WAGNER v. CITY OF NEWARK

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

MARILYN WAGNER, on behalf of B.D.,

a Minor,

Civil Action No. 23-731 (SDW)(MAH)

Plaintiff,

v. OPINION

CITY OF NEWARK, DARNELL HENRY, May 24, 2024

RODNEY SIMPKINS, in his individual

and professional capacities, JOHN

DOE OFFICER 1-5, JANE DOE

OFFICER 1-5, JOHN DOE SERGEANT

1-5, JANE DOE SERGEANT 1-5,

Defendants.

WIGENTON, District Judge.

Before this Court are Defendants City of Newark (the “City”), Detective Rod Simpkins,

and Chief of Police Darnell Henry’s (collectively, “Defendants”) Motions to Dismiss1 (D.E. 37–

39 (“Motions”)) Plaintiff Marilyn Wagner’s (“Plaintiff”) Complaint (D.E. 1) pursuant to Federal

Rule of Civil Procedure (“Rule”) 12(b)(6). Jurisdiction is proper pursuant to 28 U.S.C. §§ 1331

and 1367(a). Venue is proper pursuant to 28 U.S.C. § 1391. This opinion is issued without oral

argument pursuant to Rule 78. For the reasons stated herein, the Motions are GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

1 Plaintiff has also named Officers John Doe 1–5, Officers Jane Doe 1–5, John Doe Sergeants 1–5, and Jane Doe

Sergeants 1–5 of the Newark Police Department as defendants. Although courts may “allow claims based upon

‘fictitious’ defendants because they may be found and named later through the discovery process,” K.J. ex rel. Lowry

v. Div. of Youth & Fam. Servs., 363 F. Supp. 2d 728, 740 (D.N.J. 2005) (citing Alston v. Parker, 363 F.3d 229, 233

n.6 (3d Cir. 2004)), where Plaintiff has failed to plead facts sufficient to sustain a claim against any defendant, claims

against fictitious defendants will be dismissed as well.

A. Carl Dorsey’s Death on January 1, 20212

On January 1, 2021, just after midnight, Defendant Detective Simpkins of the Newark

Police Department (“NPD”) shot and killed Carl Dorsey III, a Black man in his 30s, when he and

unnamed Doe officers were responding to reports of gunshots at the intersection of Woodland

Avenue and South Eleventh Street in Newark, New Jersey. (D.E. 1 ¶¶ 6–15.) Surveillance video

footage from a nearby residence (“Video”) captured the incident.3 (Id. ¶ 10.)

Simpkins was in plain clothes and traveling in an unmarked police vehicle. (Id. ¶¶ 6–15.)

The car stopped in front of Dorsey as he was crossing the street. (Id.) At the same time, Simpkins

quickly exited from the rear passenger door, leaving the door open, and ran towards Dorsey. (Id.)

The two men collided and spun around, facing each other. (Id.) As Dorsey was backing away

from Simpkins, Simpkins fired his gun at Dorsey without warning and fatally shot him in the torso.

(Id.) Dorsey did not fit the description of any shooting suspects and did not carry or appear to be

carrying a weapon. (Id. ¶ 22.)

B. Procedural History

On or about August 31, 2022, Plaintiff filed the instant suit against Defendants in the

Superior Court of New Jersey, Law Division, Essex County, asserting constitutional claims under

42 U.S.C. §1983 and the New Jersey Civil Rights Act (“NJCRA”), and common law tort claims

under the New Jersey Tort Claims Act (“NJTCA”). (See D.E. 1-1.) Thereafter, Defendants

removed the case to this Court on February 8, 2023. (See D.E. 1.) Defendants moved to dismiss

2 The underlying facts upon which this action arose are identical to those in Fong v. City of Newark, No. 22-7243,

2023 WL 8947378 (D.N.J. Dec. 28, 2023), but the facts pleaded in Plaintiff’s Complaint are somewhat different.

3 This Court is guided in part by the Video of the incident. In cases where relevant events are captured on video,

courts should analyze the facts as they are depicted in the video over the parties’ characterizations of said events. Scott

v. Harris, 550 U.S. 372, 380–81 (2007).

the Complaint in September 2023, and the parties timely completed briefing.4 (See D.E. 37–39,

40–42, 44, 45, 47.)

II. LEGAL STANDARD

An adequate complaint must be “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual

allegations must be enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted); see also Phillips v. Cnty. of Allegheny,

515 F.3d 224, 232 (3d Cir. 2008) (“[I]n light of Twombly, Rule 8(a)(2) requires a ‘showing’ rather

than a blanket assertion of an entitlement to relief”).

In considering a motion to dismiss under Rule 12(b)(6), the Court must “accept all factual

allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine

whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”

Phillips, 515 F.3d at 231 (citation omitted). A court, however, need not accept as true allegations

that are “recitals of the elements of a cause of action, supported by mere conclusory statements.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.” (citation omitted)); see

also Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) (discussing the Iqbal standard).

