TERRANOVA v. BOROUGH OF HASBROUCK HEIGHTS

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CHRISTOPHER TERRANOVA, As a .

parent and a legal guardian of his

minor children, C.T. and G.T.,

OPINION

Plaintiff,

v.

BOROUGH OF HASBROUCK

HEIGHTS, HASBROUCK HEIGHTS

SCHOOL DISTRICT POLICE CHIEF

MICHAEL COLANERI IN HIS

INDIVIDUAL AND OFFICIAL

CAPACITIES, CIVIL ACTION

OFFICER HAROLD VAN WINKLE, IN

HIS INDIVIDUAL AND OFFICIAL

CAPACITIES, DR. MATTHEW

HELFANT, IN HIS INDIVIDUAL AND

OFFICIAL CAPACITIES,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Plaintiff Christopher Terranova, as parent and legal guardian of two

minor children identified as C.T. and G.T., asserts in the amended complaint

that an officer of the Borough of Hasbrouck Heights Police Department (the

“Police Department”) stationed at the children’s school violated their

constitutional rights when he used excessive force. Before the Court is the

motion of two of the defendants, the Hasbrouck Heights School District (the

“School District”) and its superintendent, Dr. Matthew Helfant, to dismiss the

amended complaint. To be clear, the police officer, the police chief, and the

Borough of Hasbrouck Heights (the “Borough”) have answered the complaint;

the issue of their liability, and whether the officer acted wrongfully, will be

determined elsewhere. The issue here is whether any such liability—assuming

it exists—should extend to the School District and its superintendent.

Defendants Dr. Helfant and the School District assert that the amended

complaint does not allege factually that they were responsible for supervising

and training this police officer or that they knew of or acquiesced in the

officer’s behavior (assuming it occurred as alleged). Without such allegations,

say these defendants, they cannot be held liable under 42 U.S.C. § 1983 or its

state analogue. Accordingly, they move to dismiss the amended complaint

under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon

which relief can be granted. (DE 16) Dr. Helfant moves separately to dismiss

plaintiff's demand for punitive damages.

Plaintiff replies that Dr. Helfant was a policymaker with respect to the

placement of officers within the School District. (DE 27) As he sees it, Dr.

Helfant and the School District failed to ensure that the assigned police officer

had adequate training, and they acquiesced in his improper behavior. (Jd.)

Plaintiff adds that his right to pursue punitive damages from Dr. Helfant in his

individual capacity should not be cut off at the pleading stage, before any facts

have been developed. (id.)

For the reasons expressed in this opinion, I will grant the motions of Dr.

Helfant and the School District to dismiss Counts 2 and 3 as to themselves

only. (DE 16)

I. Summary}!

a. Factual background

The School District entered into an agreement with the local Police

Department to provide security at its schools. (Am. Cplt. 13) The agreement

Citations to the record will be abbreviated as follows. Citations to page numbers

refer to the page numbers assigned through the Electronic Court Filing system, unless

otherwise indicated:

“DE” = Docket entry number in this case.

“Am. Cplt.” = The amended complaint filed by plaintiff in this action (DE 13).

provided that the Police Department would provide security officers for three

schools in the School District, including Lincoln Elementary School. (/d.) The

Police Department agreed to station one officer at Lincoln Elementary School.

That officer, plaintiff agrees, “was at all times acting in the scope of his

employment with the police department, was subject to the rules and

regulations of the police department, and was to act under the direction of the

[Hasbrouck Heights] Chief of Police.” (id. | 14) The purpose of having an officer

stationed at a school was to prevent and deter anyone who posed a threat to

the safety and welfare of the children from entering the school. (Id. | 17)

Those selected for assignment to Lincoln Elementary School were

otherwise-retired police officers, classified as “Class IM” officers. The complaint

explains that a Class III officer “maintains full police powers and

responsibilities on duty, and is subject to the applicable laws and police

policies for the police department where said officer is employed.” (Jd. 15) One

such officer assigned to Lincoln Elementary School was defendant Harold Van

Winkle.

