BELLINGER v. THE CITY OF PERTH AMBOY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHRISTOPHER CURTIS BELLINGER III,

Plaintiff,

v. Civil Action No. 24-8442

THE CITY OF PERTH AMOBY, PERTH

AMBOY POLICE DEPARTMENT,

CHIEF LAWRENCE CATTANO in his OPINION

official capacity, and LT. CARMELO

JIMENEZ, DET. BENJAMIN BATISTA,

DET./SGT. DAVID GUZMAN, DET. June 30, 2025

KEVIN SAVOIA, DET. YANELBA

REYES, DET. LUID ALMANZAR, P.O.

JESSICA DEJESUS, individually and in

their official capacity, and “JOHN DOES”

#1-3, individually and in their official

capacity (the name “JOHN DOE” being

fistitious, as the true names are presently

unknown,

Defendants.

SEMPER, District Judge.

THIS MATTER comes before the Court upon Defendants the City of Perth Amboy, Perth

Amboy Police Department (“PAPD”), Chief Lawrence Cattano, Lt. Carmelo Jimenez, Det.

Benjamin Batista, Det./Sgt. David Guzman, Det. Kevin Savoia, Det. Yanelba Reyes, Det. Luis

Almanzar, and P.O. Jessica DeJesus’s (collectively “Defendants”) Motion to Dismiss (ECF 19,

“Motion” or “Mot.”) Plaintiff Christopher Curtis Bellinger III’s (“Plaintiff” or “Bellinger”)

Complaint (ECF 1, “Compl.”). The Court has decided this Motion upon the parties’ submissions,

without oral argument, pursuant to Federal Rule of Civil Procedure 78 and Local Rule 78.1. For

the reasons set forth below, Defendants’ Motion is GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This action stems from an incident involving Plaintiff and law enforcement on September

8, 2023. (Compl. ¶ 1.) Plaintiff, an African American male, owns and operates NDO Construction,

a business through which he “purchases homes to be renovated – often financing them with bank

loans” and “engages in contracting work to transform these homes into properties that can be sold

at a profit.” (Id. ¶ 33.) To assist him in his renovations business, Plaintiff “engages sub-contractors

and manual workers[.]” (Id.) Plaintiff resides at 559 Hazel Avenue, Perth Amboy, New Jersey, a

residence he has owned since 2020. (Id. ¶¶ 8, 32.)

On September 8, 2023, Plaintiff agreed to meet with Mr. Joseph Appice in the area of

Harned Street and Pfeiffer Boulevard in Perth Amboy, near Plaintiff’s home. (Id. ¶¶ 38-40.)

Plaintiff “owed Mr. Appice a balance of $180” for carpentry work previously performed by Mr.

Appice. (Id. ¶¶ 39, 41.) In the afternoon of September 8, Plaintiff drove to meet Mr. Appice in

his 2019 Audi Q7. (Id. ¶ 44.) Plaintiff purchased the vehicle on January 23, 2023, via a financing

agreement with Driveway Finance Corporation (“Driveway”). (Id. ¶ 10.) The vehicle had a New

Jersey license plate number J45-RVM, which Plaintiff obtained from the State of New Jersey on

or about March 13, 2023. (Id. ¶ 11.) On September 8, 2023, Plaintiff carried with him in the

glovebox of his Audi a Sig Sauer P365XL Striker handgun, a magazine, ammunition, and a

concealed carry permit. (Id. ¶ 13.) Plaintiff had obtained a firearm identification card from the

State of New Jersey on April 9, 2022. (Id. ¶ 12.) He purchased the Sig Sauer handgun on July 29,

2022, and obtained a concealed carry permit from the State of New Jersey on January 3, 2023,

which featured an expiration date of January 3, 2025. (Id.)

Mr. Appice drove to the scene in his 2013 Subaru Forester. (Id. ¶ 44.) After arriving to

the area of Harned Street and Pfeiffer Boulevard, Mr. Appice exited his car and approached the

passenger window of Plaintiff’s vehicle. (Id. ¶ 44-46.) After the two men spoke briefly, Plaintiff

paid Mr. Appice the $180 owed for carpentry work. (Id. ¶ 47-48.) The men did not exchange any

items beyond the $180. (Id.) After Mr. Appice returned to his vehicle, Plaintiff drove away from

the scene. (Id. ¶ 49.)

Shortly thereafter, Plaintiff was stopped by Defendant Detective/Sargeant David Guzman

of the PAPD. (Id. ¶ 51.) After stopping Plaintiff, Defendant Guzman directed him to exit the

vehicle. (Id. ¶ 52.) When Plaintiff exited the vehicle, Defendant Detective Benjamin Batista

informed Defendant Guzman that “narcotics had been recovered from Mr. Appice” and “that Mr.

Appice had been arrested[.]” (Id. ¶ 53.) Defendant Guzman then placed Plaintiff under arrest and

searched his body and vehicle. (Id.) As a result of the search, the PAPD recovered $206.00, two

“crumbled up” napkins, two iPhones, and Plaintiff’s handgun, magazine, ammunition, holster, and

concealed carry permit. (Id. ¶ 54.) The search did not recover any “narcotics, narcotic

paraphernalia, [or] packaging materials[.]” (Id.) Plaintiff was then transported to the Perth Amboy

police station. (Id. ¶ 60.)

