities.”

(Id. at 16). Moreover, they argue that “when a county’s

prosecutor’s office provides training and supervisory activities

over police officers, the county’s prosecutor’s office is acting

within their law enforcement function.” (Id. at 18). The

Prosecutor Defendants assert that the allegations related to

these defendants are related to Donahue giving “command to fire

on plaintiff” and Fitzgibbon “deply[ing] one 40mm DefTec exactly

sponge round,” which are “clearly law enforcement functions.”

(Id.).

Plaintiffs do not directly respond to this argument in

their Response. They instead point to facts that they argue

support their specific claims. (ECF 16 at 7–9). They do,

however, allege that “[a]n unprovoked and unjustified shooting

of an individual is sufficient evidence to support a finding

that law enforcement was acting intentional or maliciously.”

(ECF 16 at 8).

The caselaw that the Prosecutor Defendants cite to in

support of this argument addresses the issues of indemnification

for the actions of prosecutors, and thus whether the county or

state is responsible for the defense and indemnification of

prosecutors. In Wright v. State, the Supreme Court of New

Jersey held that “when county prosecutors and their subordinates

are involved in the investigation and enforcement of the State’s

criminal laws, they perform a function that has traditionally

been the responsibility of the State and for which the Attorney

General is ultimately answerable.” Wright v. State, 778 A.2d

443, 464 (N.J. 2001). Thus, “the State should be obligated to

pay the county prosecutors and their subordinates’ defense costs

and to indemnify them if their alleged misconduct involved the

State function of investigation and enforcement of the criminal

laws.” Id. This obligation is limited, however, in that “the

State’s duty to indemnify and defend county prosecutors and

their subordinates is limited to acts or omissions that do not

involve actual fraud, actual malice or willful misconduct, see

N.J.S.A. 59:10A and N.J.S.A. 59:10–2.” Id. at 465.

The Prosecutor Defendants’ argument that they should be

dismissed as not the proper party because the state is the real

party in interest is part and parcel of their Eleventh Amendment

immunity argument. Thus, we will not address this as a separate

argument at this time, and instead will proceed to analysis of

Eleventh Amendment Immunity.

ii. Eleventh Amendment Immunity

The Prosecutor Defendants assert that the claims against

them must be dismissed because they are immune from suit as the

State is the real party in interest.

The Eleventh Amendment provides:

The Judicial power of the United States

shall not be construed to extend to any suit

in law or equity, commenced or prosecuted

against one of the United States by Citizens

of another State, or by Citizens or Subjects

of any Foreign State.

U.S. Const. amend. XI. “‘That a State may not be sued without

its consent is a fundamental rule of jurisprudence having so

important a bearing upon the construction of the Constitution of

the United States that it has become established by repeated

decisions of this court that the entire judicial power granted

by the Constitution does not embrace authority to entertain a

suit brought by private parties against a State without consent

given.’” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.

89, 98 (1984) (quoting Ex parte State of New York No. 1, 256

U.S. 490, 497 (1921)). The Supreme Court in Hans v. Louisiana,

134 U.S. 1 (1890), “extended the Eleventh Amendment’s reach to

suits by in-state plaintiffs, thereby barring all private suits

against non-consenting States in federal court.” Lombardo v.

Pa. Dep’t of Pub. Welfare, 540 F.3d 190, 194 (3d Cir. 2008).

“The State of New Jersey has not waived its sovereign immunity

with respect to § 1983 claims in federal court.” Mierzwa v.

United States, 282 F. App’x 973, 976 (3d Cir. 2008) (citing

Ritchie v. Cahall, 386 F. Supp. 1207, 1209–10 (D.N.J. 1974)).