In August 2018, Chief of Police Michael Colaneri applied for and received

a waiver from the Police Training Commission that allowed Officer Van Winkle

to bypass the Police Training Commission’s basic training requirements prior to

being assigned to Lincoln Elementary. (Jd. 7 31) Van Winkle had not received

state-mandated training for school resource officers (“SROs”) prior to his

assignment to the School District. (fd. 33) In mid-November 2018, Van

Winkle was assigned to Lincoln Elementary (id. { 19), where plaintiff's children,

C.T. and G.T., were enrolled (id. J 12).

Plaintiff asserts that school policy required all students to keep their

backpacks near the front entrance to the school. (/d. 18) On one occasion in

November 2018, while the children were congregated by their backpacks,

Officer Van Winkle began yelling at the children because they were being loud.

(id. | 20) It was not Officer Van Winkle’s duty, says plaintiff, to monitor the

children’s behavior. (Jd. ] 21) Nevertheless, on that day in mid-November,

Officer Van Winkle threatened and intimidated the children into being quiet by

banging his baton against a wall. Id. 7 22) After this warning, C.T. madea

noise. In response, Officer Van Winkle shoved his baton into C.T.’s

chest/collarbone and pressed C.T. against a wall. (Id. | 23) This caused C.T.

physical pain and prevented him from leaving. (Id.)

Plaintiff alleges that Officer Van Winkle in late November 2018 kicked

G.T.’s schoo! bag and the bag of another child for no reason. (/d. § 26) These

outbursts, plaintiff alleges, put G.T. into reasonable fear of imminent bodily

harm. (id. 27)

Plaintiff asserts that defendants Dr. Helfant and the School District were

aware of Van Winkle’s lack of proper training and that by “allowing Van Winkle

to work at [the School District] without adequate training,” all defendants,

including the Police Department and Dr. Helfant, “knowingly allowed Van

Winkle to interact with students and perform duties inside school without the

training required to properly perform the functions of the job.” (/d. 44] 35-36)

Plaintiff also alleges that “Chief Colaneri and/or Dr. Helfant were aware of the

aforementioned incidents.” (Id. | 37) The complaint admits that Van Winkle

was removed from his assignment by Chief Colaneri after complaints were

submitted. (Id. ] 30) But, despite these incidents, “within months,” Chief

Colaneri, with the permission of Dr. Helfant and the School District, who are

alleged to have final say over which officers are permitted inside the School

District facilities, assigned Van Winkle to schools within the School District.

(id. 4 39-43)

It is alleged on information and belief that Van Winkle was sent for SRO

training in April 2019. (id. 4 34)

b. Procedural History

On May 14, 2019, plaintiff filed the complaint in the United States

District Court for the District of New Jersey. (DE 1) The matter was initially

assigned to Judge Vazquez.

On June 20, 2019, defendants the School District and Dr. Helfant filed a

motion to dismiss the complaint. (DE 4)

On July 22, 2019, plaintiff filed a letter (DE 7) indicating that he

intended to amend the complaint to address some of the issues raised in

defendants’ initial motion to dismiss.

On July 29, 2019, plaintiff then filed an amended complaint. (DE 11) The

amended complaint asserts three claims:

Count One: 42 U.S.C. § 1983 claim for use of excessive force asserted

against Officer Van Winkle;

Count Two: U.S.C. § 1983 claim for violations of plaintiff's

Constitutional rights asserted against all defendants; and

Count Three: New Jersey Civil Rights Act claim asserted against all

defendants.

On July 30, 2019, Judge Vazquez administratively terminated

defendants’ initial motion to dismiss (DE 4) without prejudice to the right to

refile in light of the plaintiff's intervening filing of an amended complaint. (DE

12)

On August 23, 2019, the School District and Dr. Helfant moved to

dismiss the arnended complaint. (DE 16) Plaintiff opposes that motion. (DE 27)

On December 30, 2019, this matter was reassigned to me.

Il. Discussion

a. Legal standard

Rule 12(b)(6), Fed. R. Civ. P., provides for the dismissal of a complaint if

it fails to state a claim upon which relief can be granted. The defendant, as the

moving party, bears the burden of showing that no claim has been stated.