Plaintiff asserts that “Defendant Guzman alleged in his official incident report that 16

months prior to the September 8, 2023 incident, Defendant Jimenez purportedly informed

[Defendant Guzman] that Defendant Jimenez ‘believed’ that the operator of a black Audi Q7

bearing New Jersey registration J45-RVM…frequented the area of Florida Grove Road and

Stephen Avenue to distribute narcotics to the operator of a silver 2013 Subaru Forester.” (Id. ¶

56.) Plaintiff asserts that this belief was “false” and that the traffic stop was therefore “illegal.”

(Id. ¶ 51.) The incident report indicated that Defendant Guzman was “unable to corroborate” the

information from Defendant Jimenez. (Id. ¶ 56.) Defendant Batista offered the same information

as justification for the arrest “in his sworn affidavit of probable cause.” (Id.)

At the police station, Plaintiff was “booked and fingerprinted.” (Compl. ¶ 61.) In addition

to his vehicle and firearm, the PAPD confiscated Plaintiff’s “Rolex watch valued at $50,000, his

personal and business cellphones, his wallet, cash in the amount of $206.00, and his housekeys.”

(Id.) Plaintiff was charged with “sale of a controlled dangerous substance” and received a

summons “to appear in Middlesex Superior Court on October 12, 2023.” (Id. ¶ 63.) After being

released, Plaintiff “sought return of his personal property,” but was only able to retrieve his work

tools, wallet, and “some of the wallet’s contents.” (Id. ¶ 64.) Plaintiff was unable to retrieve his

vehicle, handgun and accessories, or telephones. (Id.)

Four days later, on September 12, 2023, “six plainclothes PAPD police officers” arrived

unannounced at Plaintiff’s home. (Id. ¶ 66.) At the time of their arrival, Plaintiff was “exercising

in the garage,” and Plaintiff’s wife “asked the officers to wait outside while she called Mr.

Bellinger[.]” (Id.) Despite Plaintiff’s wife’s request, the officers entered the home “uninvited.”

(Id.) The officers claimed that they had a warrant to arrest Plaintiff “for possession of a firearm

while committing a controlled dangerous drug offense[.]” (Id. ¶ 67.) The officers placed Plaintiff

in handcuffs, searched his person, and transported him to “an unmarked PAPD vehicle.” (Id. ¶

68.) Plaintiff’s wife, three children, and neighbors witnessed the arrest. (Id.) After being brought

the precinct, Plaintiff received a second summons for the new charge requiring him to report to

court on October 12, 2023. (Id. ¶¶ 63, 70.) When Plaintiff “inquired where the warrant for his

arrest was…one of the [officers] admitted that there was no warrant for [the] arrest.” (Id. ¶ 69.)

The PAPD thereafter never produced to Plaintiff a warrant for his arrest. (Id. ¶ 71.)

During the pendency of his criminal case, Plaintiff made numerous attempts to retrieve his

personal property. (Id. ¶¶ 72-75.) When Plaintiff inquired via telephone about how he might

retrieve his car, “an unknown PAPD officer told him that he would need to obtain a letter from

Driveway Finance Corporation…the lienholder on [the] Audi, in order to retrieve his car.” (Id. ¶

75.) While Plaintiff “unsuccessfully attempted to obtain the letter requested by PAPD from

Driveway[,]” the department “released the Audi to Driveway without informing” Plaintiff. (Id. ¶

77-78.) Plaintiff asserts that the Middlesex County Prosecutor’s Office had “advised Driveway

that the car was being used by Plaintiff ‘in furtherance of criminal activity’ and that[,] as the owner

of the vehicle, Driveway [was] ‘responsible for taking all reasonable steps to prevent the vehicle

from being utilized in the furtherance of criminal activity.’” (Id. ¶ 79.)

On October 24, 2023, Driveway informed Plaintiff that his car “would be put up for private

sale unless [Plaintiff] paid the remaining purchase price of the car[.]” (Id. ¶ 82.) Plaintiff at the

time could not afford to pay the remaining balance on the vehicle. (Id. ¶ 83.) Driveway then “sold

the Audi at a significantly reduced price and claimed that [Plaintiff] owed them the difference

between the car’s value and the sale price, approximately $20,000.00.” (Id. ¶ 85.) Plaintiff asserts

that “Driveway reported to credit agencies that [he] had defaulted on his loan and that his car had

been repossessed,” and that his credit rating therefore fell from “over 780 to approximately 609.”

(Id. ¶ 86.)

Plaintiff appeared with his attorney Jason Seidman at numerous court proceedings

regarding his criminal case. (Id. ¶¶ 90-91.) Consistently maintaining his innocence, Plaintiff

rejected multiple plea offers extended by the Middlesex County Prosecutor’s Office. (Id. ¶¶ 94-

97.) Plaintiff asserts that the Middlesex County Prosecutor’s Office did not disclose exculpatory

evidence in its possession to Plaintiff or his counsel. (Id. ¶ 100.) The criminal case against Plaintiff

was dismissed on February 1, 2024, and expunged from the record on February 8, 2024. (Id. ¶¶

101, 103.) After the charges were expunged from the record, Plaintiff retrieved his wallet, keys,

phones, and handgun and accessories from the PAPD. (Id. ¶ 104.) However, Plaintiff was unable

to retrieve his Rolex watch, and the property clerk instructed him “to contact Internal Affairs

regarding his missing watch[.]” (Id.) Through counsel, Plaintiff subsequently contacted Internal

Affairs regarding the missing watch, and, as of July 11, 2024, was informed that the investigation

into its whereabouts was ongoing. (Id. ¶ 109.)

