Estate of Adriano Roman, Jr. v. City of Newark

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 17-2302

________________

*THE ESTATE OF ADRIANO ROMAN, JR.,

Appellant

v.

CITY OF NEWARK;

CITY OF NEWARK POLICE DEPARTMENT;

ANTHONY CAMPOS, Chief of Police;

RODGER C. MENDES;

ALBANO FERREIRA; ONOFRE H. CABEZAS;

JOSEPH CUETO;

FNU RESSUREICAO; FNU GOLPE; JOYCE HILL,

Individually and in their capacity as police officers;

JOHN DOES 1-20, as fictitious names for presently unknown

agents member commissioners and chiefs

*(Amended pursuant to Clerk’s Order dated 1/25/18)

________________

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2-16-cv-01110)

District Judge: Honorable Susan D. Wigenton

________________

Argued June 12, 2018

Before: AMBRO, JORDAN, and

HARDIMAN, Circuit Judges

(Opinion filed: January 29, 2019)

Justin D. Santagata (Argued)

Kaufman Semeraro & Leibman

Two Executive Drive, Suite 530

Fort Lee, NJ 07024

Counsel for Appellant

Kenyatta K. Stewart, Acting Corporation Counsel

Wilson D. Antoine (Argued)

City of Newark–Department of Law

920 Broad Street, Room 316

Newark, NJ 07102

Counsel for Appellees

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OPINION OF THE COURT

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AMBRO, Circuit Judge

Newark police officers forcibly entered and searched

the apartment of Adriano Roman’s girlfriend. App. at 386,

391, 459, 486. They arrested Roman, who was present in the

apartment, after they found drugs in a common area that was

shared by multiple tenants. Id. at 399, 479. Though he was

imprisoned for over six months and indicted for various drug

2

offenses, the New Jersey Superior Court found the search to

be unlawful and the charges were dropped.

Roman now brings claims against the City of Newark

(which includes its Police Department) and various police

officers under 42 U.S.C. § 1983 (which gives a federal

remedy against state officials who, acting under color of state

law, deprive “any citizen of the United States . . . of any

rights, privileges, or immunities secured by the [U.S.]

Constitution and laws”) and New Jersey tort law. He alleges

the City had a pattern or practice of constitutional violations

and failed to train, supervise, and discipline its officers. He

also pleads an unlawful search claim against the officers and

contends they are liable for false imprisonment and malicious

prosecution. The District Court dismissed all of the claims

because they were inadequately pled. It also held the City did

not have an ongoing practice of unconstitutional searches and

arrests.

While most of Roman’s claims do not withstand

dismissal, his § 1983 claims against the City do. He has

adequately alleged that its Police Department had a custom of

warrantless searches and false arrests. He also sufficiently

pled that the Department failed to train, supervise, and

discipline its officers, specifically with respect to “the

requirements of [the] Fourth Amendment and related law.”

App. at 160. Because Roman has stated a plausible claim

against the City, we vacate and remand the District Court’s

holding on municipal liability. We affirm in all other

respects.

3

I. Background1

On May 2, 2014, Roman and his girlfriend Tiffany

Reyes were watching a movie in her apartment’s bedroom.

App. at 386, 389, 395. Unbeknownst to them, four Newark

police officers had set up surveillance outside of her building

because of complaints about narcotics activity. Id. at 338.

The officers heard an argument between a man and a woman,

id. at 340-42, and decided to enter Reyes’ apartment without

a warrant, id. at 491.

After they stepped inside the building, they discovered

that the front door of the apartment was locked. They also

1

As noted below, we must, while reviewing a ruling

on a motion to dismiss, view the facts in the light most

favorable to the plaintiff. Accordingly, without judging the

facts, we recount them as set out in the amended complaint

and the transcript of the suppression hearing referred to

below. Although Roman did not attach the transcript to the

amended complaint, the Defendants included it in their

motion to dismiss and told the District Court it was “capable

of judicial notice” and “integral to the [c]omplaint.” App. at

130. Thus we consider it at this stage.

In any event, both the amended complaint and

transcript note that the officers forcibly entered the apartment,

assaulted Roman, and falsely charged him with possession of

a controlled substance. See Am. Compl. ¶¶ 17, 22, 28. Any

minor differences in the two documents do not affect our

analysis of his municipal liability claim. See infra Section

III.A (explaining that the events leading up to Roman’s

search and arrest are not relevant to the merits of his

municipal liability claim).

4

noticed Melissa Isaksem, Reyes’ friend, walking inside the

building. Id. at 417-20. They stopped and questioned her.

Id. at 417, 419. When she told them she was visiting Reyes,

id. at 419, they ordered her to knock on the apartment door

for them and threatened to arrest her if she did not comply, id.

at 419-20. Isaksem led them to the apartment and stood

directly in front of the peephole. Id. at 421. The police stood

to her left, presumably out of the peephole’s range. Id. An

officer knocked on her behalf. Id. Reyes asked who was at

the door, and Isaksem announced her presence. Id.

Reyes opened the door, expecting to see only Isaksem.

Id. at 386, 400, 501. Instead, several officers rushed inside.

Id. at 387, 400, 501. They handcuffed Roman, Reyes, and

Isaksem, then demanded Roman “call someone to bring drugs

to the [apartment].” Am. Compl. ¶ 30 (internal quotation

marks omitted). If he did, they assured him they would

“‘make a deal’ and ‘let him go.’” Id. Roman refused the

officers’ demands, id. ¶ 33, and the police searched the

apartment. Eventually they found drugs in a common-area

space that was shared by multiple tenants and located in the

back of the apartment. App. at 399, 479. After seizing the

contraband, they yelled, “[W]e got you, motherfucker[;] . . .

you’re fucked now.” Id. at 427. Officer Rodger Mendes

walked back to Roman, “flipped him . . . on[]to his stomach

. . . , put his knee in his neck[,] and . . . said he was going to

get raped [in prison].” Id. at 428. Another officer informed

Roman’s father, who lived next door and observed parts of

the search, that his son “would go away for a long time.” Id.

at 454.

Roman was arrested and imprisoned on the same night.

The officers filed a criminal complaint against him for

possession of, as well as intent to distribute, heroin and

cocaine. A New Jersey grand jury returned a six-count

indictment against him for the same offenses.

5

In response, Roman moved to suppress the evidence

seized from the apartment. He argued the search was invalid

under the Fourth Amendment because the contraband was not

in plain view and thus a warrant was needed. The New Jersey

Superior Court agreed. It concluded the plain-view exception

did not apply and suppressed the contraband.

The State of New Jersey did not appeal the ruling and

instead moved to dismiss the case. The Superior Court

granted its motion in December 2014 and issued a final

judgment of dismissal. Roman was released from prison

during the same month.

Approximately a year later, Roman brought § 1983

and state-law tort claims against the City of Newark and

various police officers (for simplicity, the City and the

officers are jointly referred to as the “Defendants”). Among

other things, he alleged the City had a custom or policy of

unconstitutional searches, inadequate training, and poor

supervision and discipline.2 He also claimed the officers

unlawfully searched his apartment and were liable for the

torts of unlawful imprisonment and malicious prosecution.3

2

Roman’s amended complaint also included

allegations of discrimination of national origin in violation of

42 U.S.C. § 1983, civil conspiracy in violation of 42 U.S.C.

§ 1985, conspiracy to commit an unlawful search in violation

of the New Jersey Constitution and 42 U.S.C. § 1985, and

conspiracy to commit unlawful imprisonment in violation of

42 U.S.C. § 1985. We do not address these claims, as Roman

does not press them on appeal.

3

We construe Roman’s claim for unlawful

imprisonment as a claim for false imprisonment. Although

6

The Defendants responded with a motion to dismiss.

