“Brown fails to specify the actual policy, practice, or custom and instead makes an unsupported assertion.”
How later courts described this case
- “Brown fails to specify the actual policy, practice, or custom and instead makes an unsupported assertion.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DANIEL COURNEY,
No. 22-cv-05181 (MEF)(AME)
Plaintiff,
OPINION and ORDER
v.
CITY OF ENGLEWOOD et al.,
Defendants.
For the purposes of this brief Opinion and Order, the Court
assumes familiarity with the allegations and procedural history
of this case.
* * *
After being arrested and jailed by local police, the Plaintiff
sued the City of Englewood and the Englewood City Council (the
“Defendants”) under (1) 42 U.S.C. § 1983 and (2) the New Jersey
Civil Rights Act, N.J.S.A. § 10:6-2.1 See Second Amended
Complaint (“Complaint”) (ECF 21) at 1, ¶ 33.2
The two cited statutory provisions are interpreted identically.
See Tucker v. City of Phila., 679 F. Supp. 3d 127, 137 (D.N.J.
2023) (citing cases).
Therefore, the Court considers them together here.
* * *
1 He has also sued a number of police officers. They are not
considered here.
2 In a freestanding Count VI, the Plaintiff also seeks costs
under 42 U.S.C. § 1988, see Complaint ¶ 81, a provision that the
Third Circuit has said does not create an independent cause of
action. See Tunstall v. Off. of Jud. Support of Ct. of Common
Pleas of Del. Cnty., 820 F.2d 631, 633 (3d Cir. 1987).
A plaintiff cannot hold a municipal defendant liable under a
theory of simple respondeat superior or vicarious liability.
See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S.
658, 691–92 (1978).3
Instead, he must point to an unconstitutional municipal policy
or custom, or a municipal failure or inadequacy that reflects a
deliberate or conscious choice. See Forrest v. Parry, 930 F.3d
93, 105 (3d Cir. 2019).
Here, the Plaintiff bases his claims on municipal policy and
custom. See Complaint ¶¶ 43, 62, 72–77.
But he does not allege facts that meaningfully back up those
allegations.
To allege an unconstitutional policy, a plaintiff “must point to
an official proclamation, policy or edict by a decisionmaker
possessing final authority to establish municipal policy on the
relevant subject.” Forrest, 930 F.3d at 105.
And to allege an unconstitutional custom, he “must evince a
given course of conduct so well-settled and permanent as to
virtually constitute law.” Id. This may take the form, for
example, of a statistical analysis of similar lawsuits against a
municipality, see Simpson v. Ferry, 202 F. Supp. 3d 444, 453
(E.D. Pa. 2016), or specific references to multiple incidents
that suggest a particular custom. See Harris v. City of Phila.,
171 F. Supp. 3d 395, 401–02 (E.D. Pa. 2016).
But there is nothing like that here.
3 Section 1983 applies to “persons” only. See Monell, 436 U.S.
at 690. It is not clear that a city council is a “person,” and
the weight of authority suggests that it is not. See Cellco
P’ship v. City of Rochester, 719 F. Supp. 3d 256, 259 n.1
(W.D.N.Y. 2024); Workman v. Kernell, 2018 WL 4845830, at *2
(D.S.C. Apr. 26, 2018), report and recommendation adopted as
modified, 2018 WL 4826535 (D.S.C. Oct. 2, 2018), aff’d sub nom.
Workman v. Bodiford, 766 F. App’x 1 (4th Cir. 2019); Skyway
Towers LLC v. City of S.A., 2014 WL 3512837, at *6 (W.D. Tex.
July 14, 2014). The question may perhaps turn on state law.
See Bonilla v. City Council of City of Chi., 809 F. Supp. 590,
600 (N.D. Ill. 1992); cf. Hernandez v. Twp. of Lyndhurst, 765 F.
Supp. 3d 401, 409-12 (D.N.J. 2025). Because the parties have
not briefed this question, the Court decides the motion on other
grounds.
The Plaintiff’s allegations about the Defendants’ policies are
conclusory. See Complaint ¶¶ 59–60, 62, 65, 67, 76.
For example, the Plaintiff alleges that the “Defendants’
policies and practice of restricting Plaintiff[’]s speech on its
religious content and viewpoint selectively impose a burden on
expression based upon its religious nature.” Id. ¶ 60.
But in that paragraph and elsewhere, the Plaintiff does not
provide any specifics. He does not elaborate on what the
Defendants’ “policies and practice[s]” were or provide even
somewhat granular information as to how they have been applied
to him.
The Plaintiff does say that police officers employed by the
Defendants were aware of his expressive rights but nonetheless
charged him “to prevent him from street preaching.” Id. ¶ 24.
But cities are not liable for all that their employees do. See
Monell, 436 U.S. at 691–92. At least not unless there is “proof
that [the act] was caused by an existing, unconstitutional
municipal policy, which policy can be attributed to a municipal
policymaker.” City of Okla. City v. Tuttle, 471 U.S. 808, 824
(1985) (plurality opinion).
There are no allegations along those lines here. Nothing
indicates that a municipal choice was in any way a moving force
behind the officers’ alleged acts. See Forrest, 930 F.3d at
105. The Complaint alleges only that the Defendants’ policy or
custom violated the Plaintiff’s rights.
That is not enough.
In McTernan v. City of York, for example, a plaintiff similarly
“fail[ed] to specify the relevant ‘custom’ or ‘policy.’” 564
F.3d 636, 658 (3d Cir. 2009). Instead, he merely alleged that
the city had a “policy of ignoring First Amendment rights.” Id.
That did not suffice to state a claim, the Third Circuit held.
Id.; accord, e.g., Brown v. SEPTA, 539 F. App’x 25, 28 (3d Cir.
2013) (“Brown fails to specify the actual policy, practice, or
custom and instead makes an unsupported assertion.”).
The allegations here are likewise too conclusory to survive the
Defendants’ motion to dismiss.
Accordingly, as to the City of Englewood and the Englewood City
Council, the motion to dismiss is granted.
IT IS on this 17th day of July, 2025, so ORDERED.
Michael FE. Farbiarz, U.S.D.J.