While Plaintiff was without his personal property during the pendency of his criminal case,

he “was unable to carry out his professional or familial duties – including coordinating and

carrying out home renovations; communicating with lenders, real estate brokers, and laborers; and

driving his children to and from school and activities.” (Id. ¶ 72.) Plaintiff asserts that without his

vehicle, he “was unable to work” and “had to spend excessively on rental cars and, ultimately, a

new vehicle[.]” (Id. ¶ 84.) Plaintiff alleges that the reduction of his credit rating rendered him

“unable to borrow funds from the lenders and at the terms he was previously able to.” (Id. ¶ 87.)

Plaintiff could not “obtain the necessary and planned financing to complete the renovation project

he had in progress” at the time of his arrest. (Id.) After a delay, Plaintiff “had to borrow money

from family members, deplete savings, and max out credit cards” to finish the project “at a

significant financial and personal cost[.]” (Id.)

Plaintiff filed a Notice of Claim on April 11, 2024 “with the Office of the New Jersey

Attorney General, the Office of the Middlesex County Counsel, the Office of the Middlesex

County Prosecutor, and the Perth Amboy Police Department.” (Id. ¶ 110.) He filed this federal

suit on August 13, 2024. (See id.) Plaintiff’s Complaint brings federal claims for False Arrest in

violation of 42 U.S.C. § 1983 (“Section 1983”) (Count One); Malicious Prosecution in violation

of Section 1983 (Count Two); Selective Enforcement and False Arrest and Malicious Prosecution

Due to Race, Color, or National Origin, in violation of Section 1983 and 42 U.S.C. § 1981

(“Section 1981”) (Count Three); Denial of Second Amendment Rights in violation of Section 1983

(Count Four); additional violations of Section 1983 and of the Fourth, Fifth, Sixth, Eighth, and

Fourteenth Amendments to the U.S. Constitution (Count Five); Failure to Intercede in violation of

Section 1983 (Count Six); Civil Rights Conspiracy in violation of Section 1983 (Count Seven); a

supervisory liability claim (Count Eight); and two Monell claims in violation of Section 1983

(Counts Nine and Ten). (See id.) Plaintiff also asserts state law claims for Malicious Prosecution

(Count Eleven); violations of the New Jersey Civil Rights Act (Count Twelve); Intentional,

Reckless, or Negligent Infliction of Emotional Distress (Count Thirteen); Negligence (Count

Fourteen); and two respondeat superior claims (Counts Fifteen and Sixteen).1 (See id.)

Plaintiff seeks compensatory and punitive damages for his injuries, including “pain and

suffering…emotional distress…loss of property; legal expenses…restrictions on liberty; [and]

denial of his Constitutional right to bear arms[.]” (Id. ¶¶ 112-14.) Defendants filed the instant

motion to dismiss on October 18, 2024. (See Mot.) Plaintiff opposed the motion on December

18, 2024. (ECF 27,”Opposition” or “Opp.”) Defendants filed a reply brief in further support of

their motion on January 14, 2025. (ECF 30, “Reply.”) Plaintiff filed a supplemental brief opposing

the motion to dismiss on March 14, 2025. (ECF 36, “Supplemental Opposition” or “Supp. Opp.”)

Defendants replied to Plaintiff’s supplemental brief on March 21, 2025. (ECF 37, “Supplemental

Reply” or “Supp. Reply.”)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) permits a defendant to move to dismiss a

complaint for “failure to state a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6).

To withstand a motion to dismiss under Rule 12(b)(6), a plaintiff must allege “enough facts to state

1 Plaintiff’s Complaint mislabels the state law counts as Count Nine through Count Fourteen, even

though they are the eleventh through sixteenth counts of the Complaint. For the purposes of this

opinion, the Court will refer to these counts as Counts Eleven through Sixteen.

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). A complaint is plausible on its face when there is enough 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). “Although the plausibility standard does not impose

a probability requirement, it does require a pleading to show more than a sheer possibility that a

defendant has acted unlawfully.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016)

(internal quotation marks and citations omitted). As a result, a plaintiff must “allege sufficient

facts to raise a reasonable expectation that discovery will uncover proof of [his] claims.” Id. at

789.

In evaluating the sufficiency of a complaint, a district court must accept all factual

allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). The court, however, is “not

compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions

disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). If,

after viewing the allegations in the complaint most favorably to the plaintiff, it appears that no

relief could be granted under any set of facts consistent with the allegations, a court may dismiss

the complaint for failure to state a claim. DeFazio v. Leading Edge Recovery Sols., No. 10-02945,

2010 WL 5146765, at *1 (D.N.J. Dec. 13, 2010).

III. LEGAL ANALYSIS

a. Qualified Immunity

Defendants contend that the doctrine of qualified immunity grants them immunity from

Plaintiff’s suit because, in their view, Defendants had sufficient probable cause to arrest Bellinger.