Determining whether the allegations in a complaint are “plausible” is “a context-specific

task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal,

4 Defendants initially moved to dismiss the Complaint (D.E. 18, 19, 20) in May 2023, contending that Plaintiff

lacked standing to sue because she had not been appointed administratrix ad prosequendum. At that time, Plaintiff’s

application for administratrix ad prosequendum was pending in state court, and this Court terminated Defendants’

first Motions to Dismiss without prejudice so Defendants may move to dismiss the case after the resolution of

Plaintiff’s application.

556 U.S. at 679. If the “well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct,” the complaint should be dismissed for failing to “show[] that the

pleader is entitled to relief” as required by Rule 8(a)(2). Id. Moreover, “a court must consider

only the complaint, exhibits attached to the complaint, matters of public record, as well as

undisputedly authentic documents if the complainant’s claims are based upon these

documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citation omitted).

III. DISCUSSION

The Complaint contains ten counts5, asserting common law claims6 under the NJTCA and

constitutional claims under § 1983 and the NJCRA for violations of Dorsey’s rights under the

United States and New Jersey Constitutions.

To state a claim under § 1983, a plaintiff must allege facts showing that (1) he was deprived

of “rights, privileges, or immunities” afforded him under the United States Constitution or other

federal law, and (2) “the conduct complained of was committed by a person acting under color of

state law.” Schneyder v. Smith, 653 F.3d 313, 319 (3d Cir. 2011); see 42 U.S.C. § 1983.7 Section

1983 does not create any substantive rights; it merely provides a means to redress violations of

federal law committed by state actors. See Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979).

5 Plaintiff erred in labeling her claims, omitting a Count Three. For the sake of clarity, this Court refers to the counts

as they are labeled. (D.E. 1-1 at 3–8.)

6 Plaintiff’s common law claims are: assault (Count VI), battery (Count VI), gross negligence (Count VII), negligence

(Count VIII), intentional infliction of emotional distress (Count IX), and respondeat superior liability (Count X). (See

D.E. 1-1 at 2–12.)

7 Section 1983 provides in relevant part:

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, 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.

Civil claims for deprivation of or interference with a person’s rights guaranteed by the laws

and Constitutions of New Jersey and the United States can be asserted by way of the NJCRA. N.J.

Stat. Ann. § 10:6-1 et seq.; see Gormley v. Wood-El, 93 A.3d 344, 358 (N.J. 2014) (“Section 1983

applies only to deprivations of federal rights, whereas [the NJCRA] applies not only to federal

rights but also to substantive rights guaranteed by New Jersey’s Constitution and laws.”). Because

the NJCRA is interpreted analogously to § 1983, this Court’s § 1983 analysis controls Plaintiff’s

NJCRA claims as well.8 See Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011)

(noting that the NJCRA “was modeled after 42 U.S.C. § 1983”); Perez v. Zagami, LLC, 94 A.3d

869, 875 (N.J. 2014) (stating that the NJCRA is “a state law analogue to Section 1983”) (footnote

omitted).

The NJTCA provides for limited circumstances under which a plaintiff may bring a tort

claim against public entities and employees. See N.J. Stat. Ann. § 59:1-1 et seq.; Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (stating that sovereign immunity bars suits

against a State or its officials without its consent). Generally, “[e]xcept as otherwise provided by

[the NJTCA], a public entity is not liable for an injury, whether such injury arises out of an act or

omission of the public entity or a public employee or any other person.” N.J. Stat. Ann. § 59:2-

1(a). Under one such exception, “[a] public entity is liable for injury proximately caused by an act

or omission of a public employee within the scope of his employment . . . .” Id. § 59:2-2(a). A

8 The NJCRA provides that:

[a]ny person who has been deprived of any substantive due process or equal protection rights, privileges or

immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or

immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those

substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by

threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages

and for injunctive or other appropriate relief.

N.J. Stat. Ann. § 10:6-2(c).

public employee, however, is not liable for “acts in good faith in the execution or enforcement of

any law.” Id. § 59:3-3.

Defendants move to dismiss the Complaint under Rule 12(b)(6) on the grounds that (1)

Simpkins is entitled to qualified immunity; (2) the Complaint fails to show that Plaintiff has met

the notice requirement under the NJTCA; (3) the Complaint fails to sufficiently plead standing

under the New Jersey Survivor’s Act (“Survivor’s Act”), N.J. Stat. Ann. § 2A:15-3; and (4) that

the Complaint fails to state a claim against the City and Henry upon which relief can be granted.

This Court will address each of Plaintiff’s claims in turn.

A. Standing

Defendants argue that, as a threshold matter, the Complaint fails to sufficiently plead

standing as required by the Survivor’s Act. Although Plaintiff attached her appointment as

administratrix ad prosequendum (“AAP”) in her opposition briefs, this crucial information is not

part of the Complaint. Therefore, the Complaint is dismissed without prejudice, and Plaintiff may

amend her Complaint to reflect her status as AAP for Dorsey’s estate.

The Survivor’s Act “gives executors or administrators a right of action for tortious injury

or damage to the deceased or his property incurred prior to death.” Alexander v. Whitman, 114

F.3d 1392, 1399 (3d Cir. 1997) (quoting Alfone v. Sarno, 403 A.2d 9, 13 (N.J. Super. App. Div.

