# LLOYD v. OCEAN TOWNSHIP COUNSEL

> District Court, D. New Jersey · August 31, 2019

URL: https://www.frixlaw.com/law-library/cases/10654716

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** August 31, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10654716

## How later opinions describe it (automated extraction)

- finding that claims for negligent and intentional infliction of emotional distress accrued on the date of arrest
- rejecting petitioner’s argument that the statute of limitations should be equitably tolled because his counsel gave him the wrong statute of limitations for his habeas corpus petition
- holding that plaintiff's “pro se status and depression do not justify equitable tolling”

## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

THOMASINA L. LLOYD,
Plainuff, Civil Action No. 19-600 (MAS) (DEA)
MEMORANDUM OPINION
OCEAN TOWNSHIP COUNCIL, et al.,
Defendants.
SS
SHIPP, District Judge
This matter comes before the Court upon two motions to dismiss pro se Plaintiff
Thomasina Lloyd’s (“Plaintiff’) Complaint (Notice of Removal, Ex. A (“Complaint”), ECF
No. 1-1): (1) Defendant Ocean Township Board of Education's (the “Board’’) Motion to Dismiss
(ECF No. 3) and (2) Ocean Township Police Department and the Ocean Township Municipal
Prosecutor’s (collectively, “Law Enforcement Defendants”) Motion to Dismiss.'! (ECF No. □□□
Plaintiff opposed both motions in a single opposition brief. (ECF No. 9.) Law Enforcement
Defendants filed a letter memorandum in reply. (ECF No. 21.) The Board filed a separate letter
memorandum in reply. (ECF No. 22.)

' Law Enforcement Defendants note in their Motion to Dismiss that the correct name for Ocean
Township Counsel is Ocean Township Municipal Prosecutor. (See ECF No. 3.)
* The Court refers to Law Enforcement Defendants and the Board collectively as “Defendants.”

The Court has carefully considered the parties’ submissions and decides the matter without
oral argument pursuant to Local Civil Rule 78.1. For the reasons set forth herein, the Court grants
Defendants’ Motions to Dismiss. The Court also grants Plaintiff leave to file an amended
complaint.
I. Background’
On March 6, 2014, Plaintiff met with members of the Board to discuss “egregious
violations of the Federal education law” related to her son. (Compl. at 1-2, ECF No. 1-1.)* After
Plaintiff left the school, a police officer stopped her, informed her of an outstanding traffic warrant,
and arrested her. (/d. at 2.)
The police “ultimately charged [Plaintiff] with robbery in the course of an aggravated
assault for allegedly grabbing the arm of [] Kachmar-Will’ and forcefully removing her son’s
school records... .” (/d.) Plaintiff alleges that the police held her in custody for more than
twenty-four hours. (/d.) Additionally, Plaintiff alleges that Detective Michael Melody “lied in
[the] police report and said Ms. Lloyd admitted to something she did not do.” (/d.)
On March 13, 2014, the Ocean Township Police Department issued a press release
regarding the arrest.° (/d.) On May 31, 2014, the police converted Plaintiff’s robbery charge to a

ruling on a motion to dismiss, the Court accepts as true all well-pled factual allegations in the
Complaint. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
* Because the Complaint does not consistently use numbered paragraphs as mandated by Federal
Rule of Civil Procedure 10(b), the Court refers to the pagination included at the bottom of the
Complaint.
> Lorretta Kachmar-Will, Special Projects Supervisor for Ocean Township, attended the meeting
with Plaintiff. (4d.}
© The Court has not been presented with any record that documents the press release. As such, the
Court relies on Plaintiff's allegations about the press release found in the Complaint.