(Mot. at 7-9; Reply at 2-4.) Plaintiff argues that qualified immunity does not shield Defendants

because they arrested him without probable cause, in violation of his clearly established

constitutional rights. (Opp. at 11-13.) “Under our precedents, officers are entitled to qualified

immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2)

the unlawfulness of their conduct was ‘clearly established at the time.’” District of Columbia v.

Wesby, 583 U.S. 48, 62-63 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).

“Under settled law, [Defendants] are entitled to immunity if a reasonable officer could have

believed that probable cause existed. . . . Probable cause existed if ‘at the moment the arrest was

made . . . the facts and circumstances within their knowledge and of which they had reasonably

trustworthy information were sufficient to warrant a prudent man in believing’ that” Plaintiff had

taken part in a narcotics transaction. Hunter v. Bryant, 502 U.S. 224, 228 (1991) (quoting Beck v.

Ohio, 379 U.S. 89, 91 (1964)).

Here, Plaintiff has sufficiently alleged that Defendants violated his clearly established

constitutional rights (namely, his Fourth Amendment rights to freedom from unlawful arrest,

search, and seizure, and his Fifth and Fourteenth Amendment rights to due process) by arresting

him without probable cause. As the basis for their arrest of Plaintiff, Defendants cite apparently

false, unverified, uncorroborated “real time information” provided by Defendant Lt. Jimenez that

a “Black Audi SUV and a Silver Subaru” had been involved in drug deals in the area. (See e.g.,

Compl. Ex. 7.) This falls well short of the “reasonably trustworthy information” standard for

probable cause articulated in the case law. The other bases Defendants assert in support of their

argument for the presence of probable cause, such as Plaintiff’s driving behavior (which, notably

did not include speeding, driving erratically, or otherwise driving unlawfully) and the fact that the

officers saw the two men engaging in a conversation, are effectively “mere hunches” that do not

“create a reasonable suspicion” that unlawful activity warranting a stop, search, and arrest had

taken place. Prado Navarette v. California, 572 U.S. 393, 397 (2014).

As such, the Court finds that qualified immunity does not apply to shield Defendants from

Plaintiff’s suit.

b. Count 1: 42 U.S.C. § 1983 (False Arrest)

Defendants argue that Count 1 of the Complaint must be dismissed because it “fails to state

a claim.” (Mot. at 9-10; Reply at 6.) The elements of a false-arrest claim are (a) that an arrest

occurred; and (b) that the arrest was made without probable cause. Brown v. Makofka, 644 F.

App'x 139, 143 (3d Cir. 2016) (quoting See Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d

Cir.1995)). The proper inquiry in a claim for false arrest under § 1983 is “not whether the person

arrested in fact committed the offense, but whether the arresting officers had probable cause to

believe the person arrested had committed the offense.” Shelley v. Wilson, 152 F. App’x 126, 129

(3d Cir. 2005) (quoting Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir.1988)). A

“federal false-arrest claim under § 1983 fails [when] the officers certainly had probable cause to

believe [the person arrested] had violated” the law. Makofka, 644 Fed. App’x at 143. Probable

cause exists whenever reasonably trustworthy information or circumstances within a police

officer’s knowledge are sufficient to warrant a person of reasonable caution to conclude that an

offense has been committed by the person being arrested. United States v. Myers, 308 F.3d 251,

255 (3d Cir. 2002). “Whether probable cause existed for an arrest is generally a question of fact

for the jury[,]” but where “the court finds that the evidence, viewed in the light most favorable to

the plaintiff, reasonably would not support a contrary factual finding, then the court may conclude

that probable cause exists as a matter of law. Id. at 788–89; see also Basile v. Twp. of Smith, 752

F. Supp. 2d 643, 651 (W.D. Pa. 2010).

Here, Plaintiff sufficiently alleges that he was arrested without probable cause. The parties

do not dispute that Plaintiff was arrested, and as discussed supra, Plaintiff plausibly states that the

traffic stop that led to his arrest was predicated on unreliable information and mere hunches

insufficient to support an inference of a reasonable suspicion of criminal activity, let alone

probable cause for his arrest. (Compl. ¶¶ 115-121.) At this stage, the pleadings render the Court

unable to find that Defendants had probable cause to arrest Plaintiff; further factual is required to

make that determination. Accordingly, the Motion is hereby DENIED as to Count 1.

c. Count 2: 42 USC §1983 (Malicious Prosecution)

Defendants argue that Count 2 of the Complaint must be dismissed because they had

probable cause to arrest Bellinger. (Mot. at 10.) To establish a claim of malicious prosecution, a

plaintiff must show:

(1) the defendants initiated a criminal proceeding;

(2) the criminal proceeding ended in [the] plaintiff’s 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 a deprivation of liberty consistent with the concept of seizure as a

consequence of a legal proceeding.

Lozano v. New Jersey, 9 F.4th 239, 247 (3d Cir. 2021) (quoting Harvard v. Cesnalis, 973 F.3d

190, 203 (3d Cir. 2020)).

Here again, Plaintiff has sufficiently stated a claim. The parties do not dispute that

Defendants initiated a criminal proceeding against criminal proceeding against Plaintiff by

arresting him and charging him with various offenses. Nor do they dispute that the proceeding

ended in Plaintiff’s favor, as the charges against him were dropped and expunged from the record.