1979)). In 2022, the New Jersey Legislature amended the Survivor’s Act, which now provides

that if a plaintiff was qualified for, but did not yet obtain, AAP status at the time she filed suit, the

plaintiff may amend her Complaint to reflect her AAP status if she was later appointed as AAP

during the pendency of the case.9 See Chandler v. Kasper, No. A-2143-202022, WL 2163725, at

*1–3 (N.J. Super. Ct. App. Div. June 14, 2022).

9 The Survivor’s Act provides that:

Plaintiff was not AAP when she filed this action in state court, and she obtained her AAP

designation from the Superior Court of New Jersey in Essex County on September 29, 2023.

Because New Jersey state courts have allowed similarly situated plaintiffs to amend their

Complaints, see, e.g., Liu v. Affinity Care of NJ, No. A-0970-21, 2022 WL 17366271 (N.J. Super.

Ct. App. Div. Dec. 2, 2022), Plaintiff is permitted to amend her Complaint to cure this defect and

the Complaint is dismissed without prejudice.

B. Compliance with the NJTCA (Counts VI–IX)

Defendants argue that Plaintiff’s common law tort claims must be dismissed for non-

compliance with the NJTCA’s notice requirement. Although Plaintiff demonstrates in her

opposition briefs that she timely filed the notice of claim with the City, (D.E. 41, 42), Plaintiff did

not plead compliance in her Complaint.10 Therefore, Plaintiff’s tort claims will be dismissed

without prejudice.

The NJTCA requires a claimant to file a notice of claim with the entity being sued within

ninety days of the tort claim’s accrual. N.J. Stat. Ann. § 59:8-8; see Tripo v. Robert Wood Johnson

Med. Ctr., 845 F. Supp. 2d 621, 626 (D.N.J. 2012). The NJTCA provides a limited exception to

the ninety-day requirement if the claimant can show, “within one year after the accrual of his

claim,” both “extraordinary circumstances,” which prevented the timely filing of the notice, and

In the case of a plaintiff qualified for appointment as administrator who was not yet appointed administrator

at the time the plaintiff commenced an action under this section, the court may allow the plaintiff to be

designated administrator for the purposes of this section and to allow the plaintiff to amend pleadings nunc

pro tunc relating back to the plaintiff’s first filed pleading to reflect the designation.

N.J. Stat. Ann. § 2A:15-3(2).

10 A plaintiff must also meet other requirements under the NJTCA before a tort claim may be filed against a public

entity or employee. See N.J. Stat. Ann. § 59:8-1 et seq. This Court, however, need not address whether Plaintiff has

met the other provisions of the NJTCA to rule on the Motion, and Defendants have raised no other issues regarding

Plaintiff’s compliance with the other requirements of the NJTCA.

that the defendant is not “substantially prejudiced” by a later filing. N.J. Stat. Ann. § 59:8-9. A

plaintiff is “forever barred from recovering against a public entity or public employee” if she fails

to timely file a notice or if “[t]wo years have elapsed since the accrual of the claim.” Id. § 59:8-8.

Nothing in the Complaint indicates whether Plaintiff filed a timely notice or was granted

permission to file a late notice. Therefore, Plaintiff has not sufficiently pled this Court’s

jurisdiction over her tort claims. See Alvarado v. Johnson, No. 19-18574, 2020 WL 3819211, at

*2 (D.N.J. July 8, 2020) (dismissing without prejudice plaintiff’s tort claims because “the

pleadings in the complaint do not indicate that [plaintiff] filed any such pre-suit notices required

by the NJTCA”).

Plaintiff shows in her opposition briefs that a notice of claim form was sent to the City on

March 22, 2021 and that the City of Newark acknowledged receipt of the notice four days later.

(See D.E. 41-2.) The Third Circuit, however, has made clear that in deciding a motion to dismiss,

“a court must consider only the complaint” and “exhibits attached to the complaint.” Belichick,

605 F.3d at 230. Therefore, Plaintiff’s tort claims are dismissed without prejudice.

C. Gross Negligence (Counts VII)

Only Henry challenges the sufficiency of the Complaint’s allegations for the gross

negligence claim. Count VII alleges in a general manner that Defendants owed a duty to Dorsey

and breached that duty when Defendants shot Dorsey. “Group pleadings are insufficient to sustain

a claim as a matter of law” because they “fail to put defendants on notice of the claims against

them.” Miretskaya v. Rutgers State Univ. of N.J., No. 20-14856, 2022 WL 3020153, at *3 (D.N.J.

July 29, 2022). It is unclear on the face of the Complaint what action of Henry and/or the City

constitutes gross negligence as neither Defendant was physically present at the incident nor had

any direct involvement in it. The Complaint also fails to identify each defendant’s role in the

alleged wrong as required by Rule 8. Pushkin v. Nussbaum, No. 12-324, 2017 WL 1591863, at *7

(D.N.J. Apr. 28, 2017). Thus, Count VII will be dismissed without prejudice.

D. Qualified Immunity, Good Faith Immunity, and the Sudden Emergency Doctrine

1. Qualified immunity

Simpkins and Henry argue that the Complaint must be dismissed based on qualified

immunity. Qualified immunity does not shield Simpkins and Henry at this stage, however. On

this limited record, this Court cannot conclude that Simpkins’ and Henry’s actions were

objectively reasonable.