The Eleventh Amendment protects state agencies when “‘the

state is the real party in interest.’” Beightler v. Office of

Essex County Prosecutor, 342 F. App’x 829, 832 (3d Cir. 2009)

(quoting Fitchik v. New Jersey Transit Rail Operations, 873 F.2d

655, 658 (3d Cir. 1989). Courts consider three factors to

determine whether Eleventh Amendment immunity applies to a state

agency: “(1) the source of the agency’s funding--i.e., whether

payment of any judgment would come from the state’s treasury;

(2) the status of the agency under state law; and (3) the degree

of autonomy from state regulation.” Id. (quoting Fitchik, 873

F.2d at 659). When evaluating whether immunity applies, “it is

the entity’s potential legal liability, rather than its ability

or inability to require a third party to reimburse it, or to

discharge the liability in the first instance, that is relevant”

to the Eleventh Amendment inquiry. Regents of the Univ. of Cal.

v. Doe, 519 U.S. 425, 431 (1997).

Courts considering these three factors have found that in

New Jersey, the office of the county prosecutor is immune under

the Eleventh Amendment. See, e.g., Beightler v. Office of Essex

County Prosecutor, 342 F. App’x at 832; Briggs v. Moore, 251 F.

App’x 77, 79 (3d Cir. 2007); Sabatino v. Union Twp., 2012 WL

313986 (D.N.J. Jan. 31, 2012); Palmerini v. Burgos, No. 10–cv-

210, 2011 WL 3625104 at * 8 (D.N.J. Aug. 15, 2011) (“[C]ourts

within the Third Circuit have consistently and uniformly held

that the Eleventh Amendment precludes federal suits against New

Jersey county prosecutors, as well as their offices and staff,

arising out of their law enforcement functions on the basis that

the real party in interest in these suits is the State of new

Jersey”); Watkins v. Attorney General of New Jersey, No. 06–cv-

1391, 2006 WL 2864631, at * 3 (D.N.J. Oct. 4, 2006) (“[A county

prosecutor’s office] is not subject to suit under § 1983 because

the Prosecutor’s Office is not a government entity which can be

sued under § 1983 separate from the individual who is the county

prosecutor or the governmental entity that the county prosecutor

serves”).

Similarly, employees of county prosecutor’s offices are

entitled to Eleventh Amendment immunity against suit in their

official capacity. This immunity does not extend to claims

against prosecutor employees in their individual capacities.

Hafer v. Melo, 502 U.S. 21, 31, 112 S. Ct. 358, 365, 116 L. Ed.

2d 301 (1991).

Here, the Prosecutor Defendants explain that the

allegations relate to their law enforcement activities. (ECF

11-1 at 22). Second, they allege that “county prosecutors in

New Jersey are an ‘agent of the state when they engage in law

enforcement activities.’” They point out that with respect to

the SWAT officers Plaintiffs set out in their Complaint that

they were “officers employed by the County of Gloucester under

the direction of the Gloucester County Prosecutor’s Office when

the alleged conduct occurred.” (ECF 11-1 at 23 (citation

omitted)). As for the prosecutor’s office, the Complaint

establishes that the Gloucester County Prosecutor’s Office “is

charged with the responsibility of establishing and enforcing

policies for the training and actions of its employees, as well

as the actual supervision of its employees.” (Id. at 24–25).

Third, the Prosecutor Defendants argue that “because

the Attorney General has broad statutory authority to supervise

county prosecutors’ offices in practically any proceeding and to

dictate policies, “when performing its prosecutorial function, a

county prosecutor’s office ‘is not autonomous from the state.’”

(ECF 11-1 at 25 (citation omitted). Plaintiffs do not respond

to the Prosecutor Defendants’ assertion of immunity.

This Court finds that in general the State of New Jersey

is the real party in interest where the Gloucester County

Prosecutor’s Office and its employees in their official

capacity, the SWAT officers, are sued under § 1983 in the

Complaint. Because the NJCRA is modeled after § 1983 and there

is no express waiver of sovereign immunity in the NJCRA, this

analysis similarly applies to the NJCRA claims. Kirby v.

Borough of Woodcliff Lake, No. 20-CV-01670, 2021 WL 5905712, at

*6 (D.N.J. Dec. 14, 2021). Therefore, the Court will dismiss

with prejudice the claims against Gloucester County Prosecutor’s

Office and SWAT Officers Kevin R. Donahue and Michael R.

Fitzgibbon in their official capacities from this action because

they are immune under the Eleventh Amendment.