(Compl. ¶¶ 101, 103.) Finally, neither side disputes that Plaintiff suffered a seizure and deprivation

of liberty as a consequence of the legal proceedings against him; the parties only dispute whether

the initiation of the proceedings were supported by probable cause and done maliciously or for a

purpose other than bringing the plaintiff to justice.

Again, as discussed supra, Plaintiff has sufficiently alleged that Defendants lacked

probable cause to carry out the initial arrest, which led to the beginning of the legal proceedings

against Plaintiff. Plaintiff has also sufficiently alleged that Defendants acted for a purpose other

than bringing him to justice insofar as they allegedly “fabricated evidence and intentionally

withheld from and misrepresented to prosecutors exculpatory facts that vitiated probable cause

against Mr. Bellinger.” (Id. ¶ 124.) Accordingly, the Motion is hereby DENIED as to Count 2.

d. Count 3: 42 U.S.C. §§ 1983 and 1981 Selective Enforcement and False

Arrest and Malicious Prosecution Due to Race/Color/National Origin

As a threshold matter, 42 U.S.C. § 1981 “does not provide a private right of action against

state actors.” Goodall-Gaillard v. N.J. Dep't of Corr., 625 F. App’x 123, 128 (3d Cir. 2015) (citing

McGovern v. City of Phila., 554 F.3d 114, 120–21 (3d Cir. 2009)). To the extent that Plaintiff’s

claim in Count 3 sounds under this statute, it is dismissed as improper.

Conversely, 42 U.S.C. § 1983 does provide a private right of action against state actors.

To state a claim for selective enforcement, “a plaintiff must establish (1) that other similarly

situated violators of [an] ordinance or law were treated differently, and (2) that this disparate

treatment was based on an unjustifiable standard, such as race, or religion, or some other arbitrary

factor.” Goodall-Gaillard, 625 Fed. App’x at 127 (internal quotations omitted). Selective

enforcement of, and selective prosecution under, facially neutral laws “may constitute illegal

discrimination even if the [enforcement or] prosecution is otherwise warranted” where the

differential treatment is based upon an improper, discriminatory motive. Desi’s Pizza, Inc. v. City

of Wilkes–Barre, 321 F.3d 411, 425 (3d Cir.2003) (“Desi’s Pizza I ”). While a plaintiff must

“provide evidence of discriminatory purpose, not mere unequal treatment or adverse effect,” id.,

it need not be explicit; “[n]ecessarily, an invidious discriminatory purpose may often be inferred

from the totality of the relevant facts.” Muhammad ex rel. J.S. v. Abington Twp. Police Dep't, 37

F. Supp. 3d 746, 752–53 (E.D. Pa. 2014) (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)).

Here, Plaintiff’s claim fails because his pleading does not satisfy the first prong requiring

him to establish that others were treated differently. In the Complaint, Plaintiff points to numerous

prior cases involving similar circumstances and outcomes of alleged mistreatment by PAPD.

(Compl. ¶¶ 28-30.) Nowhere in the Complaint, however, does Plaintiff make reference to

instances involving similar circumstances and different outcomes sufficient to allege that his

treatment in this case rises to the level of selective enforcement. Because Plaintiff fails the first

prong of the selective enforcement analysis, the Court need not address the second prong.

Accordingly, the Motion is hereby GRANTED as to Count 3, and Count 3 is dismissed without

prejudice.

e. Count 4: 42 U.S.C. § 1983 Denial of Second Amendment Rights

In his Opposition, Plaintiff voluntarily dismissed Count 4 of the Complaint, because he

conceded that “the City of Perth Amboy is the proper defendant for any claims brought against the

Perth Amboy Police Department and Chief Cattano, as both defendants act as arms or agents of

the City.” (Opp. at 1, n. 1) (citing Padilla v. Twp. of Cherry Hill, 110 F. App’x 272, 278 (3d Cir.

2004); Janowsky v. City of North Wildwood, 259 F. Supp. 3d 113, 131 (D.N.J. 2017).) As such,

Plaintiff’s voluntary dismissal is hereby GRANTED as to Count 4, and Count 4 is dismissed

without prejudice.

f. Count 5: 42 U.S.C. § 1983 Unreasonable Seizure Under the Fourth

Amendment, Denial of Due Process Under the Fifth, Sixth, and Fourteenth

Amendments, and Denial of Right to be Free of Excessive Fines Under the

Eighth Amendment.

Defendants argue that Count 5 should be dismissed because it is an improperly compound

group pleading that fails to state a claim and is barred by qualified immunity. “By its plain

language, the Excessive Fines Clause of the Eighth Amendment is violated only if the disputed

fees are both “fines” and “excessive.” Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 420

(3d Cir. 2000). The term “fine” refers to punishment for a criminal offense. Id. “In assessing an

excessive fine challenge, the Court engages in a two-step inquiry: (1) whether a ‘fine’ is at issue—

that is, whether the government, acting with punitive intent, has operated to ‘extract [a] payment[

]’ in case or in kind from a citizen; and (2) if so, whether that fine is excessive, or grossly

disproportionate to the gravity of the offense.” Singh v. Droppa, 2024 WL 726643, at *3 (D.N.J.

Feb. 22, 2024) (quoting Dailey v. City of Philadelphia, 819 F. App’x 71, 75 (3d Cir. 2020))

(internal quotations omitted).