The District Court sided with them, dismissing the complaint

in its entirety. It first addressed Roman’s claim against the

City and concluded the complaint “fail[ed] to plead . . . a

custom or policy” of unlawful searches and a failure to train

or supervise officers. Roman v. City of Newark, Civil Action

No. 16-1110-SDW-LDW, 2017 WL 436251, at *4 (D.N.J.

Jan. 30, 2017). Although the complaint alleged “a pattern or

practice of constitutional violations in areas including stop[]

and arrest practices, use of force, and theft by officers,” the

Court did not consider that sufficient to state a claim. Id.

(internal quotation marks omitted) (quoting Compl. ¶ 59).

Instead, it viewed those practices as predating Roman’s arrest

and observed that “the imposition of a [f]ederal [m]onitor

indicate[d] [the City’s] attempts to change any wrongful

policies or practices.” Id.

The Court also held the unlawful search claim was

inadequately pled, as Roman did not “explain which

[Defendant(s)] committed the allegedly wrongful acts” during

the search and arrest. Id. Turning to the false imprisonment

and malicious prosecution claims, it construed them as state-

law claims and noted that plaintiffs must comply with the

New Jersey lacks a cause of action for “unlawful

imprisonment,” it has codified the elements of a false

imprisonment claim. See N.J. Stat. Ann. § 2C:13-3; Mallery

v. Erie R. Co., 92 A. 371, 371 (N.J. 1914) (“This appeal

brings up a judgment recovered by the respondent in an

action for false imprisonment. The declaration described

the unlawful imprisonment. . . .”); see also 8 American Law

of Torts § 27:1 (“False imprisonment, sometimes called

criminal restraint or unlawful imprisonment, is committed

when a defendant so restrains another person as to interfere

substantially with his liberty.”).

7

New Jersey Tort Claims Act before bringing them against

public entities. See N.J. Stat. Ann. § 59:8-1 et seq. Because

the “[c]omplaint nowhere allege[d]” Roman complied with

the Act’s procedures, the Court dismissed those claims as

well. Roman, 2017 WL 436251, at *6.

The Court’s dismissal was without prejudice, and it

granted Roman leave to amend. He did so by omitting his

tort claims and retaining his other allegations in almost

identical form. The Court dismissed his amended complaint

and reaffirmed its ruling on reconsideration. This appeal

followed.4

II. Jurisdiction and Standard of Review

The District Court had federal-question and

supplemental jurisdiction per 28 U.S.C. §§ 1331 and 1367(a),

respectively, and we have jurisdiction over its final orders

under 28 U.S.C. § 1291.

We review de novo its dismissal of a complaint under

Federal Rule of Civil Procedure 12(b)(6). See Phillips v.

County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008).

When conducting our review, “we accept all factual

allegations as true [and] construe the complaint in the light

most favorable to the plaintiff.” Warren Gen. Hosp. v.

Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (internal

quotation marks omitted). However, “we are not compelled

to accept unsupported conclusions and unwarranted

inferences . . . or a legal conclusion couched as a factual

allegation[.]” Baraka v. McGreevey, 481 F.3d 187, 195 (3d

4

Roman passed away while this appeal was pending,

and his estate brings the claims on his behalf. We do not

distinguish between Roman and his estate in this opinion.

8

Cir. 2007) (internal quotation marks omitted) (internal

citation omitted).

III. Discussion

A. Roman sufficiently pled a municipal liability

claim against Newark.

As noted, Roman alleges the City is liable under

§ 1983 because it “engaged in a pattern or practice of

constitutional violations,” “failed to properly train and/or

supervise” its police force, and “failed to properly and

adequately control and discipline” its police officers.5 Am.

Compl. ¶¶ 68, 73-74. Before discussing the merits of his

claims, Roman directs our attention to the types of documents

we may consider on a motion to dismiss. He contends we

may review three sources that were provided to the District

Court: an article published in the Newark Star Ledger (the

“Star Ledger article”), a press release issued by the U.S.

Attorney’s Office (the “press release”), and a consent decree

between the United States and the City of Newark (the

“consent decree”). The Star Ledger article and press release

were referenced in the amended complaint, see id. ¶¶ 68-69

(including hyperlinks to both), but the consent decree was

attached to the Defendants’ motion to dismiss, see App. at

129. Roman also asks us to look at one other document: the

Department of Justice’s Report on the investigation of the

Newark Police Department (the “DOJ Report”). Although he

5

Roman brings his municipal liability claims under

§ 1983 and the New Jersey Civil Rights Act, N.J. Stat. Ann.

§ 10:6-1 et seq. Because the latter “is interpreted analogously

to . . . § 1983,” we consider his New Jersey Civil Rights Act

claims along with his § 1983 claim. Coles v. Carlini, 162 F.

Supp. 3d 380, 404 (D.N.J. 2015).

9

acknowledges the DOJ Report was never provided to the

District Court, he now claims it is integral to the pleadings.

Though the Defendants dispute that we may consider

the DOJ Report, they add that we also cannot consider the

consent decree because “no relevant provisions of [it] . . .

were ever cited . . . to the District Court” and it is

inadmissible settlement material. Defendants’ Br. at 42.

They assert as well, without any citation to the record, that

Roman may not rely on the decree because he asked the

District Court to confine its analysis to the pleadings.

We disagree with the Defendants’ view of the consent

decree. Although we examine the “complaint, exhibits

attached to the complaint, [and] matters of public record,”

Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010), we can

also consider documents “that a defendant attaches as an

exhibit to a motion to dismiss,” Pension Benefits Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.

1993), if they are “undisputedly authentic” and “the

[plaintiff’s] claims are based [on them],” Mayer, 605 F.3d at

230. That holding extends to settlement material because

plaintiffs “need not provide admissible proof at th[e] [motion-

to-dismiss] stage.” In re OSG Sec. Litig., 12 F. Supp. 3d 619,

622 (S.D.N.Y. 2014); see also In re MyFord Touch Consumer

Litig., 46 F. Supp. 3d 936, 961 n.5 (N.D. Cal. 2014) (same).

Moreover, the Supreme Court has been clear about the scope

of our review, stating we “must consider the complaint in its

entirety, as well as other sources [we] ordinarily examine

when ruling on . . . motions to dismiss, in particular,

documents incorporated into the complaint by reference, and

matters of which a court may take judicial notice.” Tellabs,

Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)

(emphasis added).

10

Here, although the consent decree was not attached to

Roman’s amended complaint, we are free to review its

contents for three reasons.6 First, the Defendants attached the

decree to their motion to dismiss and affirmed that it is

“capable of judicial notice” as an indisputably authentic

government document. App. at 129. Second, contrary to the

dissent’s assertion, the Defendants themselves argued (and

correctly) before the District Court that Roman’s claims were

based on the consent decree. Compare Dissenting Op. at 5

(“What is crucial is whether Roman’s complaint was ‘based’

on the consent decree.”), with App. at 129 (filing from

Defendants characterizing the consent decree as “integral to

the Complaint”). Third, the amended complaint cited, and the

District Court discussed, the DOJ investigation and federal

monitor that eventually led to the consent decree. See

Roman, 2017 WL 436251, at *4; see also Am. Compl. ¶¶ 68-

71. Thus it was especially important for the Court to have

considered the decree as well, given that it provides essential

context to Roman’s claims. That it did not was an abuse of

discretion.

That said, we may not consider the DOJ Report at this

stage because it was not provided to the District Court in the

first instance by any party. Nor is it apparent that the Court

considered it sua sponte. See United States ex rel. Wilkins v.

6

Though the Defendants and our dissenting colleague

do not challenge the Star Ledger article or the press release,

we note that we consider them because they are referenced in

the amended complaint. See Tellabs, 551 U.S. at 322. As

Judge Jordan explains in his concurrence, however, Roman

does not need either document or the suppression hearing

transcript to state a municipal liability claim; the consent

decree gives his allegations enough plausibility to survive

dismissal.