“The doctrine of qualified immunity shields government officials who perform

discretionary functions ‘from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.’” Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). To determine whether qualified immunity applies, courts must engage in

a two-part inquiry: First, do the allegations in the complaint show that defendant’s conduct

violated a constitutional right; second, was the constitutional right clearly established at the time

of the alleged violation. See Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by

Pearson v. Callahan, 555 U.S. 223, 236 (no longer requiring courts to determine Saucier prongs

in sequential order).

“[Q]ualified immunity will be upheld on a 12(b)(6) motion only when the immunity is

established on the face of the complaint.” Thomas v. Independence Twp., 463 F.3d 285, 291 (3d

Cir. 2006). “[T]he burden of pleading a qualified immunity defense rests with the defendant, not

the plaintiff.” Id. at 293. Although qualified immunity issues should be resolved at “the earliest

possible stage in litigation,” see id. at 291 (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991)), the

Third Circuit has cautioned that “it is generally unwise to venture into a qualified immunity

analysis at the pleading stage as it is necessary to develop the factual record in the vast majority

of cases.” Newland v. Reehorst, 328 F. App’x 788, 791 n.3 (3d Cir. 2009).

This Court will analyze Simpkins’ and Henry’s claim for qualified immunity in turn. 11

a. Detective Simpkins

At this stage, Simpkins is not entitled to qualified immunity as he has not shown his use of

deadly force on Dorsey was objectively reasonable.

Courts in the Third Circuit have applied the objective reasonableness standard to excessive

force and unreasonable seizure claims when determining whether qualified immunity should

apply. See, e.g., Santini, 795 F.3d at 417 (“In an excessive force case, we determine whether a

constitutional violation has occurred using the Fourth Amendment’s objective reasonableness

test.”) (citations omitted); Tofano v. Reidel, 61 F. Supp. 2d 289, 299 (D.N.J. 1999) (applying the

reasonableness standard to both excessive force and unreasonable seizure claims). The objective

reasonableness test is a fact-sensitive inquiry into “whether the totality of the circumstances

justifie[s] a particular sort of . . . seizure.” Tennessee v. Garner, 471 U.S. 1, 8–9 (1985).

Specifically, the Supreme Court has articulated three factors that must be considered in

determining whether the use of force was reasonable in a given case: (1) “the severity of the crime

at issue,” (2) “whether the suspect pose[d] an immediate threat to the safety of the officers or

others,” and (3) “whether [the suspect] actively resist[ed] arrest or attempt[ed] to evade arrest by

flight.” Graham, 490 U.S. at 396. The Third Circuit expanded this inquiry in Sharrar v. Felsing

to include (4) “the possibility that the persons subject to the police action are themselves violent

11 Qualified immunity under the NJCRA “tracks the federal standard.” Brown v. State, 165 A.3d. 735, 743 (N.J. 2017).

Thus, this Court’s qualified immunity analysis applies equally to Plaintiff’s NJCRA claims.

or dangerous,” (5) “the duration of the action,” (6) “whether the action takes place in the context

of effecting an arrest,” (7) “the possibility that the suspect may be armed,” and (8) “the number of

persons with whom the police officers must contend at one time.” 128 F.3d 810, 822 (3d Cir.

1997). Moreover, this Court must analyze the objective reasonableness of the officers’ behavior

“from the perspective of the officer[s] at the time of the incident and not with the benefit of

hindsight.” Santini, 795 F.3d at 417.

The Complaint’s allegations, taken as true as we must on a motion to dismiss, sufficiently

state a claim of excessive force and unreasonable seizure. “To state a claim for excessive force as

an unreasonable seizure under the Fourth Amendment, a plaintiff must show that a ‘seizure’

occurred and that it was unreasonable.” Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999)

(citation omitted). Dorsey was obviously seized when Simpkins shot him. See Garner, 471 U.S.

at 7 (“[T]here can be no question that apprehension by the use of deadly force is a seizure subject

to the reasonableness requirement of the Fourth Amendment.”). The question here is whether

Simpkins’ use of deadly force was reasonable.

Deadly force will only be considered reasonable when “it is necessary to prevent escape

and the officer has probable cause to believe that the suspect poses a significant threat of death or

serious physical injury to the officer or others.” Id. at 3. Probable cause means “facts and

circumstances sufficient to warrant a prudent man into believing that the [suspect] had committed

or was committing an offense.” Gerstein v. Pugh, 420 U.S. 103, 111 (1995) (citation and internal

quotation marks omitted).