Here, the Court need not reach the questions of whether the Plaintiff’s forfeitures amounted

to fines, and whether those fine were excessive, because the Court agrees with Defendants that

Count 5 is an improperly compound pleading that attempts to amalgamate several distinct causes

of action into one unwieldy claim that violates the rules of pleading articulated in Federal Rules

of Civil Procedure 8, 10, and 12. Bartol v. Barrowclough, 251 F. Supp. 3d 855, 859 (E.D. Pa.

2017). Accordingly, the Motion is hereby GRANTED as to Count 5, and Count 5 is dismissed

without prejudice.

g. Count 6: 42 U.S.C. § 1983 (Failure to Intercede)

Defendants argue that Count 6 should be dismissed because “Plaintiff fails to identify the

moments at which a constitutional violation was taking place, that each Defendant was even

present at that moment, and how under the circumstances any officer had a realistic and reasonable

opportunity to intervene but did not. (Mot. at 15, citing White v. City of Vineland, 500 F. Supp.

3d 295, 305-06 (D.N.J. 2020) (internal quotations and punctuation omitted).)

To establish a claim for failure to intercede or intervene under § 1983, a plaintiff must

demonstrate “that his underlying constitutional rights were violated, that the officer had a duty to

intervene, and that the officer must have had a realistic and reasonable opportunity to intervene.”

White v. City of Vineland, 500 F. Supp. 3d 295, 305-06 (D.N.J. 2020) (citing Smith v. Mensinger,

293 F.3d 641, 650-51 (3d Cir. 2002)); see also Callaway v. Small, 576 F. Supp. 3d 232 (D.N.J.

2021) (“a police officer may be held liable under § 1983 [on a failure to intervene or intercede

theory] where the officer (1) knows of and acquiesces to (2) the unconstitutional treatment of

another in his presence, and (3) fails or refuses to intervene despite having a realistic and

reasonable opportunity to intervene”).

Here, Plaintiff does not sufficiently allege that any officer had a realistic and reasonable

opportunity to intercede in the initial arrest that formed the basis of all subsequent actions by law

enforcement against Plaintiff in this case. The Court agrees with Defendants that they did not have

the requisite “actual knowledge and acquiescence” necessary to trigger the duty to intervene.

Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). Accordingly, the Motion is hereby

GRANTED as to Count 6, and Count 6 is dismissed without prejudice.

h. Count 7: 42 U.S.C. § 1983 Civil Rights Conspiracy

Defendants contend that Count 7 should be dismissed because he does not adequately plead

the elements of a conspiracy. (Mot. at 15-16.) A civil conspiracy under Section 1983 exists where

“two or more persons conspire to deprive a person of constitutional rights, one or more of the

conspirators performs any overt act in furtherance of the conspiracy, and the overt act injures the

plaintiff or deprives him of any rights or privileges of a citizen of the United States while the

conspirators acted under color of state law.” Lankford v. City of Clifton Police Dep't, 546 F. Supp.

3d 296, 317 (D.N.J. 2021) (citing Barnes Foundation v. Twp. of Lower Merion, 242 F.3d 151, 162

(3d Cir. 2001)). To state such a claim, “a plaintiff must show the existence of a conspiracy and a

deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy,” as well as

“the period of the conspiracy, the object of the conspiracy, and certain overt acts of the alleged

conspirators taken to achieve that purpose.” Lankford, 546 F. Supp. 3d at 317. Further, “[a] 1983

claim for civil-rights conspiracy must show an understanding or ‘meeting of the minds.’” Murphy

v. Middlesex Cnty., 361 F. Supp. 3d 376, 389 (D.N.J. 2019) (citing Startzell v. City of Philadelphia,

533 F.3d 183, 205 (3d Cir. 2008)).

Here, the Court agrees with Defendants that Plaintiff has not adequately alleged a civil

conspiracy, as he has not pleaded facts sufficient to establish the contours of the conspiracy—the

period, the object, and the agreement or meeting of minds. Instead, Plaintiff relies on his previous

well-pleaded claims to set the Court up for an inferential leap between the alleged conduct and the

thinly supported notion that this incident resulted from a conspiracy. The Court is not inclined to

make such a leap. Accordingly, the Motion is hereby GRANTED as to Count 7, and Count 7 is

dismissed without prejudice.

i. Count 8: 42 U.S.C. § 1983 Supervisory Liability

Defendants argue that Count 8 must be dismissed because it targets the wrong Defendants

and fails to state a claim for relief.

In general, vicarious liability does not apply to § 1983 actions. See Ashcroft v. Iqbal, 556

U.S. 662, 676 (2009) (“vicarious liability is inapplicable to…§ 1983 suits”). However, supervisors

can potentially be held liable under § 1983 where they engage in “affirmative conduct,” such as

the “implementation or maintenance of a policy, practice, or custom that caused the plaintiff

constitutional harm.” Murphy v. Middlesex Cnty., 361 F. Supp. 3d 376, 387 (D.N.J. 2019) (citing

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 generally two theories of supervisory liability under §

1983. Murphy 361 F. Supp. 3d at 387. “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.” Id. (internal quotation marks omitted) (quoting Stoneking v. Bradford Area Sch. Dist., 882

F.2d 720, 725 (3d Cir. 1989)). “Moreover, [w]here 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.” Janowski v. City of N. Wildwood, 259 F. Supp. 3d 113, 128 (D.N.J. 2017) (quoting

Thomas v. Cumberland Cnty., 749 F.3d 217, 222 (3d Cir. 2014)). “[D]eliberate indifference is a

stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious

consequence of his action.” Id. (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)). “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 his subordinates' violations.” Murphy, 361 F. Supp.