single count of harassment. (/d.) On February 23, 2016, Ocean Township Municipal Court
convicted Plaintiff of harassment. (/d.) Plaintiff appealed the conviction, and on September 2,
2016, the Monmouth County Superior Court acquitted her. (/d.)
On December 2, 2016, Plaintiff served all Defendants with a “Notice of Tort Claim.” (/d.)
On March 27, 2019, Plaintiff initiated this action in the Superior Court of New Jersey, Law
Division, Monmouth County. (Notice of Removal, ECF No. |.) Construing the Complaint
liberally, Plaintiff appears to assert claims for false arrest, malicious prosecution, and fabrication
of evidence pursuant to 42 U.S.C. § 1983 (“Section 1983”). (Compl. at 4-15.) Plaintiff brings the
following state law claims: (1) malicious prosecution; (2) false arrest; (3) false imprisonment;
(4) defamation; (5) intentional infliction of emotional distress; and (6) negligent infliction of
emotional distress. (/d.) Plaintiff may also be attempting to bring claims for conspiracy and racial
discrimination. (/d. at 13, 15.) On October 30, 2018, Plaintiff initiated the instant action. (See
generally Notice of Removal.) On January 17, 2019, this matter was removed this case pursuant
to 28 U.S.C. § 1441 (a). (/d.)
IL. Legal Standard
A district court conducts a three-part analysis when considering a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6).’ See Malleus v. George, 641 F.3d 560, 563
(3d Cir, 2011). “First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a
claim.’” /d. (quoting Asicroft v. [gbal, 556 U.S. 662, 675 (2009)). Second, the court must
“review[ ] the complaint to strike conclusory allegations[.]” /d. The court must accept as true all
of the plaintiff's well-pleaded factual allegations and “construe the complaint in the light most
favorable to the plaintiffL.J”’ Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)

7 All references to a Rule or Rules refer to the Federal Rules of Civil Procedure.

(citation omitted). In doing so, however, the court is free to ignore legal conclusions or factually
unsupported accusations that merely state “the-defendant-unlawfully-harmed-me.” fgbal, 556
U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Finally, the court must
determine whether “the facts alleged in the complaint are sufficient to show that the plaintiff has
a ‘plausible claim for relief."” Fowler, 578 F.3d at 211 (quoting Iqbal, 556 U.S. at 679). A facially
plausible claim “allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” /d. at 210 (quoting /gbal, 556 U.S. at 678).
Federal Rule of Civil Procedure Rule 8(a)(2) “requires only ‘a short and plain statement of
the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice
of what the ... claim is and the grounds upon which it rests... .’” Tivombly, 550 U.S. at 555
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “[A] pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers. .. .”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). Nonetheless, “a litigant is not
absolved from complying with Twombly and the federal pleading requirements merely because
[she] proceeds pro se.” Thakar v. Tan, 372 F. App’x 325, 328 (3d Cir, 2010) (citation omitted).
Thus, “pro se litigants still must allege sufficient facts in their complaints to support a
claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted).
Discussion
Defendants first argue Plaintiff's claims are both untimely and deficient. (See generally
Board’s Moving Br. 6-30; Law Enforcement Defs.’ Moving Br. 13-29.) In response, Plaintiff
appears to argue equitable tolling applies to her claims. (See Pl.’s Opp’n Br.5, ECF No.
9 (“Plaintiff is requesting the [CJourt waive the statutes of limitation due to years of illness,
homelessness, financial hardship, bankruptcy[,] . . . caring for her child with disabilities . . . [a]s

well as being represented by two bad attorneys who neglected her case....”).) In reply,
Defendants argue Plaintiff has failed to allege sufficient facts to demonstrate she was (1) pursuing
her claim diligently; and (2) extraordinary circumstances were the cause for Plaintiff's delay in
filing. (See, e.g., Law Enforcement Defs.’ Reply Letter 3, ECF No. 21.)
A. Timeliness
l. Timeliness of the Complaint
A plaintiff may pursue a cause of action under Section 1983 for certain violations of his or
her 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....
For Section 1983 actions, courts look to the applicable state law to determine the limitations
period. See Wallace vy. Kato, 549 U.S. 384, 387 (2007). A Section 1983 complaint is
“characterized as a personal injury claim and thus is governed by the applicable state’s statute of
limitations for personal-injury claims.” Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir.
2010) (citing Cito v. Bridgewater Twp. Police Dep't, 892 F.2d 23, 25 (3d Cir. 1989)).
In New Jersey, the statute of limitations for personal injury actions is two years.
N.J.S.A. 2A:14-2. Therefore, Plaintiff's Section 1983 claims of false arrest and imprisonment,
malicious prosecution, and fabrication of evidence are subject to this two-year statute of limitations
period. See Dique, 603 F.3d at 185.
While it is true that the length of the statute of limitations for Section 1983 claims is
governed by state law, “[f]ederal law governs a cause of action’s accrual date.” Kach v. Hose, 589