Animal Science Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9

(3d Cir. 2011). For the purposes of a motion to dismiss, the facts alleged in the

complaint are accepted as true and all reasonable inferences are drawn in favor

of the plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman Const.

Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).

Federal Rule of Civil Procedure 8(a) does not require that a complaint

contain detailed factual allegations. Nevertheless, “a plaintiff's obligation to

provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Beli Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Phillips v.

Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Rule 8 “requires a

‘showing’ rather than a blanket assertion of an entitlement to relief.” (citation

omitted)). Thus, the complaint’s factual allegations must be sufficient to raise a

plaintiffs right to relief above a speculative level, so that a claim is “plausible

on its face.” Twombly, 550 U.S. at 570; see also West Run Student Hous.

Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013).

That facial-plausibility standard is met “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Twombly, 550 U.S. at 556). While “(t]he plausibility standard

is not akin to a ‘probability requirement’... it asks for more than a sheer

possibility.” Id.

b. Count 2: Section 1983 Claims

“Section 1983 imposes civil liability upon any person who, acting under

the color of state law, deprives another individual of any rights, privileges, or

immunities secured by the Constitution or laws of the United States.” Shuman

ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005).

Plaintiff seeks to hold defendants the School District and Dr. Helfant

liable for the acts of Officer Van Winkle through theories of supervisory liability

and failure to train. I discuss these theories as they relate to each defendant

below.

i. Dr. Helfant

1. Standard

Generally, personal involvement is essential to liability on a civil rights

claim, and liability cannot rest on a theory of respondeat superior. See

Chavarniaga v. N.J. Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015).

Supervisory liability generally requires some affirmative conduct by the

supervisor, such as a supervisor’s implementation or maintenance of a policy,

practice, or custom that caused the plaintiff constitutional harm. Parkell v.

Danberg, 833 F.3d 313, 330 (3d Cir. 2016); Santiago v. Warminster Township,

629 F.3d 121, 129 n.5 (3d Cir. 2010).

There are two potential theories of supervisory liability. Under the first

theory, defendants may be sued as policy makers “if it is shown that such

defendants, ‘with deliberate indifference to the consequences, established and

maintained a policy, custom, or practice which directly caused [the]

constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372

F.3d 572, 586 (3d Cir. 2004) (quoting Stoneking v. Bradford Area Sch. Dist., 882

F.2d 720, 725 (3d Cir. 1989)).

For a failure to supervise or train claim to amount to “deliberate

indifference” a plaintiff must show “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. Carter

v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999) (citing Walker v. City of New

York, 974 F.2d 293, 297-98 (2d Cir. 1992) (footnote omitted)).

The second theory of liability provides that a supervisor may be

personally liable under § 1983 if he or she participated in violating the

plaintiff's rights, directed others to violate them, or, as the person in charge,

had knowledge of and acquiesced in the subordinates’ violations. See Baker v.

Monroe Township, 50 F.3d 1186, 1190-91 (3d Cir. 1995). Knowledge in a

“failure to supervise” claim must consist of either “contemporaneous knowledge

of the offending incident or knowledge of a prior pattern of similar incidents.”

C.H. ex. rel. Z.H. v. Oliva, 226 F.3d 198, 202 (3d Cir. 2000). A plaintiff “must

portray specific conduct by state officials which violates some constitutional

right.” Gittlemacker v. Prasse, 428 F.2d 1, 3 (3d Cir. 1970).

2, Failure to Supervise

In Count 2, Mr. Terranova seeks to hold Dr. Helfant liable for Officer Van

Winkle’s alleged use of excessive force on the basis that (1) Dr. Helfant bears

responsibility for creating “policies and/or customs which caused the

deprivation of G.T.’s and C.T.’s constitutional and statutory rights” (see Am.

Cplt. § 56); or (2) that Dr. Helfant maintained policies that were deliberately

indifferent to the constitutional rights of the students at Lincoln Elementary

School because he knew of the harms inflicted by Officer Van Winkle and failed

to act. (fd.) Thus, plaintiff asserts either that Dr. Helfant personally

participated in the harm or was deliberately indifferent to the harm.