Applying the Graham and Sharrar factors to the facts alleged in the Complaint, this Court

cannot conclude Simpkins’ use of deadly force was reasonable under the totality of the

circumstances. Cf. Lamont v. New Jersey, 637 F.3d 177, 184 (3d Cir. 2011) (holding that an

officer’s use of deadly force was reasonable when undisputed evidence shows that the suspect

refused to comply with the officer’s command that he show his hands and pulled his right hand

abruptly out of his waistband as though he were drawing a pistol). The factual allegations do not

support any plausible inference that Dorsey was committing a crime, armed and/or dangerous, or

resisted or attempted to evade arrest.12

Simpkins argues that he is entitled to qualified immunity for his reasonable belief that

Dorsey posed a threat of serious physical harm. He asserts that when Dorsey collided with him

and caused him to fall to the ground, he was in a vulnerable position confronting a potential

shooting suspect and had to make a split-second decision to fire his weapon. Citing two cases for

support, Simpkins unsuccessfully argues that his mistaken belief that Dorsey was armed and/or

engaged in a crime was reasonable. See Richardson v. City of Newark, 820 F. App’x 98, 100, 103

(3d Cir. 2020); Conde v. City of Atl. City, 293 F. Supp. 3d 493, 505 (D.N.J. 2017). These cases,

however, are distinguishable.

In Conde, the court found that the defendant officer who shot and killed a suspect during

pursuit had a reasonable belief that the suspect was armed because: the suspect was known to the

police and was described as armed on the police radio; several officers observed the suspect

possessing a handgun during the pursuit; and non-law enforcement eyewitness accounts

corroborated the defendant officer’s testimony that he shot the suspect after the suspect began to

turn toward him and reached into his waistband.

In Richardson, the Third Circuit found that the defendant officer’s use of deadly force was

reasonable based on the following non-contested facts: Richardson had objects in his jacket’s front

12 Simpkins concedes in his briefing that after he shot Dorsey, other officers “rushed past him toward the shootout on

or about Woodland Avenue” and apprehended an individual who pointed and discarded his gun at the scene on South

Eleventh Street. (D.E. 47-5 at 16.) The suspect later pled guilty to a firearm charge. (Id.)

pocket that could have formed a bulge when the defendant officer stopped him; Richardson fled

immediately after the defendant officer felt the object in his jacket, and when the officer fired the

shot that hit Richardson, he had just forced entry into an apartment building and attempted to

forcibly pry open a different door in the building.

The Third Circuit has made clear that “a good faith belief in the legality of conduct is not

sufficient[;] [s]uch belief must be objectively reasonable.” Here, there are no facts analogous to

those in Conde or Richardson that would suggest that Dorsey was armed, committing a crime,

and/or attempting to evade arrest at the time Simpkins encountered him to justify the use of deadly

force. Accordingly, Plaintiff has plausibly pled a violation of Dorsey’s right to be free from

excessive force and illegal seizure.

Furthermore, Simpkins does not sufficiently explain why he reasonably believed that

Dorsey was a dangerous or armed criminal suspect. Instead, he sets forth an alternative set of facts

disputed by Plaintiff, such as Dorsey “blind-sided,” “assaulted,” and “rapidly and suddenly turned

toward” him. (D.E. 37-5 at 24.) Under Third Circuit precedent, it is improper for courts to grant

qualified immunity at the pleading stage where there are material factual disputes relevant to

determining whether an officer is entitled to qualified immunity. See Monteiro v. City of Elizabeth,

436 F.3d 397, 405 (3d Cir. 2006) (“Although qualified immunity is a question of law determined

by the Court, when qualified immunity depends on disputed issues of fact, those issues must be

determined by the jury.”) (citing Johnson v. Jones, 515 U.S. 304, 313, (1995)). Because factual

disputes relevant to the determination of qualified immunity cannot be resolved on the present

record, Simpkins is not entitled to qualified immunity at this stage.

Simpkins also has not met his burden, under step two of the qualified immunity analysis,

in showing that it would not have been clear to a reasonable officer that his “conduct was unlawful

in the situation he confronted.” Santini, 795 F.3d at 417. “[N]umerous courts have held that the

right to be free from excessive force, as defined by the reasonableness test of Graham, is clearly

established.” Tofano, 61 F. Supp. 2d at 299 (citing Wilson v. Meeks, 52 F.3d 1547, 1552 (10th

Cir. 1995) (stating that “[t]his court has held the reasonableness standard is ‘clearly established’

for purposes of section 1983 actions”)).

Simpkins argues that there is no clearly established law precluding him from “using deadly

force against an individual who was running from an active shooting scene, who used force against

the detective to knock the detective down, and who was immediately spinning toward the detective

as the detective was falling to the ground.” (D.E. 37-5 at 33.) Again, Simpkins’ argument rests

on disputed facts. As discussed above, the facts surrounding the encounter are limited on this

record. Thus, this Court cannot find that qualified immunity exists at the pleading stage.

b. Henry

Henry contends that he is shielded by qualified immunity because “he was not responsible

for policymaking, implementation, training, or discipline of officers” and he was not present when

the incident took place. Henry’s argument, however, does not satisfy the two-pronged inquiry set

forth in Saucier, 533 U.S. at 201. Qualified immunity does not apply to Henry at this stage because

he has not met his burden of showing that “immunity is established on the face of the complaint.”

Thomas, 463 F.3d at 291.

2. Good Faith Immunity and Sudden Emergency Doctrine

Simpkins and Henry argue that the state law claims against them should be dismissed on

the grounds of “good faith” immunity under the NJTCA and the common law sudden emergency

doctrine. These arguments are unpersuasive.