F.3d 626, 634 (3d Cir. 2009) (citing Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir.
1991). A Section 1983 cause of action accrues, and the statute of limitations begins to run, “when
the plaintiff knew or should have known of the injury upon which [her] action is based.” /d.
(quoting Sameric Corp. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998)). On October 30, 2018,
Plaintiff initiated the instant action. Therefore, any Section 1983 claim asserted in her Complaint
would be time-barred if it accrued prior to October 30, 2016.
The statute of limitations for a Section 1983 claim of false arrest and false imprisonment
accrues “at the time the claimant becomes detained pursuant to legal process.” Wallace, 549 U.S.
at 397. In this case, the statute of limitations commenced on March 6, 2014, the date Plaintiff was
arrested. (Compl. at 1.) Plaintiffs claims for false imprisonment and false arrest, therefore, are
time-barred.®
“[A Section 1983] cause of action for malicious prosecution does not accrue until the
criminal proceedings have terminated in the plaintiff's favor... .” Heck v. Humphrey, 512 U.S.
477, 489 (1994). This accrual date is the same for a cause of action based on fabrication of
evidence. See Floyd v. Att'y Gen. of Pa., 722 F. App’x 112, 114 Gd Cir. 2018). In this case,
Plaintiff's Section 1983 claims for malicious prosecution and fabrication of evidence accrued on
September 6, 2016—the date of Plaintiff's acquittal in Monmouth County Superior Court.
(Compl. at 2.) Plaintiff's claim, therefore, expired on September 6, 2018 and is thus time-barred.
Turning to the state law claims, the accrual date for false arrest and false imprisonment
under New Jersey law is similar to Section 1983 claims and the claims accrue when the claimant

® State law claims for false arrest and false imprisonment under New Jersey law, as opposed to
federal Jaw claims, also accrue on the date of arrest. Bayer v. Twp. of Union, 997 A.2d 1118, 1129
(N.J. Super. Ct. App. Div. 2010).

is detained. See Bayer, 997 A.2d atl1130. These claims are, therefore, time-barred because
Plaintiff was arrested on March 6, 2014. (Compl. at |.)
The statute of limitations for libel and slander bars a cause of action after one year of the
act in question.” N.J.S.A. § 2A:14-3. New Jersey law mandates that the statute of limitations for
a defamation claim begins to run from the date of publication. NuWave Inv. Corp. v. Hyman Beck
& Co., 75 A.3d 1241, 1259 (N.J. Super. Ct. App. Div. 2013); Farzan v. United Parcel Serv., Inc.,
No. 10-1417, 2011 WL 3510860, at *11 (D.N.J. Aug. 8, 2011). Plaintiff's cause of action for
defamation began to run on March 13, 2014, because that is when the Ocean Township Police
Department issued a press release regarding her arrest and the conduct upon which Plaintiff bases
her defamation claims. (See Compl. at 2.) These claims, therefore, are time-barred.
“[C]laims asserted for . . . infliction of emotional distress are governed by the two-year
statute of limitations contained in N.J.S.A. 2A:14-2....” Fraser v. Bovino, 721 A,2d 20, 25 (N.J.
Super. Ct. App. Div. 1998). “Ordinarily, a cause of action accrues when the plaintiff knows of
his or her injuries and of facts sufficient to attribute those injuries to the fault of another.” Viviano
v. CBS, Inc., 503 A.2d 296, 300 (N.J. 1986) (citing Lynch v. Rubacky, 424 A.2d 1169, 1173-74
(N.J. 1981)). If Plaintiffis alleging negligent and intentional infliction of emotional distress arising
from an arrest, then those claims began to run on the date she was arrested. See Campanello v.
Port Auth. of N.Y. & Nf, 590 F. Supp. 2d 694, 699-700 (D.N.J. 2008) (finding that claims for
negligent and intentional infliction of emotional distress accrued on the date of arrest).
Plaintiff ties “the actions of lying[,]” false arrest and imprisonment, and the Police
Department’s press release to her claims of negligent and intentional infliction of emotional
distress. (Compl. at 14.) Even if Plaintiff had tied the negligent or intentional infliction of