Regarding Dr. Helfant’s personal involvement, Mr. Terranova does not

assert any facts suggesting that Helfant personally directed a violation of

plaintiffs children’s rights or knew of or participated in the harm. The

supervisory claim in the amended complaint is premised entirely on the

allegation that Dr. Helfant “knew and acquiesced to” the alleged constitutional

violations and, despite this knowledge, did not promulgate any corrective

policies or take action to permanently remove Van Winkle. (Id. 4 35, 37-38,

38)

These allegations, setting aside their heavy reliance on “information and

belief”? and somewhat conclusory nature, at best allege that Dr. Helfant learned

of the incident or incidents after they occurred. They fail to suggest how

Helfant’s actions caused or contributed to these incidents at the time. Nor do

they suggest factually that Dr. Helfant’s behavior, policies, or customs

contributed to the harm. The amended complaint vaguely asserts that Dr.

Helfant was a “policymaker” in that he had to approve who was assigned to

each school within the School District. (Id. J 15) To accept this allegation—that

Dr. Helfant is liable because he hired or approved the hiring of the offending

person—is tantamount to respondeat superior, which is not a basis for liability.

This allegation does not establish what policy instituted by Dr. Helfant enabled

Officer Van Winkle to use the excessive force that resulted in the harm here.

Furthermore, the amended complaint does not even suggest that Dr.

Helfant in either his individual or official capacity was Van Winkle’s supervisor.

Indeed, the amended complaint establishes the opposite: that Van Winkle was

employed by and supervised by the Police Department and /or Chief Colaneri.

(id. 4 15, 17) “[A]t all times,” the complaint alleges, the officer acted as an

employee of the Police Department and was subject to the rules, regulations,

and policies of the Police Department. (Jd. J] 14, 15, 17)

In short, Mr. Terranova has adduced no facts demonstrating Dr.

Helfant’s personal involvement. This attempt to hold Dr. Helfant liable based

on nothing more than his general supervisory authority rests, at least

implicitly, on the doctrine of respondeat superior. See Munoz v. City of Union

City, 481 F. App’x 754, 760 (3d Cir. 2012). Such liability is not permitted in

civil rights actions. See Chavarriaga, 806 F.3d at 222.

I turn to the allegation of supervisory liability based on Dr. Helfant’s

personal knowledge of the harm and deliberate indifference thereto. As noted

supra, that Third Circuit in Carter adopted three factors for determining when

allegations amount to deliberate indifference. Carter, 181 F.3d at 357 (citing

Walker 974 F.2d at 297-98). I find that factor (1)—that Dr. Helfant knew that

Officer Van Winkle would confront a situation like the one that led to the

alleged harms—has not been sufficiently alleged. The amended complaint

states that Officer Van Winkle was stationed at Lincoln Elementary School for

the purpose of “deter[ring] and prevent[ing] intruders and/or dangerous

individuals from entering the school.” (Am. Cplt. 7 17, 21) There are no

allegations that Officer Van Winkle’s contemplated responsibilities included the

disciplining of children; that Dr. Helfant knew he would do so; or, a fortiori,

that Helfant could reasonably have foreseen that, in doing so, the officer would

become angry and act inappropriately.

Regarding factor (2)—that the situation involves a history of employee

mishandling—there are no relevant factual allegations. There is nothing to

suggest that, prior to the first incident, Dr. Helfant had any actual knowledge

of concerns regarding Van Winkle. The amended complaint asserts that

following the C.T. incident, Officer Van Winkle then kicked G.T.’s backpack. (/d.

q 26) Only an extremely generous review of these allegations suggests that this

conduct violates G.T.’s constitutional rights. But in any event, there are no

specific factual allegations that Dr. Helfant knew of either incident before they

occurred. The complaint objects that the removal of Officer Van Winkle was

only temporary, and that he went to work at another school, The manner in

which that subsequent assignment could have violated the rights of C.T. or

G.T., however, is unspecified.