11

United Health Grp., Inc., 659 F.3d 295, 302 (3d Cir. 2011)

(“Though we do not doubt the authenticity of

these documents, nevertheless we will not consider them

because the parties did not present them to the District Court

and we do not find any indication in the record that the Court

considered them on its own initiative.”). Hence it cannot

carry any weight in our analysis.

Turning to the amended complaint, Roman claims the

City is liable for his unlawful search because it “failed to train

its officers in the use of search and seizure techniques,

probable cause, and/or methods to properly obtain a search

warrant.” Am. Compl. ¶ 95. He alleges the Newark Police

Department “engaged in a pattern or practice of constitutional

violations” and asserts the Department of Justice appointed a

federal monitor to oversee the reforms to which the City

consented. Id. ¶ 68. His allegations also touch on the City’s

failure to “control and discipline” its police force, id. ¶ 74,

and failure to “investigate . . . instances of . . . police

misconduct,” id. ¶ 81. He characterizes the City’s practices in

these areas as “tantamount to a[n] [unconstitutional] custom

and/or policy,” id. ¶ 82, thus indicating its “deliberate

indifference to [its citizens’ constitutional] rights,” id. ¶ 83.

The Defendants respond that Roman has failed to

allege a municipal liability claim, as no part of the Star

Ledger article, press release, or consent decree references the

types of constitutional violations pled in the amended

complaint. They also contend the City had no notice “of any

pattern of constitutional violations with respect to forced

entry and searches of homes.” Defendants’ Br. at 50.

To plead a municipal liability claim, a plaintiff must

allege that “a [local] government’s policy or custom . . .

inflict[ed] the injury” in question. Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 694 (1978). “Policy is made when a

12

decisionmaker possess[ing] final authority to establish

municipal policy with respect to the action issues an official

proclamation, policy, or edict.” Andrews v. City of

Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (alteration

in original) (internal quotation marks omitted). “Custom, on

the other hand, can be proven by showing that a given course

of conduct, although not specifically endorsed or authorized

by law, is so well-settled and permanent as virtually to

constitute law.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d

Cir. 1990) (Becker, J.); see also Brown v. Muhlenberg Twp.,

269 F.3d 205, 215 (3d Cir. 2001) (“A custom . . . must have

the force of law by virtue of the persistent practices of state

[or municipal] officials.” (internal quotation marks omitted)).

Although a policy or custom is necessary to plead a

municipal claim, it is not sufficient to survive a motion to

dismiss. A plaintiff must also allege that the policy or custom

was the “proximate cause” of his injuries. See Kneipp v.

Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996). He may do so by

demonstrating an “affirmative link” between the policy or

custom and the particular constitutional violation he alleges.

Bielevicz, 915 F.2d at 850 (internal quotation marks omitted).

This is done for a custom if Roman demonstrates that Newark

had knowledge of “similar unlawful conduct in the past, . . .

failed to take precautions against future violations, and that

[its] failure, at least in part, led to [his] injury.” Id. at 851.

Despite these requirements, Roman does not need to identify

a responsible decisionmaker in his pleadings. See id. at 850.

Nor is he required to prove that the custom had the City’s

formal approval. See Anela v. City of Wildwood, 790 F.2d

1063, 1067 (3d Cir. 1986).

The pleading requirements are different for failure-to-

train claims because a plaintiff need not allege an

unconstitutional policy. See Reitz v. County of Bucks, 125

F.3d 139, 145 (3d Cir. 1997) (“[I]n the absence of an

13

unconstitutional policy, a municipality’s failure to properly

train its employees and officers can create an actionable

violation . . . under § 1983.”). Instead, he must demonstrate

that a city’s failure to train its employees “reflects a deliberate

or conscious choice.” Brown, 269 F.3d at 215 (internal

quotation marks omitted). For claims involving police

officers, the Supreme Court has held that the failure to train

“serve[s] as [a] basis for § 1983 liability only where [it] . . .

amounts to deliberate indifference to the rights of persons

with whom the police come into contact.” City of Canton v.

Harris, 489 U.S. 378, 388 (1989) (footnote omitted). A

plaintiff sufficiently pleads deliberate indifference by

showing that “(1) municipal policymakers know that

employees will confront a particular situation[,] (2) the

situation involves a difficult choice or a history of employees

mishandling[,] and (3) the wrong choice by an employee will

frequently cause deprivation of constitutional rights.” Doe v.

Luzerne County, 660 F.3d 169, 180 (3d Cir. 2011) (internal

quotation marks omitted) (quoting Carter v. City of

Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999)).

In view of this case law, Roman has not pled a

municipal policy, as his amended complaint fails to refer to

“an official proclamation, policy, or [an] edict.” Andrews,

895 F.2d at 1480. However, he has sufficiently alleged a

custom of warrantless or nonconsensual searches. He has

also adequately pled that the City failed to train, supervise,

and discipline its police officers.7

7

We consider allegations of failure to train, supervise,

and discipline together because they fall under the same

species of municipal liability. See Rosalie Berger Levinson,

Who Will Supervise the Supervisors? Establishing Liability

for Failure to Train, Supervise, or Discipline in a Post-

14

We start with Roman’s allegations on municipal

custom. He asserts the City had “a pattern or practice of

constitutional violations in areas including . . . arrest

practices.” App. at 137. He further contends it had notice of

this practice, as it received “complaints against officers

accused of . . . conducting improper searches and false

arrests.” Id. at 134. The amended complaint, along with the

press release and Star Ledger article, note that Newark was

under the supervision of a federal monitor after Roman’s

arrest. Am. Compl. ¶ 68; App. at 133, 137. According to the

press release, the monitor would oversee reforms in several

areas, including searches, arrests, and the intake and

investigation of misconduct complaints. App. at 137.

The consent decree echoes these points. It covers the

same type of conduct Roman alleges, as it “prohibit[s]

officers from relying on information known to be materially

false or incorrect to justify a warrantless search . . . [or to]

effect[] an arrest.” Id. at 158; see also id. at 163 (mandating

officers to collect data on consent, the type of search, and “a

brief description of the facts creating probable cause”). The

decree also requires the Police Department to investigate

police misconduct, see generally id. at 184-92, with special

emphasis on allegations of criminal misconduct, false arrest,

planting evidence, and unlawful searches, see id. at 150, 186.

While the consent decree was not in place during

Roman’s search and arrest, we may fairly infer that the

problems that led to it were occurring during the time of his

allegations and for some time before that. See id. at 133-34

(noting the investigation that resulted in the consent decree

and federal supervision began in May 2011 and ended in July

2014). With this mind, the decree fortifies Roman’s

Iqbal/Connick World, 47 Harv. C.R.-C.L. L. Rev. 273, 280

(2012).

15

allegations of unlawful custom because it acknowledges “a

pattern or practice of conduct by the Newark Police

[Department] that deprives individuals of rights, privileges,

and immunities secured by the Constitution.” Id. at 144.

When viewed in conjunction with the Star Ledger article, it

references the types of constitutional violations mentioned in

the amended complaint: warrantless searches, id. at 134, and

false arrests, id. at 158. These violations were widespread

and causally linked to Roman’s alleged injury, as the Police

Department was aware of them but “rare[ly] . . . acted” on

citizen complaints. Id. at 134 (discussing complaints of

“improper searches and false arrests”); see also Beck v. City

of Pittsburgh, 89 F.3d 966, 974 (3d Cir. 1996) (noting the

police department’s failure to act on complaints

“perpetuate[d] the City’s custom of acquiescing in the

excessive use of force by its police officers”). In light of

these allegations, “it is logical to assume that [the City’s]

continued official tolerance of repeated misconduct

facilitate[d] similar unlawful actions in the future,” including

the search and arrest of Roman. Bielevicz, 915 F.2d at 851. It

follows that he has adequately pled a municipal custom and

proximate causation under § 1983.