Libel and slander are forms of defamation. See W.J.A. v. D.A., 43 A.3d 1148, 1154 (N.J. 2012),

emotional distress exclusively to the press release—the last chronological event Plaintiff ties to
her emotional distress—Plaintiff’s claims for negligent and intentional infliction of emotional
distress are still time-barred because that event happened on March 13, 2014 and Plaintiff did not
file her Complaint until October 30, 2018. (Compl. at 2.)
2. Timeliness of Plaintiff's Notice of Tort Claim
Regarding the state law claims described above, Defendants argue Plaintiff also failed to
serve Defendants with a timely notice of tort claim. (Law Enforcement Defs.’ Moving Br. 14.)
The New Jersey Tort Claims Act (“NJTCA”) “‘establishes the procedures by which claims [against
public entities and public employees] may be brought,’ including a mandatory pre-suit notification
of the claim.” Rogers v. Cape May Cty. Office of Pub. Def., 31 A.3d 934, 937 (N.J. 2011) (quoting
Beauchamp v. Amedio, 751 A.2d 1047 (N.J. 2000)). “The claimant shall be forever barred from
recovering against a public entity or public employee if... [she] failed to file [her] claim with the
public entity within 90 days of accrual of [her] claim.” N.JS.A. 59:8-8 (emphasis added).
Moreover, New Jersey law provides,
Application to the court for permission to file a late notice of claim
shall be made upon motion supported by affidavits based upon
personal knowledge of the affiant showing sufficient reasons
constituting extraordinary circumstances for hf{er] failure to file
notice of claim within the period of time prescribed by section
59:8-8 of this act or to file a motion seeking leave to file a late notice
of claim within a reasonable time thereafter; provided that in no
event may any suit against a public entity or a public employee
arising under this act be filed later than two years from the time of
the accrual of the claim.
N.J.S.A. 59:8-9 (emphasis added).
To determine whether a Notice of Tort Claim is timely under the NJTCA, or whether the
deadline for a late notice of claim has passed, the accrual date for the cause of action must be

ascertained. (/d.) Based upon the facts presented in the instant complaint,!° Plaintiff's state law
claims for false arrest and imprisonment accrued on March 6, 2014, when the police arrested her.
(Compl. at 1.) Plaintiff's defamation claim accrued on March 13, 2014, when the Police
Department filed its press release. (/d. at 2.) Plaintiffs malicious prosecution claim accrued on
September 2, 2016, when the New Jersey Superior Court acquitted Plaintiff of her conviction.
(/d.). Plaintiffs negligent and intentional infliction claims accrued on March 6, 2016, the date of
her arrest. (/d. at 1.)
Plaintiff did not serve Defendants with a Notice of Tort claim until December 2, 2016.
(/d.) That is more than two years past the initial date of accrual for Plaintiff's false arrest and
defamation claims. The time frame to file a Notice of Tort Claim regarding Plaintiff's malicious
prosecution claim has also expired because Plaintiff served public entities ninety-one days after
that claim accrued. Since Plaintiff did not obtain leave to file a late Notice of Tort Claim “within
one year of accrual(,]” all state law claims are time-barred by the NJTCA. See N.J.S.A. 59:8-9.
Even if Plaintiff did file a late Notice of Tort Claim within one year of accrual, and the Court did
find sufficiently extraordinary circumstances to warrant such an extension, all state law claims are
still time-barred because in “no event may any suit against a public entity or a public employee
arising under this act be filed later than two years from the time of the accrual of the claim.”
N.J.S.A. 59:8-9,