The Eleventh Amendment does not provide immunity for SWAT

Officers Donahue and Fitzgibbon in their individual capacities.1

Thus, Plaintiff Carbonaro’s claims against Donahue and

Fitzgibbon in their individual capacities will be permitted to

proceed.

iii. Monell liability under § 1983

Plaintiffs did not allege a Monell claim in the Complaint,

nor do they point to Monell in support of their § 1983 claim in

their responsive pleading. However, we will address the

Prosecutor Defendants’ argument that Monell would not support a

finding of liability against them because we have concluded that

we must dismiss these defendants as immune, and thus it is

important to assess whether Plaintiffs have any viable arguments

such that permitting amendment may be fruitful or whether

amendment would be futile. Fletcher-Harlee Corp. v. Pote

Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007)

(“district courts must offer amendment--irrespective of whether

it is requested--when dismissing a case for failure to state a

claim unless doing so would be inequitable or futile.”).

1 The Court notes that the SWAT Officers may be entitled to

absolute or qualified immunity. See, e.g., McArdle v. Tronetti,

961 F.2d 1083 (3d Cir.1992); Schrob v. Catterson, 948 F.3d 1402

(3d Cir.1991). However, we expressly reserve judgment on this

issue as this issue is not presently before the Court.

“‘[A] Plaintiff cannot circumvent the State’s sovereign

immunity by alleging Monell liability under section 1983.

Specifically, Monell liability only attaches to local

governments, and does not attach to the State or its agencies.’”

Lepping v. Cnty. of Mercer, No. 18-02118, 2018 WL 5263281, at *8

(D.N.J. Oct. 23, 2018) (citations omitted).

The Prosecutor Defendants assert that they are not a

“person” within § 1983. (ECFG 11-1 at 30). They argue that

Plaintiffs could not bring a Monell claim against them because

Monell only applies to municipalities and local governments, and

not to state agents such as the Prosecutor defendants, who are

not ‘persons’ subject to a 42 U.S.C. § 1983 action.” (ECF 11-1

at 31).

Because we have determined that the Prosecutor Defendants

are an arm of the state pursuant to the Eleventh Amendment,

Plaintiffs could not assert a Monell claim against them.

iv. Tort Claims Act Notice

The New Jersey Tort Claims Act provides that “[n]o action

shall be brought against a public entity or public employee

under this act unless the claim upon which it is based shall

have been presented in accordance with the procedure set forth

in this chapter.” N.J. Stat. Ann. § 59:8–3. The Tort Claims Act

further describes the various information that a claim must

include, see id. § 59:8–4, and instructs that “[a] claim for

damage or injury arising under this act against the State shall

be filed either with (1) the Attorney General or (2) the

department or agency involved in the alleged wrongful act or

omission [,]” while “[a] claim ... against a local public entity

shall be filed with that entity.” See id. § 59:8–7.

Further, “[a] claim shall be presented to the public

entity by delivering it to or mailing it certified mail to the

office of the Attorney General or the office of the State agency

allegedly involved” or “may be presented to a local public

entity by delivering it or mailing it certified mail to the

entity.” Id. § 59:8–10. “A claim relating to a cause of action

for death or for injury or damage to person or to property

[must] be presented ... not later than the 90th day after

accrual of the cause of action.” Id. § 59:8–8. The “claimant

shall be forever barred from recovering against a public entity

or public employee if ... [t]he claimant failed to file the

claim with the public entity within 90 days of accrual of the

claim[.]” Id.

The Prosecutor Defendants allege that Plaintiff Mecca did

not serve them with a Notice of Tort Claim for her loss of

consortium claim. They further allege that her loss of

consortium claim “sound[s] in tort and as such a Notice of Tort

Claim must have been served on the Prosecutor defendants for

Plaintiff Mecca’s loss of consortium claim to survive.” (ECF

11-1 at 37). Plaintiffs have not responded to this argument.