We reach the same conclusion with respect to

Roman’s failure-to-train, failure-to-supervise, and failure-to-

discipline claims. To start, the Star Ledger article includes a

statement on police training from James Stewart, Jr., the head

of Newark’s police union. He conceded the “last training [he]

received” was in 1995, when he first joined the Newark

Police Department. App. at 134 (internal quotation marks

omitted). Moreover, Stewart is not some unreliable, rogue

officer—he is the head of the police union. Nor is his

experience isolated: the consent decree indicates Newark

police officers in general were not trained on “the

requirements of [the] Fourth Amendment and related law.”

Id. at 160 (discussing various Fourth Amendment doctrines

16

that should be included in police training, including “the

difference[] . . . between voluntary consent and mere

acquiescence to police authority”). The consent decree also

touches on supervisory review of unlawful searches and

arrests, requiring desk lieutenants and unit commanders to

review “searches that appear to be without legal justification”

and “arrests that are unsupported by probable cause.” Id. at

161. Finally, it provides disciplinary measures for police

officers who engage in “unlawful . . . searches” and “false

arrests.” Id. at 192. At the pleadings stage, a fair inference is

that the consent decree was necessary because of Department-

wide failures, not because one officer was last trained in

1995.

This is enough to prove municipal liability because the

City “[knew] to a moral certainty” that its officers would need

to conduct searches. Harris, 489 U.S. at 390 n.10. Yet in at

least one instance it failed to provide training since 1995, see

App. at 134, and per the decree its training did not cover the

basics of the Fourth Amendment, see id. at 158-61. The City

also did not discipline officers for “sustained allegations of

misconduct,” including “prior violations” and other

“aggravating factors.” Id. at 192-93. In view of these

deficiencies, one could reasonably infer that the City’s

inaction “reflected [its] ‘deliberate indifference’” to Roman’s

Fourth Amendment rights. Bd. of Cty. Comm’rs v. Brown,

520 U.S. 397, 409 (1997); cf. Harris, 489 U.S. at 390 n.10

(“[C]ity policymakers know to a moral certainty that their

police officers will be required to arrest fleeing felons. . . .

Thus, the need to train officers in the constitutional

limitations on the use of deadly force . . . can be said to be ‘so

obvious’ . . . that failure to do so could properly be

characterized as ‘deliberate indifference’ to constitutional

rights.” (internal citation omitted)). One could also infer that

the City’s failure to establish an adequate training program

contributed to the specific constitutional violations alleged in

17

the amended complaint. See Brown, 520 U.S. at 409-10

(“The likelihood that the situation will recur and the

predictability that an officer lacking specific tools to handle

that situation will violate citizens’ rights . . . may also support

an inference of causation.”); cf. A.M. ex rel. J.M.K. v. Luzerne

Cty. Juvenile Detention Ctr., 372 F.3d 572, 582 (3d Cir.

2004) (reversing the District Court’s grant of summary

judgment in favor of a municipality because of “unrebutted

testimony” that its juvenile detention center “did not have an

adequate training program”).

We conclude that the allegations regarding Newark’s

failure to train, supervise, and discipline are strong enough to

survive a motion to dismiss. See Am. Compl. ¶¶ 63-98.

Among them are: a failure to train officers on obtaining a

search warrant, id. ¶ 67, and on “issuing truthful investigative

reports,” id. ¶ 77; a failure to supervise and manage officers,

id. ¶¶ 67-68; and a failure to discipline officers, id. ¶ 74, first

by “refus[ing]” to create a well-run Internal Affairs

Department, id. ¶ 81, and second by “inadequately

investigating, if investigating at all, citizens’ complaints

regarding illegal search and seizure, id. ¶ 84. The result was a

“complete lack of accountability” and of “record keeping,” id.

¶ 92, leading to a culture in which officers “knew there would

be no professional consequences for their action[s],” id. ¶ 94.

As the amended complaint alleges, it should come as no

surprise that these conditions led to a federal investigation.

See id. ¶ 89.

The dissent’s attempt to distinguish the consent decree

is unpersuasive. First, it misperceives the decree as

concerning only police interactions with “pedestrians or the

occupants of vehicles,” not home searches. Dissenting Op. at

7 (“The consent decree says nothing about arrests and

searches without consent that occur at residences . . .”). In

fact, one concern of the decree was false arrests, see App. at

18

158, which can occur both at home and on the street. And the

decree does concern home searches: it sets parameters

officers must follow before searching “a home based upon

consent.” Id. Although Reyes by no means consented to the

search here, she willingly opened her apartment door only

because the police had used her friend Isaksem as a Trojan

horse to gain entry.

Second, the dissent believes that the consent decree

cannot help Roman’s case because Roman was Hispanic. See

Dissenting Op. at 7 (“[T]he decree addressed police practices

that disparately impacted the black community. But that

racial disparity did not apply to Roman, who was Hispanic.”).

To the contrary, the consent decree includes an entire section

entitled “Bias-Free Policing,” see App. at 165-67, that never

restricts itself to bias against the black community. Instead, it

provides that police officers must “operate without bias based

on any demographic category,” id. at 166 (emphasis added),

and specifically forbids officers from discriminating based on

“proxies for demographic category” such as “language

ability,” id. at 167. Plainly, the consent decree was meant to

protect all Newark residents, including Hispanic residents.

Further, we find it difficult to square the dissent’s

reasoning with the record evidence discussing the City’s

troubling practices around the time of Roman’s search and

arrest. See, e.g., id. at 134 (stating only one complaint out of

261 filed was sustained by department investigators); id. at

158 (prohibiting officers from relying on materially false

information to justify a warrantless search); id. at 160

(requiring police officers to be trained on “the requirements

of [the] Fourth Amendment and related law”); id. at 161

(mandating supervisory review of “searches that appear to be

without legal justification” and “arrests that are unsupported

by probable cause”).

19

Unable to distinguish the consent decree outright, the

dissent offers two narrow readings of the decree. First, it

maintains that the decree can speak only to the Police

Department’s obligations going forward rather than shed any

light whatsoever on the “status quo” within the Department

before federal intervention. See Dissenting Op. at 10 (stating

that the decree does not provide “any detail as to the status

quo it addressed”). The dissent concedes that the DOJ

probably did not enter into the consent decree because it was

impressed with Newark’s policing practices and wanted to

encourage the City to keep up the good work. Id. At this

stage, we must draw not only such obvious inferences, but

also all reasonable ones, in favor of Roman. Thus we agree

with the dissent on the “clear” difference between “agreeing

to train more” (the consent decree on its face) and “agreeing

that prior training was constitutionally inadequate” (the way

in which the decree supports Roman’s claims). Id. We

simply believe that a reasonable inference bridges the gap in

this case. Indeed, no inference is needed because Roman

made the link explicit in the amended complaint. See Am.

Compl. ¶ 89 (stating that the Police Department’s “deliberate

indifference to citizens’ rights is what led to the imposition of

a [f]ederal [m]onitor program . . . .”).

Second, the dissent believes that the consent decree’s

training requirements, from which we can reasonably infer

inadequate training before the decree, simply amount to

“additional training” in, for instance, the requirements of the

Fourth Amendment. Dissenting Op. at 10. To the contrary,

the consent decree was meant to take the Newark Police

Department back to basics: Do not lie on a warrant

application or to justify a warrantless search, App. at 158;

investigate police activities that appear to have lacked legal

justification, id. at 161; and at all times follow the

requirements of the Fourth Amendment, id. at 160.

