# BELLINGER v. THE CITY OF PERTH AMBOY

> District Court, D. New Jersey · June 30, 2025

URL: https://www.frixlaw.com/law-library/cases/11087346

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** June 30, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11087346. Public record. Not legal advice.