Finally, I will assume for argument’s sake that factor (3)—that the wrong

choice by Officer Van Winkle could frequently cause a deprivation ofa

student’s constitutional rights—is met.

Nevertheless, taken as a whole, the amended complaint does not plead

deliberate indifference on the part of Dr. Helfant. There are no facts that he had

personal knowledge that Officer Van Winkle had some relevant propensity or

predisposition. There is no factual allegation that Helfant turned a blind eye to

Officer Van Winkle’s alleged behavior. When confronted with complaints from

parents, someone in authority removed Van Winkle from Lincoln Elementary

(although it is alleged that he was subsequently reassigned within the School

District). (Id. [7 39, 40)

Accordingly, Count 2, insofar as it is based on Dr. Helfant’s failure to

supervise Officer Van Winkle, is dismissed for failure to state a claim.

3. Failure to Train

Plaintiff’s failure-to-train theory of liability, in respect to Dr. Helfant,

suffers from the same pleading defects as the failure-to-supervise theory.

10

The Third Circuit has explained that “a failure to train may amount to

deliberate indifference where the need for more or different training is obvious,

and inadequacy very likely to result in violation of constitutional rights .... For

example, if the police often violate rights, a need for further training might be

obvious.” Carter, 181 F.3d at 357. The courts have been wary of permitting a

self-proving allegation to the effect that a violation occurred, and that therefore

there must have been inadequate training. Thus the alleged existence ofa

“policy” of failing to properly train personnel has been called a “most tenuous”

basis for liability. Connick v. Thompson, 563 U.S. 51, 61, 131 8. Ct. 1350, 1359

(2011). In Thomas v. Cumberland County, 749 F.3d 217 (3d Cir. 2014), the

Court of Appeals helpfully summarized the elements of such a “failure-to-train”

claim, which must rise to the level of “deliberate indifference” and bear a close

causal relation to the violation that occurred:

Where the policy “concerns a failure to train or supervise

municipal employees, liability under section 1983 requires a

showing that the failure amounts to ‘deliberate indifference’ to the

rights of persons with whom those employees will come into

contact.” Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999)

(quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)

(“Canton”). Additionally, “the identified deficiency in a city’s

training program must be closely related to the ultimate injury;” or

in other words, “the deficiency in training [must have] actually

caused” the constitutional violation. Canton, 489 U.S. at 391.

Id. at 222.

As an initial matter, the amended complaint does not allege how Dr.

Helfant was personally responsible for training an officer who was an employee

of the Police Department. By plaintiffs own admission, Officer Van Winkle was

not an employee of Dr. Helfant: Officer Van Winkle “was at all times acting in

the scope of his employment with the police department, was subject to the

rules and regulations of the police department, and was to act under the

direction of the [Hasbrouck Heights] Chief of Police.” (Id. { 14) As such, Officer

Van Winkle “maintain[ed] full police powers and responsibilities on duty, and

[was] subject to the applicable laws and police policies for the police

11

department where said officer is employed.” (/d. 4 15) This alone is fatal to

plaintiffs failure to train claim with respect to Dr. Helfant.

Nevertheless, the amended complaint appears to base its failure to train

theory on the following allegations:

e Officer Van Winkle was given a waiver by the Police Department

such that he did not have to sit through “basic training” prior to

his assignment at Lincoln Elementary, (Am. Cplt. 7 31);

e Officer Van Winkle had not been sent by the Police Department to

Police training Commission mandated training for school resource

officers. (Id. | 32-33);

e Dr. Helfant was “aware of Van Winkle’s failure to attend said

training, yet [] kept him assigned to [the School District].” (Am.

Cplt. 7 36).

Under these facts, it is hardly “obvious” from someone in Dr. Helfant’s

position that Officer Van Winkle had inadequate training to the point that Dr.