'© Because the Court grants Plaintiff leave to file an Amended Complaint, the Court emphasizes
that these accrual dates are limited solely to the dates presented in Plaintiff's Complaint, and that
these accrual dates may change after Plaintiff has had the opportunity to file an Amended
Complaint,

3, Equitable Tolling!!
“Under equitable tolling, plaintiffs may sue after the statutory time period for filing a
complaint has expired if they have been prevented from filing in a timely manner due to
sufficiently inequitable circumstances.” Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d 236,
240 (3d Cir. 1999). “The law is clear that courts must be sparing in their use of equitable tolling.”
Id. at 239.
“A party must plausibly plead allegations to support equitable tolling and ‘a district court
may dismiss an untimely cause of action if it is plain on the face of the complaint that the
limitations period cannot be tolled.’” Margolis v. Warner Chilcott (US) LEC, No. 17-4550, 2018
WL 2455925, at *6 (D.N.J. May 31, 2018) (quoting Menichino v. Citibank, N.A., No. 12-0058,
2013 WL 3802451, at *6 (W.D. Pa. July 19, 2013)). Plaintiffs may not amend their
pleadings through arguments found in their Opposition Brief in order to support application of
equitable tolling. Margolis, 2018 WL 2455925, at *7 (D.N.J. May 31, 2018) (citing Pa. ex rel.
Zinunerman v. Pepsico, 836 F.2d 173 (3d Cir. 1988)); see also Evans v. Gloucester Twp., 124 F.
Supp. 3d 340, 343 (D.N.J. 2015) (“The Court rejects [p]laintiff's attempt to invoke the doctrine of
equitable tolling under New Jersey and federal law by relying on facts not pleaded in the Amended
Complaint.”).
While not an exhaustive list, the Third Circuit has identified three principal situations
where equitable tolling may be appropriate: “(1) where the defendant has actively misled the
plaintiff respecting the plaintiff’s cause of action; (2) where the plaintiff in some extraordinary

'! Equitable tolling is discussed in relation to the federal claims. Regarding the state law claims,
the Late Notice of Tort Claim functions as a mechanism for equitable tolling. As stated above,
however, these claims cannot go forward after two years. As such, Plaintiff may only apply the
equitable tolling doctrine to her federal claims.

10

way has been prevented from asserting her rights; or (3) where the plaintiff has timely asserted her
rights mistakenly in the wrong forum.” Oshiver v. Levin, Fishbein, Sedran & Berman, 111 F.3d
1380, 1387 (3d Cir. 1994), An extraordinary circumstance is seen as sufficient to toll a statute of
limitations when it “prevents a plaintiff from asserting a right despite the exercise of reasonable
diligence.” Hanani v. State of N.J. Dep't of Envtl. Prot., 205 F. App’x 71, 77 (3d Cir. 2006) (citing
Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003)).
In her Opposition Brief, Plaintiff appears to argue that extraordinary circumstances
impeded her from filing the Complaint on time and asks the Court to apply equitable tolling. (See
Pl.’s Opp’n Br. 5.) Specifically, Plaintiff states she suffered “years of illness, homelessness,
financial hardship, bankruptcy[,] and caring for her child with disabilities... . [a]s well as being
represented by two bad attorneys who neglected her case.” (/d.) Preliminarily, the Court notes
that Plaintiff's unsupported assertions are insufficient to invoke equitable tolling.
The Court also notes that the specific reasons Plaintiff proffers in her Opposition Brief are
insufficient for the Court to apply equitable tolling. First, Plaintiff appears to claim that counsel
advised her of the wrong statute of limitations. (/d.) The Third Circuit, however, has stated that
non-capital cases, attorney error, miscalculation, inadequate research, or other mistakes have
not been found to rise to the ‘extraordinary’ circumstances required for equitable tolling.” LaCava
v. Kyler, 398 F.3d 271, 276 (3d Cir. 2005) (citing Merritt v. Blaine, 326 F.3d 157, 169 (3d Cir.
2003)); see also Johnson v. Hendricks, 314 F.3d 159, 160-62 (3d Cir. 2002) (rejecting petitioner’s
argument that the statute of limitations should be equitably tolled because his counsel gave him
the wrong statute of limitations for his habeas corpus petition).
Plaintiff also asserts “illness” as a reason to tol! the limitations, however, it is unclear
whether Plaintiff is referring to mental or physical illness. (Pl.’s Opp’n Br. 5.) “Mental incapacity,