3d at 387 (citing Baker v. Monroe Township, 50 F.3d 1186, 1190–91 (3d Cir. 1995)). Knowledge

in the context of the second theory of liability “must consist of either ‘contemporaneous knowledge

of the offending incident or knowledge of a prior pattern of similar incidents.’” Murphy, 361 F.

Supp. 3d at 387 (quoting C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 202 (3d Cir. 2000)).

Here, Plaintiff seeks to invoke the first theory of liability, claiming “Defendants Cattano

and Jimenez and other supervisors acted with gross negligence, recklessness, and/or deliberate

indifference to the constitutional rights of citizens by failing to provide adequate training,

supervision, and discipline of the defendant police officers, and thereby caused the individual

defendant police officers to deprive Christopher C. Bellinger III of his clearly established

constitutional rights.” (Compl. ¶ 160.) Plaintiff fails to establish how Defendants Cattano and

Jimenez maintained a policy that amounted to deliberate indifference. To be sure, Plaintiff does

sufficiently allege that Lt. Jimenez himself acted unlawfully by allegedly fabricating the basis of

the probable cause for his arrests, but this claim does not establish that Defendants were engaged

in a broader policy of unlawful or deliberate indifference. Accordingly, the Motion is hereby

GRANTED as to Count 8, and Count 8 is dismissed without prejudice.

j. Counts 9 & 10: 42 U.S.C. § 1983 Monell Claims

Defendants argue that Counts 9 and 10 against the City of Perth Amboy should be

dismissed because they fail to support any allegations that the city maintained unlawful practices

or customs within the PAPD. (Mot. at 17-21.)

A Section 1983 claim against a municipality cannot be predicated on a respondeat superior

theory. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978) (“a municipality cannot be

held liable under § 1983 on a respondeat superior theory”). Instead, a municipality “may be sued

under § 1983 only for acts implementing an official policy, practice or custom.” Losch v. Borough

of Parkesburg, Pa., 736 F.2d 903 (3d Cir. 1984); see also Monell, 436 U.S. at 694 (“[I]t is 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 that the government

as an entity is responsible under § 1983.”). “Policy is made when a decisionmaker possess[ing]

final authority to establish municipal policy with respect to the action issues an official

proclamation, policy, or edict.” Est. of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019)

(quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). “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.”

Est. of Roman, 914 F.3d at 798 (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)).

Once a plaintiff identifies the policy or custom that led to his or her injury, he or she “must show

that an official who has the power to make policy is responsible for either the affirmative

proclamation of a policy or acquiescence in a well-settled custom.” Bielevicz, 915 F.2d at 850

(citing Andrews, 895 F.2d at 1480). “A plaintiff must also allege that the policy or custom was

the ‘proximate cause’ of his injuries…by demonstrating an ‘affirmative link’ between the policy

or custom and the particular constitutional violation he alleges.” Est. of Roman, 914 F.3d at 798

(citations omitted). Where a Monell claim against a municipality is predicated on a custom, a

plaintiff may establish the existence of said custom and causation by showing that “policymakers

were aware of similar unlawful conduct in the past, but failed to take precautions against future

violations, and that this failure, at least in part, led to their injury.” Bielevicz, 915 F.2d at 851.

Additionally, “[p]roof of a single incident of unconstitutional activity is not sufficient to impose

liability under Monell, unless proof of the incident includes proof that it was caused by an

existing...municipal policy, which policy can be attributed to a municipal policymaker.” Brown v.

City of Pittsburgh, 586 F.3d 263, 292 (3d Cir. 2009) (quoting City of Oklahoma City v. Tuttle, 471

U.S. 808, 823–24 (1985) (plurality opinion)).

Here, Plaintiff has not pleaded facts sufficient to show that the City of Perth Amboy either

issued any official statements condoning the behavior of the PAPD, or that this incident is part of

a pattern of similar incidents such that Plaintiff can demonstrate the existence of a custom. Plaintiff

points to several other cases with somewhat similar facts, but is not able to show that an existing

municipal policy is the throughline between those claims and this one. (Compl. ¶¶ 28-30.)

Accordingly, the Motion is hereby GRANTED as to Counts 9 and 10, and Counts 9 and 10 are

dismissed without prejudice.

a. New Jersey Common Law Tort Claims: Count 11 (Malicious Prosecution),

Count 13 (Intentional, Reckless, or Negligent Infliction of Emotional

Distress), Count 14 (State Law Negligence), Counts 15 & 16 (Respondeat

Superior)

Plaintiff asserts several claims sounding in common law tort against the individual

defendants, Defendant Cattano, and the City of Perth Amboy. Defendants argue that these claims

should be dismissed because they do not requirements established by the New Jersey Tort Claims

Act (“NJTCA”), N.J.S.A. 59:1-1 et seq. At the outset, the Court agrees with Defendants that all

tort claims against the City are barred because Plaintiff failed to properly serve the City with a

notice of claim. See N.J. Stat. Ann. § 59:8-7 (“A claim for injury or damages arising under this

act against a local public entity shall be filed with that entity.”). “The Legislature required that the

notice of claim be filed directly with the specific local entity at issue.” McDade v. Siazon, 208 N.J.