20

The theme of the dissent appears to be that we are

refashioning the amended complaint. It claims we are

vacating the District Court’s decision based on facts and

arguments that were not presented to it. But as discussed

above, we are engaged in de novo review of the adequacy of

the amended complaint in light of documents that were before

the District Court and that informed its allegations. See supra

pp. 8-10. Additionally, and to repeat, the specific events

leading up to Roman’s search and arrest are not relevant to

the merits of his municipal liability claim. Thus we are not

vacating the Court’s decision for excluding these facts from

its analysis.

Rather, our focus is directed to Newark’s practice at

the time of Roman’s search and arrest. The Court had notice

of them, as it acknowledged that Roman alleged “a ‘pattern or

practice of constitutional violations in areas including stop[]

and arrest practices, use of force, and theft by officers.’”

Roman, 2017 WL 436251, at *4 (quoting Compl. ¶ 59).

Nonetheless it dismissed the complaint and amended

complaint because it viewed the City as attempting to change

its practices. Even if the record can be read that way—and

we doubt that8—the District Court’s rationale has the wrong

8

The record does not support the Court’s inferences,

as it tells us the DOJ’s investigation was not completed until

July 2014, see App. at 137; the Government did not solicit

applications for a federal monitor until February 2015, see id.;

and the consent decree was not final until May 2016, see id.

at 215. By contrast, Roman was arrested in May 2014 and

imprisoned until December of that year. As such, it is

plausible that Newark’s practices were ongoing when police

officers searched and arrested him. It is also reasonable to

infer that the City’s corrective measures postdated the arrest.

21

focus. The question is not whether some evidence can be

viewed as supporting the City. It is whether, viewing the

pleadings and properly associated documents in the light most

favorable to Roman, there are claims plausible enough to

withstand a motion to dismiss. We think there is one—the

municipal liability claim. And the Court did not have to look

beyond the amended complaint and supporting documents to

glean these facts.

In sum, Roman’s municipal liability claim survives

dismissal based on the record that was before the District

Court. Because the Court reached the opposite conclusion,

we part with its holding. Thus we vacate and remand this

portion of its decision.

B. The District Court correctly dismissed the

false imprisonment and malicious

prosecution claims because they were not

pled under § 1983.

Roman alleges the Defendants are also liable for false

imprisonment and malicious prosecution. As noted, the

District Court construed these claims as state-law claims. It

dismissed them because Roman did not comply with the New

Jersey Tort Claims Act’s procedural requirements for

bringing claims against public entities and public employees.

See N.J. Stat. Ann. § 59:8-1 et seq.

On appeal, Roman contends the Court erred in

dismissing his claims because they were pled under § 1983.

The Defendants counter that both claims were presented as

Hence we do not consider the City’s corrective measures to

be enough to defeat Roman’s allegations.

22

state-law tort claims. They also point out that Roman omitted

them from his amended complaint.9

As a preliminary matter, the Defendants correctly

observe that false imprisonment and malicious prosecution

are not in the amended complaint. Hence we must first

decide if Roman has waived his right to challenge their

dismissal on appeal. If we conclude that waiver does not

apply, we then determine if the District Court correctly

construed them as state-law tort claims.

We have not applied a strict rule in favor of waiver in

this context. Instead, we have allowed “plaintiffs to appeal

dismissals despite amended pleadings that omit the dismissed

claim[,] provided repleading the particular cause of action

would have been futile.” United States ex rel. Atkinson v. Pa.

Shipbuilding Co., 473 F.3d 506, 516 (3d Cir. 2007) (emphasis

in original) (footnote omitted). “Repleading is futile when

the dismissal was ‘on the merits.’ A dismissal is on the

merits when it is with prejudice or based on some legal

barrier other than want of specificity or particularity.” Id. If

a court is uncertain, “doubt[] should be resolved against the

party asserting waiver.” Id. at 517 (emphasis in original).

9

At oral argument, Roman’s counsel stated the false

imprisonment claim was repled in Count 13 of the amended

complaint even though that count alleges “conspiracy to

commit unlawful imprisonment . . . [in violation of] 42

U.S.C. § 1985.” App. at 278 (emphasis added); see Audio

Recording of Oral Argument held June 12, 2018 at 11:39 to

12:06 (http://www2.ca3.uscourts.gov/oralargument/audio/17-

2302TheEstateofAdrianoRomanJrvCityofNewarketal.mp3).

We do not consider this contention, as it was raised for the

first time at oral argument and thus is waived. See In re

Grand Jury, 635 F.3d 101, 105 n.4 (3d Cir. 2011).

23

Here the District Court analyzed both claims on legal

grounds. It observed that they were based on the New Jersey

Tort Claims Act, which allows individuals to bring tort claims

against public entities and employees after complying with

certain procedural and notice requirements, see Tripo v.

Robert Wood Johnson Med. Ctr., 845 F. Supp. 2d 621, 626-

27 (D.N.J. 2012) (summarizing the Act’s procedures for suing

a public entity or employee). It concluded Roman did not

follow these requirements and thus dismissed the claims.

Although the Court was guided by procedural

concerns, its dismissal was on the merits. The Tort Claims

Act bars claims against public entities and employees if a

plaintiff waits more than two years to file a “notice of claim.”

See N.J. Stat. Ann. § 59:8-8(b). The two-year mark is

measured from the day the claim accrues (i.e., the day on

which the public entity or employee allegedly harmed the

plaintiff). In our case, because Roman’s claims accrued in

May 2014, he had until May 2016 to file a notice of claim.

As the Court noted, however, he did not file any type of

notice during the two-year period. See Roman, 2017 WL

436251, at *6 (observing that, as of January 31, 2017, the date

on which the Court dismissed the complaint, Roman had not

filed a notice). Thus Roman’s procedural error morphed into

a dismissal on the merits, see N.J. Stat. Ann. § 59:8-8(b)

(“The claimant shall be forever barred from recovering

against a public entity or public employee if . . . [t]wo years

have elapsed since the accrual of the claim.”), and he may

appeal the District Court’s decision on his false imprisonment

and malicious prosecution claims, see Atkinson, 473 F.3d at

516-17.

In light of this conclusion, we must focus on the

pleadings and decide if Roman’s claims are based on § 1983.

If we look to the complaint, it suggests both false

imprisonment and malicious prosecution are state-law tort

24

claims. It never identifies them as § 1983 or federal claims.

Rather, it presents them generically, following a series of

other state-law tort claims. See, e.g., App. at 44 (“intentional

infliction of emotional distress”); id. at 46 (“negligent

infliction of emotional distress”); id. at 47 (“assault and

battery”); id. at 49 (“unlawful imprisonment”); id. at 51

(“malicious prosecution”). This indicates to us that Roman

pled both claims as state-law claims, not federal claims.

While the unlawful (i.e., false) imprisonment claim does note

that the Defendants “restrict[ed] [Roman’s] constitutionally

guaranteed rights of liberty and freedom of movement,” it is

silent as to whether it refers to the United States or New

Jersey Constitution. Compl. ¶ 114. This is too facile to

imply the former when but a few identifying words would do.

The default is New Jersey law, which defines false

imprisonment as “an[y] unlawful restraint that interferes with

a victim’s liberty” and requires “[n]o further wrongful

purpose” for a prima facie showing. State v. Savage, 799

A.2d 477, 494 (N.J. 2009).

Accordingly, the District Court correctly construed the

false imprisonment and malicious prosecution claims as state-

law tort claims, and we affirm this portion of its holding.10

C. The doctrines of res judicata, collateral

estoppel, and judicial estoppel do not require

us to dismiss Roman’s § 1983 claims.

Finally, the Defendants invoke the doctrines of res

judicata, collateral estoppel, and judicial estoppel. According

10

We also affirm the dismissal of Roman’s unlawful-

search claims because they were not adequately pled. We do

not opine on whether a plaintiff may allege joint and several

liability in connection with an unlawful-search claim.

25

to them, each doctrine compels us to dismiss Roman’s § 1983

claims.