I]

involving unusual circumstances, has been recognized as a basis for equitable tolling of statutes of
limitations.” Patnaude v. Gonzales, 478 F. Supp. 2d 643, 648-49 (D, Del. 2007). To warrant
equitable tolling, “the alleged mental illness must be demonstrated and compelling.” /d.; see,
e.g., Hedges v. United States, 404 F.3d 744, 753 (3d Cir. 2005) (holding that plaintiff's “pro se
status and depression do not justify equitable tolling”); Powell v, Indep. Blue Cross, Inc.,
No. 95-2509, 1997 WL 137198 (E.D. Pa. Mar. 26, 1997) (“To toll a federal statute of limitations,
plaintiff must suffer from a mental illness which in fact prevents [her] from managing [her] affairs
and from understanding and acting on [her] legal rights.”).
Regarding physical illness, “such tolling would only be appropriate if the
physical illness actually prevented [her] from complying with the applicable statute of
limitations.” Vasquez v. Batiste, No. 14-4366, 2015 WL 6687549, at *3 (D.N.J. Oct. 30, 2015);
see also Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000) (stating that the plaintiff's conclusory
and vague claim, without a particularized description of how her condition adversely affected her
capacity to function generally or in relationship to the pursuit of her rights, was “manifestly
insufficient to justify any further inquiry into tolling”). Whichever type of illness Plaintiff is
claiming as a reason for invoking equitable tolling, she only states one word—“illness.” (Compl.
at 5.) Given the standards set forth above for mental and physical illness, Plaintiff's reason as it
stands would be insufficient to warrant equitable tolling.'?

Plaintiff also proffers “homelessness, financial hardship, bankruptcy and caring for her child
with disabilities” as another reason to toll the statute of limitations. As stated previously, Plaintiff
failed to plead any facts supporting those assertions, and therefore the Court grants Defendants’
Motions to Dismiss. Plaintiff may file an Amended Complaint and provide the Court with
sufficient facts to support her allegations. See, e.g., Daniels v. Univ. of Pittsburgh Med. Ctr.,
No. 14-1118, 2015 WL 2341265, at *4 (W.D. Pa. May 14, 2015) (finding that the plaintiff's
request for equitable tolling based upon homelessness was insufficient because the plaintiff did
not give any information regarding duration of homelessness or factual circumstances related to
the plaintiff's homelessness).

12

B. Complaint on its Merits
Because the Court grants Plaintiff leave to amend her Complaint, the Court addresses the
substantive deficiencies in Plaintiff's federal claims. The Court finds that many of Plaintiff's
claims do not meet the requisite pleading standard.'*
I. Liability of Municipalities
Plaintiff brings a supervisory liability and/or municipal liability claim against the Board
and the Ocean Township Police Department. A local government unit or supervisory official is
not liable pursuant to Section 1983 solely based on a theory of respondeat superior. See Monell v.
N.Y.C. Dep't of Soc. Serv., 436 U.S. 658, 690-91 (1978). Municipal liability, however, may attach
“when execution of a government’s policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy, inflicts the injury” of which is
complained. /d. at 694; see also Connick vy. Thompson, 563 US. 51, 60 (2011).
A municipal policy generally is a “statement, ordinance, regulation, or decision officially
adopted and promulgated by” the municipality’s official. Monell, 436 U.S. at 690. A municipal
custom is one that, “[a]though not authorized by law,” is “so permanent and weil settled as to
constitute a ‘custom or usage’ with the force of law.” fd. at 691. See also Connick, 563 U.S. at
61 (“Official municipal policy includes the decisions of a government’s lawmakers, the acts of its
policymaking officials, and practices so persistent and widespread as to practically have the force
of law.”). Here, the Complaint fails to allege any custom, policy or practice caused an injury.
Plaintiff failed, accordingly, to raise a Monel/ claim against the Board or the Ocean Township
Police Department.