The NJTCA grants immunity to a public employee “if he acts in good faith in the execution

or enforcement of any law.” Walker v. City of Newark, No. 19-16853, 2020 WL 3542502, at *13

(D.N.J. June 30, 2020), as amended (July 1, 2020). Whether Simpkins or Henry acted in good

faith cannot be determined at this time for the same reasons they are not entitled to qualified

immunity. Questions of good faith arising under the NJTCA are determined by the same

reasonableness standard courts apply to qualified immunity. See N.J. Stat. Ann. § 59:3-3; Mantz

v. Chain, 239 F. Supp. 2d 486, 507–08 (D.N.J. 2002) (citing Lear v. Twp. of Piscataway, 566 A.2d

557 (N.J. Super. Ct. App. Div. 1989)). Because factual disputes material to the determination of

good faith immunity exist, the Court cannot determine at the pleading stage whether the NJTCA

shields Simpkins and Henry from liability for Simpkins’ use of deadly force on Dorsey.

The sudden emergency doctrine applies when “a party [was] confronted by a sudden

emergency over which he had no control, without fault on his part.” Roberts v. Hooper, 438 A.2d

351, 353 (N.J. Super. Ct. App. Div. 1981). The doctrine “negates negligence if the jury finds that

the party chose one of alternative reasonably prudent courses of action, even though, by hindsight,

another course of action would have been safer.” Id. at 478–79. This doctrine is only applicable

to negligence claims under New Jersey law and is therefore applicable only to Plaintiff’s claims

of gross negligence and negligence.

The standard for determining whether a defendant should not be liable because of a sudden

emergency is reasonableness. See Harpell v. Pub. Serv. Coordinated Transp., 120 A.2d 43, 47

(N.J. 1956) (holding that even when one “must make a speedy decision” in the face of an

emergency, the “the conduct required is still that which is reasonable under the circumstances”).

Therefore, even assuming, without deciding, that Simpkins’ encounter with Dorsey was a sudden

event, Simpkins may still be liable for negligence if his conduct was unreasonable. As stated

previously, there remain material factual disputes surrounding the encounter to determine whether

Simpkins acted reasonably. Therefore, Simpkins is not entitled to dismissal of Plaintiff’s

negligence claim under the sudden emergency doctrine at this time.

E. Municipal Liability for Failure to Train and Supervise (Count II)

The City and Henry move to dismiss Plaintiff’s municipal liability claims for failure to

train and supervise NPD officers under Monell v. Dep’t of Soc. Servs. of City of New York, 436

U.S. 658 (1978). Because the Complaint fails to demonstrate that a policy or custom caused the

violations of Dorsey’s constitutional rights or that the failure to train and supervise NPD officers

amounted to deliberate indifference, Plaintiff’s Monell claims are dismissed without prejudice.

A § 1983 claim against a municipality may proceed in two ways. Est. of Roman v. City of

Newark, 914 F.3d 789, 798–99 (3d Cir. 2019). First, a municipality may be liable under § 1983 if

a plaintiff identifies a policy or custom that was the “proximate cause” of his injuries by

“demonstrating an ‘affirmative link’ between the policy or custom and the particular constitutional

violation he alleges.” Id. at 798. A policy exists “when a decisionmaker possessing final authority

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

edict.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (internal quotation marks, citation,

and alteration 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. (citation omitted).

Second, a municipal liability claim may also be premised on a municipality’s failure to

properly train, supervise, or discipline its employees. See Reitz v. Cnty. of Bucks, 125 F.3d 139,

145 (3d Cir. 1997) (“[I]n the absence of an unconstitutional policy, a municipality’s failure to

properly train its employees and officers can create an actionable violation . . . under § 1983.”).

To plead such a claim involving police misconduct, a plaintiff must demonstrate that a city’s failure

“amounts to deliberate indifference to the rights of persons with whom the police come into

contact.” Roman, 914 F.3d at 798 (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)).

A plaintiff sufficiently pleads deliberate indifference by showing that “(1) municipal policymakers

know that employees will confront a particular situation, (2) the situation involves a difficult

choice or a history of employees mishandling, and (3) the wrong choice by an employee will

frequently cause deprivation of constitutional rights.” Id. (quoting Doe v. Luzerne Cnty., 660 F.3d

169, 180 (3d Cir. 2011) (alterations omitted)). In addition, “[t]he failure to train must have a causal

nexus with [the plaintiff’s] injury.” Thomas v. Cumberland Cnty., 749 F.3d 217, 226 (3d Cir.

2014) (citation and internal quotation marks omitted).

Similarly, “supervisors can be liable if they established and maintained a policy, practice

or custom which directly caused the constitutional harm[.]” Parkell v. Danberg, 833 F.3d 313,

330 (3d Cir. 2016) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010)

(quotation and alteration marks omitted)). Liability can also attach against supervisors “if they

participated in violating plaintiff’s rights, directed others to violate them, or, as the persons in

charge, had knowledge of and acquiesced in their subordinates’ violations.” Id.

Here, Plaintiff has not pled a municipal policy or custom of engaging in the specific kinds

of constitutional violations alleged in the Complaint. The Complaint does not allege that a

municipal decisionmaker with “final authority” to make policy issued an “official proclamation,

policy, or edict” about the use of excessive force or the practice of search or arrest without probable

cause. Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). In addition, the

Complaint lacks any factual allegations to support a plausible inference that a municipal policy

can be affirmatively linked to Simpkins’ use of excessive force on Dorsey.