Helfant was deliberately indifferent. See Carter, 181 F.3d at 357. Generally, an

inadequate-training allegation is brought against the person’s employer—here,

the police department—and it is in fact asserted against that employer. The

inadequate-training allegation against Dr. Helfant is tenuous, as he stands at

one remove from any responsibility for training. Officer Van Winkle was

assigned to the School District at the recommendation of the Police

Department. Based on the determination of the police department, Officer Van

Winkle qualified for and received a waiver of “basic training.” Dr. Helfant’s

acceptance of the police department’s recommendation of Officer Van Winkle, a

retired “Class III” officer who presumably had years on the job, was thus

reasonable and does not in itself bespeak negligence, let alone “deliberate

indifference.”

At the motion-to-dismiss stage, I accept as true the allegation that the

police department had not sent Van Winkle to specialized training for school

resource officers. (Id. 4 33, 36) Still, the allegations fall short:

e The amended complaint makes no actual factual assertions

making it plausible that Dr. Helfant was aware, before the incident,

12

that Van Winkle had not been sent for the SRO training, which (as

the complaint itself states) is a police department responsibility.

e Nor does the complaint identify some aspect or component of the

training that bore the required very specific causal connection to

the violation alleged here.

e Nor does the amended complaint really allege that the training

requirements were not complied with, even by the police

department—let alone that Dr. Helfant should have been aware of

such noncompliance.?

Thus it cannot be said that Dr. Helfant is alleged factually to have acted with

deliberate indifference with respect to Officer Van Winkle’s training.

For the foregoing reasons, Dr. Helfant’s motion to dismiss Count 2 is

granted.

ii. The School District’s Liability

The issues in relation to the School District’s liability are closely related,

although technically distinct. Terranova alleges Monell liability claims against

the School District. He asserts that the School District failed to supervise

Officer Van Winkle and failed to train him in a way that would ensure that he

did not violate C.T’s and G.T’s constitutional rights.

The short answer to these contentions is that the amended complaint’s

theory of liability appears to flow to the School District solely through the

action or inaction of its superintendent, Dr. Helfant. For the reasons stated

above, the amended complaint fails to plead an underlying constitutional

2 Guidance on the Police Training Commission’s website indicates that SRO

training must be completed within 12 months after appointment. See

https://www.state.nj.us/Ips/dej/nipte/pdf/SLEO-Ilil_ Checklist.pdf, Officer Van

Winkle was appointed as a Class III officer in August 2018, and the complaint itself

acknowledges that he was sent for SRO training some nine months later, in April

2019. (Am. Cplt. J] 31-34) The statute authorizing the creation of a SRO training

course and promulgation of regulations for that purpose is N.J. Stat. Ann. § 52:17B-

71.8. That statute is accompanied by a statement of the Assembly Education

Committee Statement which specifically provides that the bill “does not preclude a

school district from appointing a safe schools resource officer without referral to or

certification by the academy.” The sense of that statement, and even of the statute

itself, is that the course will be offered to persons currently employed by the police or

the district.

13

violation against Dr. Helfant. It follows that the School District cannot be

derivatively liable for such a violation.

The standard for municipal liability for actions of employees was

delineated in Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978).

Section 1983 liability cannot be predicated on respondeat superior. See id. at

694; Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parrat v.

Taylor, 451 U.S. 527, 537 n. 3 (1981)). Rather, it is only “when execution of a

government’s policy or custom, whether made by its lawmakers or by those

whose edicts and acts may fairly be said to represent official policy, inflicts the

injury ... [that] the government as an entity is responsible under § 1983.”

Monell, 436 U.S. at 694. The two paths to Monell liability, then, are municipal

“policy” or “custom.”

“Policy is made when a ‘decisionmaker possessjing] final authority to

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

proclamation, policy, or edict.’ Custom, on the other hand, can be proven 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.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (citations omitted).

Allegations of “continued official tolerance of repeated misconduct” and that the

municipality has done nothing to end or change the practice, supports a

finding of a custom attributable to the municipality. Jd. at 851-52.