'3 Plaintiff names Ocean Township Council as a Defendant but pleads no facts to assert this
particular defendant violated her rights.

13

2. False Arrest
“Tt is well established that the Fourth Amendment prohibits a police officer from arresting
a citizen except upon probable cause.” Reedy v. Evanson, 615 F.3d 197, 211 (3d Cir, 2010).
Therefore, “‘[t]o state a claim for false arrest under the Fourth Amendment, a plaintiff must allege
(1) that there was an arrest, and (2) that the arrest was made without probable cause.” Gonzalez v.
Bobal, No. 13-1148, 2015 WL 1469776, at *4 (D.N.J. Mar. 30, 2015) (citing James v. City of
Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012)).
Although Plaintiff’s actual arrest is undisputed, Plaintiff fails to allege facts supporting her
assertion that she was arrested without probable cause. Rather, Plaintiff argues there was no
evidence “a crime was afoot[,]” but also states she was arrested due to an “outstanding traffic
warrant.” (See Compl. at 2, 6, 8.) Police officers, however, may lawfully arrest individuals due
to outstanding traffic warrants. See Applewhite v. Twp. of Millburn, No. 11-6957, 2013 WL
5574569, at *5 (D.N.J. Oct. 9, 2013) (“There is no dispute that [the police officer] could
lawfully arrest (the plaintiff] once he was aware of the [outstanding traffic] warrant.”). Plaintiff's
Complaint, therefore, fails to plead facts supporting her false arrest allegations.
3. Malicious Prosecution
Plaintiff must plead facts regarding five elements in order to meet the pleading standard
for a malicious prosecution claim under Section 1983. Kossler v. Crisanti, 564 F.3d 181, 186
(3d Cir. 2009). Specifically, Plaintiff must allege facts to support that:
(1} the defendants initiated a criminal proceeding; (2) the criminal
proceeding ended in plaintiffs favor; (3) the proceeding was
initiated without probable cause; (4) the defendants acted
maliciously or for a purpose other than bringing the plaintiff to
justice; and (5) the plaintiff suffered deprivation of liberty consistent

14

with the concept of seizure as a consequence of a legal
proceeding.!'41
see also Smith v. New Jersey, No. 12-0478, 2012 WL 5185611, at *4 (D.N.J. Oct. 18, 2012).
The Third Circuit has held that “[p]retrial custody and some onerous types of pretrial,
non-custodial restrictions constitute a Fourth Amendment seizure.” DiBella v. Borough of
Beachwood, 407 F.3d 599, 603 (3d Cir. 2005). “Because under the common law, the tort of
malicious prosecution concerns ‘perversion of proper legal procedures,’ [the plaintiff] must show
that [she] suffered a seizure as a consequence of a legal proceeding.” Gallo, 161 F.3d at 222
(quoting Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 117 (2d Cir. 1995).)
The Court finds Basile v. Township of Smith, 752 F. Supp. 2d 643 (W.D. Pa. 2010),
persuasive. In relevant part, the plaintiff asserted a malicious prosecution claim under Section
1983. Basile, 752 F. Supp. 2d at 658. The plaintiff argued he satisfied the definition of a seizure
because he was arrested, taken to the police station for questioning prior to the initiation of criminal
charges, and required to attend a preliminary hearing after a criminal complaint had been filed. /d.
at 660. The Basile court held these allegations did not constitute a seizure because a seizure for
the purposes of a malicious prosecution claim, “must occur only as a subsequent aftereffect of an
arrest and filing of charges.” /d. (internal quotations omitted), “[An] arrest alone is not enough in
this circuit to constitute a seizure.” Jd. at 660. As to the pretrial proceeding, the Basile court made
clear “that attending court proceedings does not constitute a seizure for purposes of the Fourth
Amendment.” □□□ (citing DiBella, 407 F.3d at 603).