We start with res judicata. The Defendants contend it

bars Roman’s claims because “the criminal matter and the

suppression hearing were based on the exact same facts” as

those alleged in Roman’s pleadings. Defendants’ Br. at 64.

In their view, criminal proceedings are enough to preclude a

civil suit seeking damages under § 1983.

We disagree. “A party seeking to invoke res judicata

must establish three elements: (1) a final judgment on the

merits in a prior suit involving (2) the same parties or their

privies and (3) a subsequent suit based on the same cause of

action.” Duhaney v. Att’y Gen., 621 F.3d 340, 347 (3d Cir.

2010) (internal quotation marks omitted). Roman’s suit is not

based on the same cause of action as the criminal complaint

and suppression hearing. Nor are his current claims of the

type “that could have been brought” in the earlier criminal

proceeding. Id. (internal quotation marks omitted); see also

Helvering v. Mitchell, 303 U.S. 391, 397 (1938) (“The

difference in degree of the burden of proof in criminal and

civil cases precludes application of the doctrine of res

judicata.”). New Jersey initiated the criminal case. Roman

was not at liberty to assert any claims except for defenses

against the prosecution’s case-in-chief. See Leather v. Eyck,

180 F.3d 420, 425 (2d Cir. 1999) (“[B]ecause the nature of

the prior state[-]court proceeding was such that [the

Appellant] could not have sought damages for his alleged

constitutional injuries (while defending himself on [a

criminal] charge . . . ), res judicata does not bar his federal §

1983 suit for damages.”). Moreover, he was not free to raise

his § 1983 claims in the same criminal case; indeed, he could

not bring them until the criminal proceeding concluded. See

Heck v. Humphrey, 512 U.S. 477, 486 (1994) (“[T]he . . .

principle that civil tort actions are not appropriate vehicles for

26

challenging the validity of outstanding criminal judgments

applies to § 1983 damages actions that necessarily require the

plaintiff to prove the unlawfulness of his conviction or

confinement. . . .”). Accordingly, res judicata does not bar

Roman’s claims.

Moving on to collateral estoppel, the Defendants argue

it (1) absolves Officer Mendes of liability because the

Superior Court made a factual finding that Roman possessed

the contraband that was seized from the apartment, (2)

absolves Sergeant Joyce Hill because nothing in the Superior

Court’s transcript indicates she was present for the search and

arrest, and (3) absolves the other named defendants because

the Superior Court’s transcript suggests they only handled the

contraband. According to the Defendants, the Superior Court

decided all of these issues in their favor during the

suppression hearing. See Bd. of Trs. of Trucking Emps. of N.

Jersey Welfare Fund, Inc. v. Centra, 983 F.2d 495, 505 (3d

Cir. 1992) (stating a party is collaterally estopped from

litigating a specific issue if, among other things, “[an]

identical issue was decided in a prior adjudication”). Again

we disagree. Contrary to the Defendants’ assertions, the

Superior Court never decided any of these issues during the

suppression hearing. While it did find that Roman had a

possessory interest in the apartment, that is not enough for us

to conclude that he had actual or constructive possession over

the contraband. Collateral estoppel is not appropriate in this

context.

Last, the Defendants assert that judicial estoppel

precludes Roman’s claims because he admitted that (1) drugs

were found in the apartment, (2) he had a possessory interest

in the apartment, (3) Officer Mendes was the only officer who

initiated the prosecution, and (4) the remaining officers only

handled the contraband and had no other roles. They insist

these concessions “are sufficient to establish that [Roman’s]

27

arrest and prosecution arise out of his possession of

incriminating evidence[.]” Defendants’ Br. at 65. As noted,

“[j]udicial estoppel, sometimes called the ‘doctrine against

the assertion of inconsistent positions,’ is a judge-made

doctrine that . . . prevent[s] a litigant from asserting a position

inconsistent with one that []he has previously asserted . . . in a

previous proceeding.” Ryan Operations G.P., 81 F.3d at 358.

This doctrine is not in play here, as Roman never stipulated

that Officer Mendes was the only officer to bring the

prosecution or that the remaining officers only handled the

contraband. While the Court found that Roman had a

possessory interest in the apartment, that interest (we repeat)

is not enough to establish that he possessed the contraband.

Accordingly, judicial estoppel does not require us to dismiss

Roman’s claims.

* * * * *

Roman has sufficiently alleged a municipal liability

claim against the City of Newark under § 1983. He cites

various examples of inadequate police training, poor police

discipline, and unheeded citizen complaints. He tells us

certain police officers did not receive training for over 20

years, and their training did not cover the basic requirements

of the Fourth Amendment. In his pleadings, he states the

Newark Police Department did not discipline officers who

engaged in police misconduct, Am. Compl. ¶¶ 84-86,

including unlawful searches and false arrests, App. at 134.

He also notes the public filed formal complaints about

improper searches and false arrests that were disregarded

almost wholesale. Id. These alleged practices were ongoing

when Roman’s search and arrest occurred, and the City had

notice of them at that time. While the proof developed to

support these allegations may or may not be persuasive to a

finder of fact, they are enough to survive dismissal at this

stage. Based on this conclusion, we part with the District

28

Court’s holding that Roman failed to state a § 1983 claim

against the City. Though we affirm otherwise, we vacate and

remand its decision on municipal liability.

29

JORDAN, Circuit Judge, concurring.

I join the majority opinion and write separately only to

note that, even if we were to ignore the suppression hearing

transcript and the press release and the Star Ledger article,

there is still a sound basis to conclude that Roman has stated

plausible claims for municipal liability. Our panel is united in

understanding that we can properly consider the consent decree

because it was provided to the District Court and was

referenced and relied upon in Roman’s amended complaint.

Those two sources – the consent decree and the amended

complaint – are sufficient to overcome the motion to dismiss

the claims against the City of Newark.

The consent decree supports the allegations in the

amended complaint in a number of respects. For example, it

expressly prohibits Newark Police officers “from relying on

information known to be materially false or incorrect to justify

a warrantless search or to seek a search warrant[.]” (App. at

158). A fair inference from that prohibition is that it was

needed precisely because the police were often relying on false

information to justify warrantless searches. That inference

bolsters Roman’s allegation that “[n]o drugs were found in

[his] possession” and yet the police “arrested [him] and falsely

charged him with possession of a controlled dangerous

substance[.]” (App. at 263 ¶¶ 28-29).

In another instance, the consent decree suggests that

there has been a lack of training and supervision in the Newark

Police Department. To remedy that deficiency, the consent

decree requires the Department to “provide all officers with at

least 16 hours of training on stops, searches, arrests, ... [and]

1

training ... in ... Fourth Amendment issues” as well as

mandating “desk lieutenant[s] or unit commander[s] [to]

review each arrest report by officers under their command[.]”

(App. at 159-61). The inference that there was inadequate

training supports Roman’s allegation that the Department’s

officers, “through their actions, inactions, course of conduct,

poor or non-existent training and deficient supervision[,]

caused ... [the] illegal deprivation of [his] liberty[.]” (App. at

265 ¶ 48).

As a final example, the consent decree says that the

Department must “conduct integrity audits and compliance

reviews to identify and investigate all officers who have

engaged in misconduct including unlawful ... searches[] and

seizures[.]” (App. at 192). The need for such audits and

reviews lends plausibility to Roman’s allegation that the “City

had a custom and practice of inadequately investigating ...

citizens’ complaints regarding illegal search and seizure[.]”

(App. at 272 ¶ 84).

Thus, looking only at the amended complaint together

with the consent decree, and giving Roman the benefit of all

favorable inferences, as we must at this stage, there is a

sufficient basis to say that Roman has stated plausible claims

for municipal liability under 42 U.S.C. § 1983. Dismissal of

those claims was therefore an error.

2

HARDIMAN, Circuit Judge, concurring in part and dissenting

in part.