Similarly, Plaintiff fails to adequately allege a custom, so “well-settled and permanent as

virtually to constitute law,” of permitting excessive force, illegal search and seizure, or other

constitutional violations that proximately caused Dorsey’s death. Bielevicz, 915 F.2d at 850. The

Complaint also fails to allege that Henry or the City had any personal or direct involvement in the

violations of Dorsey’s rights.

Plaintiff argues that the Complaint has sufficiently pled an unconstitutional custom and

deliberate indifference to the lack of adequate training for NPD officers. Plaintiff relies on several

allegations in the Complaint, including a 2009 civil lawsuit against Simpkins for allegedly pointing

his gun at a football coach and two teenagers during a traffic stop (“2009 lawsuit”), a Consent

Decree the City entered into with the Justice Department in 2016 (“Consent Decree”) and a

subsequent monitoring plan, to show that the City and Henry had notice of an unconstitutional

custom and that they were indifferent to inadequate training and supervision of NPD officers.

Plaintiff also cites Roman as “helpful guidance” as to the sufficiency of her claims. These

arguments are unpersuasive, and Roman is distinguishable from this case.

In Roman, the Third Circuit held that plaintiff Roman had sufficiently pled a Monell

failure-to-train claim based on a custom of warrantless searches against the City of Newark. See

Roman, 914 F.3d at 798–99. On the issue of unconstitutional custom, the Third Circuit found that

the documents cited by Roman, such as the Consent Decree, covered the same types of

unconstitutional conduct as he alleged. Id. at 799. The Third Circuit also found that while the

Consent Decree was not in place during Roman’s search and arrest in May 2014, the investigation

that resulted in the Consent Decree and federal supervision began in May 2011 and ended in July

2014, so the Court could “fairly infer that the problems that led to [the Consent Decree] were

occurring during the time of [Roman’s] allegations and for some time before that.” Id.

The Third Circuit also found that Newark’s failure to train and supervise its officers

amounted to deliberate indifference. See id. The Court noted that the head of the police union

was quoted in the newspaper stating that he was last trained in 1995 when he first joined the force.

Id. at 799–800. The Consent Decree also indicated that NPD officers, in general, were not trained

on “the requirements of [the] Fourth Amendment and related law.” Id. at 800. These allegations,

the Third Circuit concluded, were “enough to prove municipal liability because the City [knew] to

a moral certainty that its officers would need to conduct searches” but had failed to provide training

for constitutional policing under the Fourth Amendment since 1995. Id. (internal quotation marks

and citation omitted) (alteration in original).

Here, the Complaint has not pled sufficient allegations to raise a plausible custom claim to

survive a motion to dismiss. First, Dorsey’s claim arose in January 2021, almost seven years after

the federal investigation into the NPD ended and almost five years after the City entered into the

Consent Decree. There is no similar temporal proximity between the alleged unconstitutional

police conduct and the Consent Decree for this Court to “fairly infer” that the problems covered

in the Consent Decree had continued and proximately caused the violations of Dorsey’s rights.

Second, the Complaint makes no reference to any civilian complaint about the same constitutional

violations alleged by Plaintiff other than a reference to the 2009 lawsuit. These allegations alone

do not plausibly show a custom of unconstitutional policing.

As for the failure-to-train-and-supervise claim, the Complaint does not adequately allege

the manner in which the training or supervision of police officers was inadequate. Instead, the

Complaint alleges that the 2016 Consent Decree found that NPD’s inadequate supervision,

deficient training, and lack of accountability surrounding the use of force by its officers contributed

to a pattern of Constitutional violations and that Defendants knew of these policies, customs, and

practices and permitted their continuance. These general allegations do not support a plausible

inference that the City or Henry knew to a moral certainty that NPD officers have been

inadequately trained in policing under the Fourth Amendment and that a pattern of unconstitutional

police conduct has developed as a result. See Adams v. City of Atl. City, 294 F. Supp. 3d 283, 304

(D.N.J. 2018) (“‘[A] pattern of similar constitutional violations by untrained employees’ is

necessary ‘to demonstrate deliberate indifference for purposes of failure to train’”) (quoting

Cumberland Cnty., 749 F.3d 217, 223 (3d Cir. 2014)).

Accordingly, Plaintiff’s Monell claim for failure to train and supervise will be dismissed

without prejudice.

F. New Jersey Constitutional Claims

In addition to § 1983 claims, Plaintiff alleges that Defendants violated Dorsey’s right to

equal protection and to be free from unreasonable seizure under the New Jersey Constitution. See

N.J. Const. art. I, § 1; id. art. I, § 7. Henry and the City seek to dismiss these claims for failure to

state a claim. This Court will address each claim in turn.

1. Article I, Section 1 (Counts IV and XI)

While both Counts IV and XI allege violations of Article 1, Section 1 of the New Jersey

Constitution, Count IV is a standalone constitutional claim, whereas Count XI brings an identical

claim under the NJCRA. Because “civil claims for violations of the New Jersey Constitution

can only be asserted by way of the [NJCRA],” Martin v. Unknown U.S. Marshals, 965 F. Supp.