4 The Third Circuit has noted that “prosecution without probable cause is not, in and of itself, a
constitutional tort.” Gallo v. City of Phila., 161 F.3d 217, 222 (3d Cir. 1998), “Instead, the
constitutional violation is the deprivation of liberty accompanying the prosecution,’ which raises
a claim of violation of the Fourth Amendment right not to be subjected to unreasonable seizures.”
Smith vy. New Jersey, No. 12-0478, 2012 WL 5185611, at *6 n.2 (D.N.J. Oct. 18, 2012) (quoting
Gallo, 161 F.3d at 222).

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Here, Plaintiff asserts the police arrested her, imprisoned her for over twenty-four hours,
and ultimately charged her with a robbery. (Compl. at 2.) As noted above, Plaintiff's arrest alone
is insufficient to constitute a seizure, and Plaintiff fails to allege any facts subsequent to that arrest
that would support her malicious prosecution allegations. See, ¢.g., Lassoff v. New Jersey, 414
F. Supp. 483, 492 (D.N.J. 2006) (dismissing the plaintiff's malicious prosecution claim because
the plaintiff failed to plead any facts supporting such a claim, such as being “required to post bond
or contact the court or pre-trial services,” or being “subject to travel restrictions or any other
restriction on his lifestyle.”’)
4. Conspiracy
The Court also construes a conspiracy claim stemming from Plaintiff's statement that “it
is clear that there was a conspiracy to violate Ms. Lloyd’s rights.” (Compl. at 15.) To plead a
civil conspiracy claim under Section 1983, a plaintiff must allege facts that “support the existence
of the elements of conspiracy: agreement and concerted action.” Capogrosso v. Supreme Court of
N.J., 588 F.3d 180, 185 (3d Cir. 2009) (quoting Crabrree v. Muchmore, 904 F.2d 1475, 1480-81
(10th Cir. 1990)), Conclusory allegations of an agreement to commit a conspiracy are insufficient;
“[iJnstead, specific facts addressing the time the agreement was made, the period of the conspiracy,
the exact parties to the agreement, and the object of the conspiracy are required.” Great W. Mining
& Mineral Co. v. Fox Rothschild, LLP, 615 F.3d 159, 178-79 (3d Cir. 2010); Pittman v.
Martin, No. 13-4342, 2014 WL 2727005, at *2 (3d Cir. June 17, 2014). Here, Plaintiff only makes
conclusory statements regarding a conspiracy without alleging any facts to show there was an

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agreement between co-conspirators.'* Therefore, if Plaintiff intended to raise a conspiracy claim,
then she has not sufficiently pled such claim.
IV. Conclusion
For the reasons set forth above, the Board and Law Enforcement Defendants’ Motions to
Dismiss are granted. The Court grants Plaintiff leave to file an amended complaint. In her
amended complaint, Plaintiff must plead facts demonstrating that equitable tolling applies, as well
as meet the pleading requirements for her substantive claims. The Court will enter an Order
consistent with this Memorandum Opinion.
s/ Michael A. Shipp
MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE

Dated: August 31, 2019

Plaintiff's conclusory allegations are also insufficient to support a claim for racial discrimination
under 42 U.S.C. § 1985 (“Section 1985”). The elements of a Section 1985 claim are:
“(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class
of persons of the equal protection of the laws, or of equal privileges and immunities under the
laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is injured in his person
or property or deprived of any right or privilege of a citizen of the United States.” Farber v. City
of Paterson, 440 F.3d 131, 134 (3d Cir. 2006) (internal quotations and citations omitted).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10654716. Public record. Not legal advice.