The District Court dismissed Roman’s case after giving

him two opportunities to state a claim upon which relief may

be granted and after reconsidering its order of dismissal. Based

on the record presented to it, the District Court’s decision was

correct and should be affirmed as to all but one of Roman’s

claims (the municipal liability claim for failure to train,

supervise, or discipline).

The Majority vacates part of the District Court’s

judgment by reciting facts found nowhere in Roman’s

amended complaint and by adding facts of its own creation that

were neither pleaded nor argued to the District Court with

sufficient specificity. The Majority’s deviation from standard

civil practice and procedure compels this partial dissent.

I

This dissent results principally from a disagreement

with my colleagues about which facts were properly before the

District Court. First, the Majority proffers a narrative that

Roman never gave the District Court and which has no

relevance to the claims it revives. This Court need not (and

should not) recite these “facts” and “background” as true.

Second, Roman did not sufficiently plead a municipal liability

claim based on Newark’s alleged pattern or practice of Fourth

Amendment violations. If the facts as pleaded (or subject to

judicial notice) were as the Majority recites them, I would

agree that Roman stated a claim for relief. But since the actual

facts before the District Court were quite different from those

enunciated by the Majority, the District Court did not err by

dismissing this claim.

1

Despite these disagreements with my colleagues, I

agree with them that Roman’s amended complaint sufficiently

stated a municipal liability claim for failure to train, supervise,

or discipline. Yet I cannot agree with their reasoning in toto

because we should not extrapolate—and the District Court did

not err by declining to extrapolate—from extraneous

documents (like the consent decree Roman never provided nor

cited to the District Court) to reach that conclusion. This single

claim should be resuscitated, but only based on the face of the

amended complaint.

A

The Majority purports to recount the facts of this case

“as set out in the amended complaint and the transcript of the

[state court] suppression hearing.” Maj. Op. 4 n.1. Yet precious

few of those facts were actually pleaded, primarily because the

state court transcript was not proffered to the District Court by

Roman. Moreover, the Majority’s narrative of Roman’s

alleged mistreatment has effectively no bearing on the

municipal liability claims it revives.

The lion’s share of the troubling facts recited by the

Majority were taken from sources other than Roman’s

amended complaint. Those sources—including the state-court

proceedings and subsequent briefs—paint a picture the District

Court never observed while considering the motion to dismiss.

In truth, the amended complaint says nothing about how the

investigation began, or the surveillance of Roman’s apartment,

or the initial interaction between police and Melissa Isaksem,

or the officers’ use of Isaksem as a decoy to gain entry into the

apartment, or the fact that drugs were seized from a common

area, or the expletives and threats that specific officers yelled

at both Roman and his father, or Officer Mendes’s use of

2

physical force. Unlike those graphic and specific facts the

Majority extracts, the amended complaint is replete with

conclusory and generalized assertions. See App. 261–63.

Here are some examples of the Majority’s approach:

Instead of averring that Officer Mendes flipped Roman on his

stomach and put a knee in Roman’s neck, Maj. Op. 5, the

amended complaint merely states that “[t]he Defendant

Officers and Defendant John Does 1–20 (fictitious names)

illegally assaulted the Plaintiff, throwing him against a wall

and handcuffing him,” App. 262. And rather than recounting a

detailed plan to initiate an illegal search that included using an

unwitting friend as a decoy, Maj. Op. 5, the amended

complaint states only that “‘Defendant Officers’ . . . and

Defendant John Does 1–20 (fictitious names), after having the

opportunity to observe that the Plaintiff was a person of Latino

descent, initiated an illegal search and seizure of the Plaintiff’s

residence,” App. 261.

Now on appeal, for the first time Roman cites facts

establishing how the police gained entry into the apartment, the

threatening words they spoke, and the actions of Officer

Mendes. Roman Br. 10–12. We should not endorse this

unpleaded narrative, nor suggest the District Court erred by

failing to manufacture it in the first place.

B

The Majority concludes that Roman’s amended

complaint (supplemented by the consent decree, a news article,

and a press release) contains enough facts to make plausible

his claims that his injuries were proximately caused by

Newark’s: (1) pattern or practice of constitutional violations in

the area of arrest practices; and (2) failure to adequately train,

3

supervise, or discipline its officers. Maj. Op. 15–16. The first

conclusion is unwarranted. And while the second conclusion is

correct, the Majority still errs in its reliance on a document

Roman never cited and inferential leaps that Roman’s

pleadings themselves do not admit.

1

On its face, the amended complaint contains very few

facts related to Roman’s arrest or Newark’s alleged pattern or

practice of rights violations, and what it does contain amount

only to conclusory statements. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (noting that a court’s duty to “accept as true

all of the allegations contained in a complaint is inapplicable

to legal conclusions,” and that “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements, do not suffice”). When we excise from the

Majority’s narrative all facts that were neither pleaded nor

presented to the District Court and the complaints’ legal

conclusions, it becomes clear that the District Court did not err

by twice deeming Roman’s complaint deficient regarding a

pattern or practice of rights violations.

This Court should not fault the trial judge for failing to

take cognizance of facts or arguments never presented to her,

especially here, where Roman chose not to include in his

amended pleading facts that could have been gleaned from

Defendants’ first motion to dismiss and the consent decree

attached to it. See Snyder v. Pascack Valley Hosp., 303 F.3d

271, 276 (3d Cir. 2002) (noting that “[a]n amended complaint

supercedes the original version in providing the blueprint for

the future course of a lawsuit”).

4

The Majority primarily (and incorrectly) relies on that

consent decree to buttress Roman’s pattern-or-practice claim.

Although the District Court could take notice of the consent

decree’s existence, it’s quite another matter to hold it

accountable for not accepting as true everything its contents

could possibly imply—especially when Roman neither

pleaded nor relied upon the decree’s contents.

What is crucial is whether Roman’s complaint was

“based” on the consent decree.1 In re Burlington Coat Factory

Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). Only to the

extent the Majority refashions Roman’s pattern-or-practice

claim such that it is now based on implausible inferences from

the consent decree is it “based on” the consent decree. For

Roman did not explicitly reference, quote, or rely on the

document in his amended complaint—even after the City

provided it. The amended complaint merely references the

decree’s announcement by the Department of Justice months

after his arrest.2 See App. 270 ¶ 68. The District Court, though

it must draw all reasonable inferences in Roman’s favor, had

no obligation to abstract facts or inferences or claims Roman

1

His appellate briefs’ references to the document are

not determinative, no matter how many times they cite the

decree.

2

This timing further complicates the Majority’s reliance

on the consent decree. The decree’s announcement months

after Roman’s arrest requires yet another “infer[ence] that the

problems that led to it were occurring during the time of his

allegations and for some time before that.” Maj. Op. 15. It also

requires an inference that all of the City’s “corrective measures

postdated the arrest.” Id. at 21 n.8.

5

chose not to plead.3 Instead, he was the master of his own

complaint. See Judon v. Travelers Prop. Cas. Co. of Am., 773

F.3d 495, 505 (3d Cir. 2014).

And even if we accept as true all the consent decree

contains, Roman’s arrest was not plausibly part of the pattern

or practice of rights violations the decree addressed, except

perhaps at the highest level of generality.4 For starters, the

decree addressed police stops and arrests of pedestrians or the

occupants of vehicles. See App. 79 (detailing the pattern or

practice investigated by the DOJ that led to the consent

3

The document’s undisputed authenticity as a

government document says nothing about the reasonableness

of the inferences the Majority abstracts from the consent

decree. Nor does it speak to the contents’ relevance to Roman’s

case. Such authenticity merely provides one reason for

judicially noticing the decree’s existence and eliminates one

potential reason for not relying on it. It does not follow that it

is “especially important” for district courts to rely on and

extrapolate from such documents. Maj. Op. 11.

