# CARBONARO v. GLASSBORO POLICE DEPARTMENT

> District Court, D. New Jersey · April 5, 2023

URL: https://www.frixlaw.com/law-library/cases/10275060

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** April 5, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10275060. Public record. Not legal advice.