1, Failure to Supervise

The amended complaint asserts that the School District “failed to

properly supervise Defendant Van Winkle with regard to the excessive use of

force towards students.” (Am. Cplt. § 58) The School District, says plaintiff,

through its school board “controls all operations for the entire Hasbrouck

Heights School District” (see id. 10), and that with the permission of the

14

School District, Van Winkle was returned to an assignment within the District.4

(id. J 40)

These allegations are insufficient as they consist solely of legal

boilerplate. As noted above, see Section II.b.i.2, the amended complaint fails to

make any factual allegation of an express District policy or custom authorizing

Officer Van Winkle’s alleged improper conduct. To the extent the amended

complaint does allege any facts related to that issue, they directed to the

activity or inactivity of the Police Department and its Chief of Police, who,

according to the complaint itself, employed and supervised Van Winkle. (See id.

4] 14-15, 31-33) By contrast, the allegations with respect to the School

District are mere assertions of an entitlement to relief, which, without

supporting factual allegations, which are insufficient under Fed. R. Civ. P.

8{a)(2). See McTeman v. City of York, 564 F.3d 636, 658 (3d Cir, 2009)

I therefore find that Count 2 does not sufficiently allege a failure to

supervise with respect to the School District. The School District’s motion to

dismiss Count 2 in so far as it asserts a failure to supervise theory of liability is

dismissed.

2. Failure to Train

Likewise, the amended complaint fails to assert a claim that the School

District is liable to plaintiff for failure to train Officer Van Winkle. The amended

complaint contains no facts to suggest that Officer Van Winkle was an

employee of the School District, or that the School District was responsible for

his training. As noted above, this fact alone severely undermines plaintiff's

failure-to-train claims with respect to the School District. Carter, 181 F.3d at

357; see Section II].b.i.2, supra.

I will assume, however, that this pleading deficiency was not fatal; the

School District is alleged, not to have botched the training itself, but to have

permitted the assignment of someone it knew was not properly trained. Still,

3 Allegations dating from after the incident, while not irrelevant, do not establish

that a prior policy permitted the incident to occur.

15

there are no factual allegations that the Police Department failed to comply

with training requirements, that anyone at the School District had specific

knowledge of any alleged noncompliance, condoned the alleged lack of training,

or acted with deliberate indifference when confronted with information that

Officer Van Winkle did not have the supposed requisite training.

Count 2 is therefore dismissed with respect to the School District.

c. Count 3: NJCRA Claim

The third count alleges a violation of state constitutional protections

under the New Jersey Civil Rights Act (“NJCRA”). The NJCRA, N.J. Stat. Ann. §

10:6-2(c), provides that “[ajny person who has been deprived of any substantive

rights, privileges or immunities secured by the Constitution or laws of this

State by a person acting under color of law, may bring a civil action for

damages.”

The New Jersey State Legislature, when it enacted the NUCRA, intended

it to parallel 42 U.S.C. § 1983, and sought to incorporate existing § 1983

jurisprudence. Perez v. Zagami, 218 N.J. 202, 515 (2014); see also RaCapt. Mos

v. Flowers, 429 N.J. Super. 13, 23 (App. Div. 2012) (stating that NJCRA was

“modeled on the federal civil rights law which provides for a civil action for

deprivation of civil rights.” (citations omitted)). Thus, the NJCRA is construed

nearly identically to Section 1983.

In Count 3, Mr. Terranova alleges that defendants are liable under the

New Jersey Civil Rights Act for his children’s harm during the two incidents in

November 2018 because of the same intentional and willful acts asserted under

Count 2. (Am. Cplt. § 64-66) The parties have not suggested any distinction

between the Count 3 claims under NJCRA and their Count 2 counterparts

under 42 U.S.C. § 1983. Therefore, for the reasons outlined in Section II.b,

supra, defendants’ motion to dismiss Count 3 with respect to Dr. Helfant and

the School District is granted.

Ill. Conclusion

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For the reasons set forth above, the motion of defendants the School

District and Dr. Helfant to dismiss the complaint against themselves only (DE

16) is granted. This dismissal is without prejudice to the filing, within 30 days,

of a properly supported motion to amend. Dr. Helfant’s motion to dismiss

plaintiff's prayer for punitive damages is dismissed as moot.

An appropriate order follows.

Dated: January 30, 2020.

United States District Judge

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