4

The consent decree itself admits no specific pattern or

practice of rights violations. Although it followed a DOJ report

that “revealed a pattern or practice of constitutional violations

in areas including stop and arrest practices, use of force, and

theft by officers,” that report was never provided to the District

Court. App. 137; see Maj. Op. 11–12. Instead, the consent

decree only outlines measures Newark agreed to take—not any

pattern or practice of rights violations, let alone one that

plausibly caused Roman’s injuries. In fact, that report actually

demonstrates that even the pattern or practice that led to the

consent decree could not plausibly have caused Roman’s

injuries.

6

decree’s adoption). The consent decree says nothing about

arrests or searches without consent that occur at residences,

which is what Roman complains of in this case.

Another problem that distinguishes Roman’s complaint

from the problems that led to the consent decree is the fact that

the decree addressed police practices that disparately impacted

the black community. See App. 93–98 (detailing same).5 But

that racial disparity did not apply to Roman, who was Hispanic.

See App. 261 ¶ 16. While the consent decree may have been

“meant to protect all Newark residents,” Maj. Op. 19, the point

remains that the pattern or practice giving rise to it was not one

that plausibly caused Roman’s injuries.

Finally, the consent decree addressed erroneous

narcotics arrest reports where “individuals often were

purportedly seated in cars holding clear plastic baggies in front

of them or on their laps and officers could ‘immediately’ see

the contraband, even though the report indicated that the

subject’s back was to an officer, or that the officer had not yet

approached the car.” App. 92 (detailing the pattern or practice

investigated by the DOJ that led to the consent decree’s

adoption). Wholly unrelated to those erroneous reports, Roman

alleges that officers exhaustively searched the apartment

5

In his motion for reconsideration, Roman claimed his

municipal liability argument was based on “the City’s

widespread and systemic misuse of police powers to treat

members of a protected racial class different from those of

white citizens.” ECF 43-3 at 8. Unlike the pattern or practice

of Fourth Amendment violations the Majority now remands,

he argued “racial profiling, racial discrimination, or other

widespread discrimination of minorities” gave rise to his

municipal liability cause of action. Id.

7

without a warrant, and he is silent as to where and when the

officers found the drugs. See App. 30–31, 262–63.

In sum, Roman’s arrest was too dissimilar from the

pattern or practice addressed by the consent decree to plausibly

allege proximate causation for his injuries. While clear that the

DOJ did not enter into the consent decree “because it was

impressed with Newark’s policing practices,” Maj. Op. 20, it

was not the District Court’s duty to imagine all possible

inferences from the document. It was Roman’s duty to plead

them. See Judon, 773 F.3d at 505. For the Majority to conclude

otherwise, it must derive that pattern or practice from sources

not before the District Court and define it at the highest level

of generality: Fourth Amendment violations writ large. In other

words, my colleagues conclude that because Newark police

allegedly engaged in a pattern or practice of Fourth

Amendment violations of type x, it follows that they plausibly

committed this violation of type y—all based on a document

they cannot claim the District Court must have considered. The

District Court did not err in failing to perform the Majority’s

inferential leaps to reach that conclusion based on a document

it need not have considered in the first place. It properly

dismissed this claim rather than indulge such speculation. See

Iqbal, 556 U.S. at 679–80.

With or without these sources, the amended complaint’s

bare legal conclusions need not be accepted as true. Id. at 678.

So Roman failed to state a pattern-or-practice claim on which

relief could be granted.

8

2

Roman’s failure-to-train, failure-to-supervise, and

failure-to-discipline claim was sufficiently pleaded. But the

Majority’s method for arriving at this conclusion suffers from

similar deficiencies to its pattern-or-practice reasoning. The

Majority’s reliance on the consent decree is again misplaced

for the reasons discussed above.6 And even if such reliance

were appropriate, the consent decree does not make Roman’s

claim plausible.

Roman’s arrest was not plausibly caused by the failures

to train, supervise, or discipline Newark officers the Majority

cites in the consent decree because no such failures appear in

the document. The Majority claims “the consent decree

indicates Newark police officers were not trained on ‘the

requirements of [the] Fourth Amendment and related law.’”

Maj. Op. 16. And “per the decree” the City’s “training did not

cover the basics of the Fourth Amendment.” Id. at 17. It does

no such thing. Rather, it indicates that Newark agreed to

6

The Majority’s reliance on the news article and press

release hyperlinked in Roman’s complaints is likewise

inappropriate. The news article’s identification of one

officer—who may or may not have been involved in Roman’s

arrest—who told a reporter he “think[s]” he did not receive

training for 20 years is not enough to subject the City to

liability for failure to adequately train its entire police force.

App. 134 (emphasis added). This demonstrates no custom; nor

does it plausibly demonstrate the police academy training all

officers receive was constitutionally inadequate without more

follow-up. Nor does the article address supervision or

discipline. Similarly, the press release addresses none of the

three.

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implement additional training on “the requirements of [the]

Fourth Amendment and related law” without any detail as to

the status quo it addressed. App. 160. While it’s safe to say that

the DOJ did not endorse that status quo, the difference between

agreeing to train more and agreeing that prior training was

constitutionally inadequate regarding the Fourth Amendment

writ large should be clear. And, as discussed above, the consent

decree arose from a host of policing practices unlike those

Roman alleged (except at the highest level of generality).

Newark could not plausibly have agreed to the extraordinary

liability that would come from admitting that its police training

violated the Fourth Amendment in every instance, or in every

instance possibly connected to Roman’s arrest. Indeed, the

decree says no such thing about any instance.

The consent decree is even thinner as it relates to

supervisory and disciplinary issues. From the City’s agreement

to adhere to certain review processes and disciplinary measures

regarding unlawful searches and false arrests, the Majority

perceives a “deliberate indifference to Roman’s Fourth

Amendment rights.” Maj. Op. 17 (internal quotations and

citation omitted). That does not follow. The decree does not

describe or admit any processes or measures already in place

or any existing pattern of unlawful searches or false arrests.

Instead, Roman’s amended complaint directly alleged

training, supervision, and discipline problems with adequate

specificity to survive a motion to dismiss. See, e.g., App. 270–

72 ¶¶ 68, 70, 71, 78, 80, 82; see also Doe v. Luzerne Cty., 660

F.3d 169, 179–80 (3d Cir. 2011) (quoting Carter v. City of

Phila., 181 F.3d 339, 357 (3d Cir.1999)) (detailing standard at

summary judgment for failure-to-train claim). The Majority’s

improper reliance on the consent decree and inferential leaps

10

from that and other sources outside the amended complaint are,

in my view, erroneous and unnecessary.

* * *

As we have noted many times before, we are a court of

review, not a court of first view. See, e.g., In Re: J & S Props.,

LLC, 872 F.3d 138, 148 (3d Cir. 2017). Our review is based on

the record as presented by counsel in our adversary system. We

should not fault the District Court for failing to manufacture

facts and craft arguments that Roman neglected to plead. By

conjuring its own facts repackaged as if pleaded in the

amended complaint, the Majority imposes a new duty upon

district judges within the Third Circuit. It does so without

citing precedent for the proposition that a district court must

consider facts and arguments never pleaded or argued by the

plaintiff. I cannot subscribe to this new rule.

This appeal implicates a fundamental legal principle:

the plaintiff is the master of his complaint. Because of that

time-honored principle, Roman’s failure to state a policy-or-

practice claim upon which relief may be granted requires the

harsh sanction of dismissal. After his initial complaint was

found inadequate, Roman failed to file an amended complaint

that cured the deficiencies identified by the District Court.

Even assuming Roman might have had a legitimate claim, it

would have been improper for the District Court to try to make

Roman’s case for him. And it’s especially inappropriate for us

to overrule the decision of a district judge because of a failure

to apprehend facts and arguments never presented to her. I

respectfully dissent.

11