2d 502, 548 (D.N.J. 2013), Count IV will be stricken and dismissed with prejudice. The

remaining Article I, Section 1 claim in Count XI will be dismissed without prejudice for failure

to state a claim.

New Jersey courts have interpreted Article 1, Section 1 as conferring a right to equal

protection analogous to that available under the Fourteenth Amendment.13 See Secure Heritage,

Inc. v. City of Cape May, 825 A.2d 534, 545 (N.J. App. Div. 2003) (citing Doe v. Poritz, 662

A.2d 367, 414 (N.J. 1995)). Courts in this district have found that “[t]he standard for an equal

protection claim under the U.S. Constitution is analogous to the standard for an equal protection

claim under the New Jersey Constitution.” See Sharifi v. Twp. of E. Windsor, No. 21-18097,

2023 WL 2182003, at *9 (D.N.J. Feb. 23, 2023) (quotations and citation omitted). Accordingly,

this Court will analyze Plaintiff’s Article I, Section 1 claim under the standard of a Fourteenth

Amendment equal protection claim.

To state a § 1983 equal protection claim, a plaintiff must allege that (1) she is a member of

a protected class and (2) she received different treatment than that received by other similarly

situated individuals. Keenan v. City of Philadelphia, 983 F.2d 459, 465 (3d Cir. 1992). In addition,

race is one of the constitutionally protected classes. See City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 440–41 (1985) (discussing protected classes). “Persons are similarly situated for

purposes of an equal protection claim when they are alike ‘in all relevant aspects.’” Startzell v.

City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008) (quoting Nordlinger v. Hahn, 505 U.S. 1,

10 (1992). Further, a plaintiff must allege “intentional discrimination.” Hassan v. City of New

York, 804 F.3d 277, 294 (3d Cir. 2015), as amended (Feb. 2, 2016).

While Plaintiff has met the first element, she has not sufficiently alleged that Defendants

treated similarly situated persons outside of Dorsey’s protected class differently. “[A]n allegation

13 Article 1, Section 1 of the New Jersey Constitution provides: “All persons are by nature free and independent,

and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of

acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” N.J. Const. art.

I, § 1.

of an equal protection violation still must contain a claim that a plaintiff has been treated differently

from others who are similarly situated.” Phillips, 515 F.3d at 244. The Complaint fails to do so.

Moreover, Plaintiff has not sufficiently set forth discriminatory intent on the part of any of the

Defendants. The Third Circuit has declared that discriminatory intent requires that the decision-

maker took “a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its

adverse effects upon an identifiable group.” Antonelli v. New Jersey, 419 F.3d 267, 274 (3d Cir.

2005) (emphasis added) (quoting Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279, (1979)).

The Complaint fails to sufficiently allege that Defendants subjected Dorsey to disparate treatment

because of his race.

Accordingly, Plaintiff’s equal protection claim is dismissed without prejudice.

2. Article I, Section 7 (Count V)

Only the City moves to dismiss Plaintiff’s constitutional claim under Article I, Section 7

of the New Jersey Constitution, arguing that Plaintiff cannot bring a standalone Article I, Section

7 claim. The City’s argument has merit because, as previously noted, “civil claims for violations

of the New Jersey Constitution can only be asserted by way of the New Jersey Civil Rights Act.”

Martin, 965 F. Supp. 2d at 548. Accordingly, Count V is dismissed without prejudice for

asserting a standalone New Jersey constitutional claim.

G. Respondeat Superior Liability (Count X)

Count X asserts that the City and Henry are liable for Simpkins’ misconduct under the

doctrine of respondeat superior. Count X will be dismissed without prejudice.

“[A] municipality cannot be held liable under § 1983 on a respondeat superior theory.

Monell, 436 U.S. at 691 (“[A] municipality cannot be held liable solely because it employs a

tortfeasor.”) Therefore, Plaintiff cannot attach respondeat superior liability to the City and Henry

for her federal and state constitutional claims.

Turning to Plaintiff’s common law tort claims, “there can be no vicarious liability by a

public entity for intentional torts committed by its employees; that is, with respect to such

intentional torts, the theory of respondeat superior does not apply.” Holmes v. New Jersey, No.

17-2160, 2017 WL 5951579, at *2 (quoting Hoag v. Brown, 935 A.2d 1218, 1230 (N.J. Super, Ct.

App. Div. 2007)). As to Plaintiff’s negligence-based claims, respondeat superior liability cannot

attach because all of the tort claims will be dismissed for noncompliance with the NJTCA.

Therefore, Count X will be dismissed without prejudice.

IV. CONCLUSION

For the reasons stated above, Defendants’ Motions are GRANTED. Except for Count IV,

which is dismissed with prejudice, the Complaint is dismissed without prejudice. Plaintiff shall

have thirty (30) days to file an amended complaint. An appropriate order follows.

___/s/ Susan D. Wigenton_____

SUSAN D. WIGENTON, U.S.D.J.

Orig: Clerk

cc: Michael A. Hammer, U.S.M.J.

Parties