The Complaint avers that Plaintiff Carbonaro served

“timely notice of claim” pursuant to the New Jersey Tort Claim

Act. (ECF 1, Ex. A at ¶ 21). The Complaint is silent as to

Plaintiff Mecca. The fact that Plaintiff Mecca failed to serve

notice of her tort claim upon the Prosecutor Defendants provides

an additional reason her loss of consortium claim must be

dismissed.

C. Rowan University Police Officers Defendants

i. Rowan University is not a “Person” Subject to

Suit under § 1983 or the NJCRA

A plaintiff may have a cause of action under 42 U.S.C. §

1983 for certain violations of his constitutional rights.

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 ....

Thus, to state a claim for relief under § 1983, a plaintiff must

allege, first, the violation of a right secured by the

Constitution or laws of the United States and, second, that the

alleged deprivation was committed or caused by a person acting

under color of state law. West v. Atkins, 487 U.S. 42, 48

(1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir.2011).

A state university and its police department is not a

“person” under § 1983 because it is an alter ego of the state.

Davis v. W. Psychiatric Inst. & Clinic, 146 F. App’x 563, 565

(3d Cir. 2005); Cottrell v. Norman, No. CIV.A. 12-1986, 2014 WL

3729215, at *7 (D.N.J. July 25, 2014). Thus, Plaintiffs are

barred from asserting a § 1983 action against Rowan University

Police. As stated above, because the NJCRA is modeled after §

1983 and there is no express waiver of sovereign immunity in the

NJCRA, Plaintiffs are also barred from asserting their NJCRA

claims against Rowan University. Didiano v. Balicki, 488 F.

App’x 634, 638-39 (3d Cir. 2012). Because Rowan University is

immune from suit under § 1983 and the NJCRA as an arm of the

state, all of Plaintiffs’ constitutional claims and NJCRA claims

against them must be dismissed. This leaves Plaintiffs’ New

Jersey Torts Claims Acts claims against Rowan, as Rowan did not

present any immunity argument with respect to the NJTCA claims.

ii. Failure to State a Claim

We note that Rowan set out specific arguments related to

the claims in the Complaint, arguing that Plaintiffs have failed

to plead sufficient facts to state a claim upon which relief can

be granted. It alleges that each of Plaintiffs’ claims against

it is plead in a conclusory fashion, and that all of the claims

lack factual support sufficient to plead a claim under the

federal pleading standard. (ECF 12-1 at 17–18 20–25). We will

only reach analysis of the NJTCA claims, as we have already

determined that Rowan is immune from suit under § 1983 and the

NJCRA.

Rowan asserts that “Plaintiff has not pointed to any

actions taken by the Rowan University Police, or any of its

employees, that would lead to liability pursuant to the Tort

Claims Act.” (ECF 12-1 at 25). They claim that “Plaintiff

merely, and impermissibly, attempts to plead conclusory

allegations against the Defendants as a group.” (Id.).

The operative Complaint is threadbare and conclusory.

Limiting our scope to the facts as alleged in the Complaint,

Plaintiffs do not state a claim against Rowan pursuant to the

New Jersey Tort Claims Act. Thus, the NJTCA claims against

Rowan will be dismissed. However, we must determine whether it

would be futile to permit Plaintiffs to amend. To this end, we

consider the additional allegations that Plaintiffs set out in

their Response. Plaintiffs to do put forth any additional

allegations specific to Rowan. Upon consideration of the

allegations in the operative Complaint as well as the additional

context provided in the Response, we find that amendment to

include additional allegations against Rowan would be futile.

Thus, the NJTCA claims against Rowan will also be dismissed with

prejudice.

D. Glassboro Police Department and Pitman Police

Department Defendants

Glassboro Police Department and Pitman Police Department

argue that the Complaint should be dismissed against them for

the same reasons set out in Defendant Rowan University Police’s

motion to dismiss. (13-1 at 5). Thus, this Court considers the

arguments brought by Rowan University Police as they relate to

Glassboro and Pitman Police Departments. First, we address the

issue of whether the Glassboro and Pitman Police Departments

constitute a “person” subject to suit under § 1983 and the

NJCRA. Second, we address whether Glassboro and Pitman Police

Departments are proper parties. Third, we address the argument

that Plaintiffs have failed to state a claim upon which relief

can be granted.

i. Glassboro Police Department nor Pitman Police

Department is not a “Person” Subject to Suit

under § 1983 or the NJCRA

A municipal police department is not a person subject to

suit in a civil rights action as it is not a separate judicial

entity from the municipality itself. Mikhaeil v. Santos, 646 F.