463, 476 (N.J. 2011). “The city is a distinct local public entity.” Madej v. Doe, 477 A.2d 439,

444 (N.J. Super. Ct. Law Div. 1984). Plaintiff served the notice on the PAPD, the Office of the

Attorney General, the Middlesex County Counsel, and the Middlesex County Prosecutor, but not

on the City itself. As such, Plaintiff must be barred from asserting these tort claims against the

City. Accordingly, the Motion is hereby GRANTED as to Counts 15 and 16, and those Counts

are dismissed with prejudice.2

Furthermore, the NJTCA is clear that “no damages shall be awarded against a public entity

or public employee for pain and suffering resulting from any injury.” N.J. Stat. Ann. 59:9-2(d)(1).

2 Dismissal with prejudice is appropriate here because the New Jersey Tort Claims Act prevents

Plaintiff from ever asserting these claims again. N.J.S.A. 59:1-1 et seq.

Accordingly, the Motion is hereby GRANTED as to Count 13, and Count 13 is dismissed with

prejudice.

Defendants claim that the New Jersey common law malicious prosecution claim is time

barred because they assert that the time to notify Defendants of the claim began to accrue on the

date of Bellinger’s arrest. (Supp. Reply at 1-4.) The Court disagrees. As Plaintiff notes,

“Plaintiff’s state law claims arise from malicious prosecution, which accrues upon the favorable

termination of the criminal case.” (Supp. Opp. at 1, citing Thompson v. Clark, 596 U.S. 36, 39

(2022); Coello v. DiLeo, 43 F.4th 346, 354-55 (3d Cir. 2022).) Plaintiff’s notice of claim was thus

timely and sufficiently described the claimed injury, providing sufficient notice to the individual

Defendants.

As with the federal malicious prosecution claim, Defendants claim Plaintiff’s malicious

prosecution claim under New Jersey common law must be dismissed because Plaintiff failed to

state a claim. To state a malicious prosecution claim under Section 1983, the NJCRA, and the

common law, a plaintiff must plead that (1) defendants initiated a criminal proceeding; (2) the

criminal proceeding ended in plaintiff’s favor; (3) the proceeding was initiated without probable

cause; and (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff

to justice. See Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009), abrogated on other grounds

by Thompson v. Clark, 596 U.S. 36 (2022) (quoting Estate of Smith v. Marasco, 318 F.3d 497, 521

(3d Cir. 2003)) (setting forth elements for a Section 1983 malicious prosecution claim); Waselik

v. Twp. of Sparta, No. 16-4969, 2017 WL 2213148, at *8 n.15 (stating that a malicious prosecution

claim under the NJCRA is construed in parallel to a Section 1983 claim); Frost v. Cnty. of

Monmouth, No. 17-4395, 2018 WL 1469055, at *9 (D.N.J. Mar. 26, 2018) (setting forth elements

of common law malicious prosecution claim). Because this analytical framework mirrors that of

the federal malicious prosecution claim, the Court adopts its analysis in the section on malicious

prosecution supra to find that Plaintiff has plausibly stated a claim for malicious prosecution under

New Jersey law. Accordingly, the Motion is hereby DENIED as to Count 11.

As pleaded in paragraphs 187-192 of the Complaint, Plaintiff’s state law negligence claim

arises from the date of his initial arrest, not the date of the resolution of his criminal proceedings

as is the case with his state law malicious prosecution claim. As such, Plaintiff’s state law

negligence claim is barred because he failed to provide timely notice of the claim to Defendants

under the NJTCA. Accordingly, the Motion is hereby GRANTED as to Count 14, and Count 14

is dismissed with prejudice.

b. Count Twelve - New Jersey Civil Rights Act

The NJCRA “is a state law corollary to 42 U.S.C. § 1983—it creates a private right of

action for the violation of civil rights secured under the New Jersey Constitution.” Armstrong v.

Sherman, No. 09-716, 2010 WL 2483911, at *5 (D.N.J. June 4, 2010). For this reason, “[t]his

district has repeatedly interpreted NJCRA analogously to § 1983.” Trafton v. City of Woodbury,

799 F. Supp. 2d 417, 443 (D.N.J. 2011) (collecting cases). Thus, “the Court will analyze Plaintiffs’

NJCRA claims through the lens of § 1983.” Id.; see also Norcross v. Town of Hammonton, No.

04-2536, 2008 WL 9027248, at *4 (D.N.J. Feb. 5, 2008) (“This Court sees no reason to conclude

that in the context of a claim for excessive force during an arrest, the standard under the New

Jersey Constitution for evaluating those claims is different from that under the United States

Constitution.” (citations omitted)).

Accordingly, for the reasons outlined in the section supra addressing Plaintiff’s false arrest

claim under Section 1983, the Motion is hereby DENIED as to Count 12.

IV. CONCLUSION

For the reasons set forth herein, Defendants’ Motion to Dismiss is GRANTED in part

and DENIED in part. An appropriate Order follows

/s/ Jamel K. Semper .

HON. JAMEL K. SEMPER

United States District Judge

Orig: Clerk

cc: Cathy L Waldor, U.S.M.J.

Parties