App’x 158, 163 (3d Cir. 2016). Although local governmental

units may constitute “persons” against whom suit may be lodged

under § 1983, a city police department is a governmental sub-

unit that is not distinct from the municipality of which it is a

part. Id. Thus, the Glassboro Police Department and Pitman

Police Department must be dismissed.

ii. Glassboro Police Department and Pitman Police

Department Additional Grounds for Dismissal

Glassboro and Pitman Police Departments assert that they

are not a proper party to this matter. They aver that police

departments are merely an administrative arm of the municipality

and cannot be sued in conjunction with municipalities. (ECF 13-

1 at 8). Thus, they claim that the respective municipalities

are the appropriate party. However, they further claim that an

amendment to cure this issue would be futile because “[t]here is

a more fundamental flaw in the Civil Rights Act claims here . .

. in that the municipal defendants are sued without any factual

allegations to suggest that one or more of the officers

committed a constitutional violation.” (ECF 13-1 at 9).

In Monell v. Department Social Services of New York City

“the Supreme Court established that municipalities and other

government entities were ‘persons’ subject to liability under 42

U.S.C. § 1983.” Noble v. City of Camden, 112 F. Supp. 3d 208,

221 (D.N.J. 2015) (citing Monell, 436 U.S. 658, 690-92 (1978)).

For a claim against a municipality under § 1983, a municipality

cannot be held liable under a theory of respondeat superior, but

instead a municipality may be liable under § 1983 “if the

plaintiff identifies a municipal ‘policy’ or ‘custom’ that was

the ‘moving force’ behind the injury.” Jewell v. Ridley

Township, 497 F. App’x 182, 185 (3d Cir. 2012) (quoting Monell

v. Dept. of Social Servs. of City of N.Y., 436 U.S. 658, 691

(1978)). A policy exists “when a decision-maker with final

authority issues an official proclamation, policy, or edict.”

Noble v. City of Camden, 112 F. Supp. 3d 208, 221 (D.N.J. 2015)

(internal quotations and citations 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.

(internal quotations and citations omitted).

The Glassboro and Pitman Police Departments argue that

amendment to sue the respective municipalities would be futile

because “Plaintiff has not factually pleaded any action or

omission on the part of any Glassboro or Pitman police officer

which could even remotely be argued as a constitutional

violation.” (ECF 13-1 at 10).

Similarly, with respect to the NJCRA claims, Glassboro and

Pitman argue: As to the common law tort claims, there is no

factual basis for any such claim as to Pitman and Glassboro. The

only facts pleaded as to those boroughs’ officers suggests that

officers responded to a call and remained on the perimeter of

the property.” (EC 13-1 at 11).

Glassboro Police Department and Pitman Police Department

must be dismissed because the police departments are not

separate judicial entities subject to suit under § 1983.

Padilla v. Twp. of Cherry Hill, 110 F. App’x 272, 278 (3d Cir.

2004). Police departments are “merely an administrative arm of

the local municipality.” Id. The same is true under the NJCRA,

as the NJCRA is modeled after § 1983 and there is no express

waiver of sovereign immunity in the NJCRA. Kirby v. Borough of

Woodcliff Lake, No. 20-CV-01670, 2021 WL 5905712, at *6 (D.N.J.

Dec. 14, 2021). As such, the claims alleged against the police

departments here should have been brought against the respective

municipalities. Accordingly, the Glassboro Police Department

and the Pitman Police Department will be dismissed with

prejudice.

iii. Failure to State a Claim

Glassboro and Pitman Police Departments argue that

“Plaintiff has not factually pleaded any action or omission on

the part of any Glassboro or Pitman police officer which could

even remotely be argued as a constitutional violation.” (ECF

13-1). Moreover, “no facts are pleaded which suggest what any

of the municipal police officers did or failed to do which

constitutes a violation of any of the cited provisions.” (Id.).

They assert that if there were any factual allegations, then the

court should “turn to the arguments made by Defendant Rowan

University Police” regarding Plaintiffs failure to state a

claim. (ECF 13-1 at 11). However, Glassboro and Pitman argue

this Court need not reach such analysis. Similarly, with

respect to the Tort Claims they assert that “there is no factual

basis for any such claim as to Pitman and Glassboro.” (ECF 13-1

at 11).

In their response, Plaintiffs detail new facts in support

of their claims against Glassboro and Pitman. They allege that

Pitman fielded the initial police call, and transferred the call

to Glassboro Police Department. (ECF 16 at 9). Then, Glassboro

“orchestrated the entire response,” calling the Rowan University

Police as well as the Gloucester County SWAT Officers. (Id.).

In addition, they gave orders including “to set the perimeter .

. . with guns and rifles drawn” which “provid[ed] the SWAT Team

with the authority to shoot.” (Id.). Further, “the arrest and

the subsequent mistreatment and abuse suffered by the plaintiff

during and after his arrest and the wrongful filing of a charge

of resisting arrest were done by members of the Glassboro Police

Department.” (Id.). Plaintiffs conclude that “the Glassboro

Police Department acted in concert with all law enforcement

people on the scene to violate the plaintiff’s constitutional

rights and commit other tortious acts against the plaintiff.

This most importantly included shooting this ill, 71-year-old

man on his own front lawn and then nearly choking him to death.”

(Id.).

Limiting our scope to the facts as alleged in the

Complaint, the Complaint does not meet the Twombly/Iqbal

standard for pleading. However, we will not engage in an

analysis of each individual claim here, where we have determined

that the claims against Glassboro Police Department and Pitman

Police Department must be dismissed because they are not the

proper party.

iv. Opportunity to Amend

The Third Circuit has explained that “in civil rights

cases district courts must offer amendment—irrespective of

whether it is requested—when dismissing a case for failure to

state a claim unless doing so would be inequitable or futile.”

Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482

F.3d 247, 251 (3d Cir. 2007). Although we will dismiss the

Glassboro Police Department and Pitman Police Department as not

proper parties because they are arms of the respective local

municipalities, we will allow Plaintiffs leave to amend the

Complaint to substitute the proper parties in interest.

Glassboro and Pitman Police Departments urge against

permitting such amendment, stating that based on the facts

alleged such amendment to correct the party would be futile.

(ECF 19). However, Plaintiffs have sought an opportunity to

amend the Complaint, as because it was filed in New Jersey state

court, which is a “‘notice’ pleading” jurisdiction, “plaintiff

[Carbonaro] did not include all the facts known to him or all

the allegations he believed to be true when the Complaint was

prepared and filed.” (ECF 16 at 11). Plaintiffs have previewed

the facts that they may include in an amended complaint in their

response, and have included additional specific allegations

related to Glassboro and Pitman Police Departments. While we

explicitly reserve judgment as to whether such additional

allegations would be sufficient to plead a claim, we will permit

amendment.

IV. CONCLUSION

For the reasons expressed above, Defendants’ motions to

dismiss the complaint will be granted. All claims against the

Gloucester County Prosecutor’s Office and SWAT Officers Kevin R.

Donahue and Michael R. Fitzgibbon in their official capacities

will be dismissed with prejudice. The claims against SWAT

Officers Kevin R. Donahue and Michael R. Fitzgibbon in their

individual capacities will be permitted to proceed (Counts III,

IV, V, VI, IX, and X) except for Mecca’s Loss of Consortium

claim which will be dismissed without prejudice (Count XI). All

claims against Defendant Rowan University Police will be

dismissed with prejudice. All claims against Defendants

Glassboro Police Department and Pitman Police Department will be

dismissed with prejudice.

An appropriate order will be entered.

Date: April 5, 2023 s/ Noel L. Hillman

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