-AMD PETERSON v. DET. CHRISTOPHER KOROBELLIS et al, No. 1:2009cv06571 - Document 12 (D.N.J. 2010)
Court Description: OPINION. Signed by Judge Jerome B. Simandle on 12/28/2010. (nz, )
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-AMD PETERSON v. DET. CHRISTOPHER KOROBELLIS et al Doc. 12 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ROBERT PETERSON, a/k/a Parrish Chandler, Plaintiff, v. DET. CHRISTOPHER KOROBELLIS, et al., Defendants. : : : : : : : : : : : Civil Action No. 09-6571 (JBS) OPINION APPEARANCES: Plaintiff pro se Robert Peterson Atlantic County Correctional Facility 5060 Atlantic Avenue Mays Landing, NJ 08330 SIMANDLE, District Judge Plaintiff Robert Peterson, a pre-trial detainee confined at Atlantic County Correctional Facility in Mays Landing, New Jersey, seeks to bring this action in forma pauperis pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Based on his affidavit of indigence and the absence of three qualifying dismissals within 28 U.S.C. §1915(g), the Court will grant Plaintiff s application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the Court to file the Complaint. Dockets.Justia.com At this time, the Court must review the Complaint to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief. I. BACKGROUND The following factual allegations are taken from Plaintiff s Complaint and are accepted as true for purposes of this review. Plaintiff alleges that on January 20, 2009, he was arrested for armed robbery. Plaintiff does not identify the individuals who arrested him. Plaintiff alleges that on January 19, 2009, the day before his arrest, Wildwood Police Det. Sgt. Kenneth Gallagher and Det. Chris Korobellis responded to a reported robbery of the Wawa convenience store located at 3200 New Jersey Avenue in Wildwood. The alleged victim, Gerry A Best, Jr., reported that he was robbed while waiting for his friend Bruce Pearson. Pearson allegedly arrived in a silver car with four other individuals: Amy Bianchino, the driver, Ashley Funk, the front seat passenger, and two unnamed black males who exited the vehicle when it arrived at the Wawa and allegedly robbed Mr. Best. Det. Sgt. Gallagher and Det. Korobellis took a statement from Mr. Best. Shortly after the robbery was reported, a Lower Township officer pulled over a silver Impala containing Amy Bianchino, 2 Ashley Funk, and Bruce Pearson. The officer allegedly observed the handle of a gun in plain view under the driver seat. three people in the car were detained. The During their initial taped interviews, none of these individuals identified Plaintiff as one of the two black males allegedly involved in the robbery. Later, after viewing a photographic line-up, Bianchino, Funk, and Best identified Plaintiff as one of the individuals involved in the robbery. Plaintiff alleges that the photographs were not shown sequentially to these individuals; he also alleges that there is no record of the circumstances surrounding the photographic line-up. In addition, Plaintiff alleges that he was identified by a former girlfriend, Iesha Tatem, who allegedly knew him only by a nickname, but identified him when she was shown a single photograph of him. Plaintiff asserts that his arrest violated his right not to be deprived of liberty without due process. He names as defendants Detective Christopher Korobellis, Det. Sgt. Kenneth Gallagher, and the Wildwood Police Department. II. STANDARDS FOR A SUA SPONTE DISMISSAL This Court must dismiss, at the earliest practicable time, certain in forma pauperis and prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. 3 § 1915A (actions in which prisoner seeks redress from a governmental defendant); 42 U.S.C. § 1997e (prisoner actions brought with respect to prison conditions). In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff. Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). A complaint is frivolous if it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (interpreting the predecessor of § 1915(e)(2), the former § 1915(d)). The standard for evaluating whether a complaint is frivolous is an objective one. Deutsch v. United States, 67 F.3d 1080, 1086-87 (3d Cir. 1995). In addition, any complaint must comply with the pleading requirements of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief. A complaint must plead facts sufficient at least to suggest a basis for liability. 218, 236 n.12 (3d Cir. 2004). Spruill v. Gillis, 372 F.3d Specific facts are not necessary; 4 the statement need only give the defendant fair notice of what the ... claim is and the grounds upon which it rests. Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted). While a complaint ... does not need detailed factual allegations, a plaintiff s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts are not bound to accept as true a legal conclusion couched as a factual allegation ). Factual allegations must be enough to raise a right to relief above the speculative level ... . Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (citations omitted). The Supreme Court has demonstrated the application of these general standards to a Sherman Act conspiracy claim. In applying these general standards to a § 1 [conspiracy] claim, we hold that stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement. And, of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely. ... It makes sense to say, therefore, that an allegation of parallel conduct and a bare assertion of conspiracy will not suffice. Without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality. Hence, when allegations of parallel conduct are set out in order to make a § 1 claim, they must be placed in a context that raises a suggestion of a preceding agreement, not 5 merely parallel conduct that could just as well be independent action. The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the plain statement possess enough heft to sho[w] that the pleader is entitled to relief. A statement of parallel conduct, even conduct consciously undertaken, needs some setting suggesting the agreement necessary to make out a § 1 claim; without that further circumstance pointing toward a meeting of the minds, an account of a defendant s commercial efforts stays in neutral territory. ... Twombly, 127 S.Ct. at 1965-66 (citations and footnotes omitted). The Court of Appeals for the Third Circuit has held, in the context of a § 1983 civil rights action, that the Twombly pleading standard applies outside the § 1 antitrust context in which it was decided. See Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) ( we decline at this point to read Twombly so narrowly as to limit its holding on plausibility to the antitrust context ). Context matters in notice pleading. Fair notice under Rule 8(a)(2) depends on the type of case -- some complaints will require at least some factual allegations to make out a showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests. Indeed, taking Twombly and the Court s contemporaneous opinion in Erickson v. Pardus, 127 S.Ct. 2197 (2007), together, we understand the Court to instruct that a situation may arise where, at some point, the factual detail in a complaint is so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8. Put another way, in light of Twombly, Rule 8(a)(2) requires a showing rather than a blanket assertion of an entitlement to relief. We caution that without some factual allegation in the complaint, a 6 claimant cannot satisfy the requirement that he or she provide not only fair notice, but also the grounds on which the claim rests. Phillips, 515 F.3d at 232 (citations omitted). More recently, the Supreme Court has emphasized that, when assessing the sufficiency of any civil complaint, a court must distinguish factual contentions -- which allege behavior on the part of the defendant that, if true, would satisfy one or more elements of the claim asserted -- and [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Although the Court must assume the veracity of the facts asserted in the complaint, it is not bound to accept as true a legal conclusion couched as a factual allegation. Id. at 1950. Thus, a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. Therefore, after Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief. In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to show such an entitlement with its facts. See Phillips, 515 F.3d at 234-35. As the Supreme Court instructed in Iqbal, [w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, Id. 7 the complaint has alleged-but it has not show[n] - that the pleader is entitled to relief. This plausibility determination will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citations omitted). Where a complaint can be remedied by an amendment, a district court may not dismiss the complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996). III. SECTION 1983 ACTIONS A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his constitutional rights. Section 1983 provides in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ... . Thus, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation of a right secured by the 8 Constitution or laws of the United States and, second, that the alleged deprivation was committed or caused by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Local government units and supervisors are not liable under § 1983 solely on a theory of respondeat superior. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 n.8 (1985); Monell v. New York City Department of Social Services, 436 U.S. 658, 69091, 694 (1978) (municipal liability attaches only 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 complained of); Natale v. Camden County Correctional Facility, 318 F.3d 575, 583-84 (3d Cir. 2003). A defendant in a civil rights action must have personal involvement in the alleged wrongs, liability cannot be predicated solely on the operation of respondeat superior. Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted). Accord Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-96 (3d Cir. 1997); Baker v. Monroe Twp., 50 F.3d 1186, 119091 (3d Cir. 1995). 9 To establish municipal liability under § 1983, a plaintiff 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 v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990), quoted in Blanche Rd. Corp. v. Bensalem Twp., 57 F.3d 253, 269 n.16 (3d Cir.), cert. denied, 516 U.S. 915 (1995), and quoted in Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118, 126 (3d Cir. 2000). A plaintiff must demonstrate that, through its deliberate conduct, the municipality was the moving force behind the plaintiff s injury. Monell, 436 U.S. at 689. A policy is made when a decisionmaker possess[ing] final authority to establish municipal policy with respect to the action issues a final proclamation, policy or edict. Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion)). A custom is an act that has not been formally approved by an appropriate decisionmaker, but that is so widespread as to have the force of law. [Bd. of County Comm rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 404 (1997).] There are three situations where acts of a government employee may be deemed to be the result of a policy or custom of the governmental entity for whom the employee works, thereby rendering the entity liable under § 1983. The first is where the appropriate officer or entity promulgates a generally applicable statement of policy and the subsequent act complained of is simply an implementation of that policy. The second occurs where no rule has been announced as policy but federal law has been violated by an act of the policymaker itself. Finally, a policy or custom may also exist where the policymaker has failed to act affirmatively at all, [though] the need to take some action to control the agents of the government is so 10 obvious, and the inadequacy of existing practice so likely to result in the violation of constitutional rights, that the policymaker can reasonably be said to have been deliberately indifferent to the need. Natale, 318 F.3d at 584 (footnote and citations omitted). Here, Plaintiff has failed to allege any facts suggesting that the circumstances surrounding his arrest were the result of an official policy or acquiescence in a well-settled custom. Accordingly, the false arrest claim against the Wildwood Police Department will be dismissed without prejudice. Finally, a § 1983 action brought against a person in his or her official capacity generally represent[s] only another way of pleading an action against an entity of which an officer is an agent. Monell, 436 U.S. at 690 n.55. [I]n an official- capacity action, ... a governmental entity is liable under § 1983 only when the entity itself is a moving force behind the deprivation; thus, in an official capacity suit the entity s policy or custom must have played a part in the violation of federal law. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (internal quotation marks and citations omitted). IV. ANALYSIS It is well established in the Third Circuit that an arrest without probable cause is a Fourth Amendment violation actionable under § 1983. See Walmsley v. Philadelphia, 872 F.2d 546 (3d Cir. 1989)(citing cases); see also, Albright v. Oliver, 510 U.S. 266, 274 (1994)(a section 1983 claim for false arrest may be 11 based upon an individual s Fourth Amendment right to be free from unreasonable seizures). Under New Jersey law, false arrest has been defined as the constraint of the person without legal justification. Ramirez v. United States, 998 F. Supp. 425, 434 (D.N.J. 1998) (quoting Fleming v. United Postal Service, Inc., 604 A.2d 657, 680 (N.J. Law Div. 1992)). Moreover where the police lack probable cause to make an arrest, the arrestee has a claim under § 1983 for false imprisonment based on a detention pursuant to that arrest. Groman v. Manalapan, 47 F.3d 628, 636 (3d Cir. 1995); Palma v. Atlantic County, 53 F. Supp. 2d 743, 755 (D.N.J. 1999)(citing Groman). See also Anela v. City of Wildwood, 595 F. Supp. 511, 512 (D.N.J. 1984)(holding a person for any length of time without legal justification may be a violation of the right to liberty under the Fourteenth Amendment and thus states a claim of false imprisonment under § 1983).1 To state a Fourth Amendment claim for false arrest, a plaintiff must allege two elements: (1) that there was an arrest; and (2) that the arrest was made without probable cause. Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1 While [a] false imprisonment claim under 42 U.S.C. § 1983 is based on the Fourteenth Amendment protection against deprivations of liberty without due process of law[,] Baker v. McCollan, 443 U.S. 137, 142 (1979), the claim is derivative of a Fourth Amendment violation for arrest without probable cause. See Groman, 47 F.3d at 636. 12 1988). If there was probable cause, the arresting officer is not liable under 42 U.S.C. § 1983 for a false arrest. See, e.g., Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir. 1978) and Bussard v. Neil, 616 F.Supp. 854 (M.D. Pa. 1985). On this subject the Supreme Court has said: [An arrestee's) innocence of the charge..., is largely irrelevant to his claim of deprivation of liberty without due process of law. The Constitution does not guarantee that only the guilty will be arrested. Baker v. McCollan, 443 U.S. 137, 145 (1979) (footnote omitted). To establish the absence of probable cause, a plaintiff must show that at the time when the defendant put the proceedings in motion the circumstances were such as not to warrant an ordinary prudent individual in believing that an offense had been committed. Lind v. Schmid, 67 N.J. 255, 262 (1975). Probable cause . . . requires more than mere suspicion; however, it does not require that the officer have evidence to prove guilt beyond a reasonable doubt. Orsatti v. New Jersey State Police, 71 F.3d 480, 482-83 (3d Cir. 1995). Rather, probable cause exists when the facts and circumstances are sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense. Gerstein v. Pugh, 420 U.S. 103, 111 (1975) (quoting Beck v. State of Ohio, 379 U.S. 89, 91 (1964)); Sharrar v. Felsing, 128 F.3d 810, 817 (3d Cir. 1997). 13 The existence of probable cause is usually a question for the jury, but a judge may decide the probable cause issue where no genuine issue of material fact exists. Vazquez v. Rossnagle, 163 F. Supp.2d 494, 497 -498 (E.D. Pa. 2001). Where a police officer possesses knowledge of a credible eyewitness ... a reasonable jury could not find that [he] lacked knowledge of sufficient facts to establish probable cause to arrest. Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 790 (3d Cir. 2000). Here, Plaintiff asserts that the arresting officers lacked probable cause to arrest because the identifications were not reliable. He relies upon Neil v. Biggers, 409 U.S. 188 (1972). In Neil v. Biggers, the Supreme Court held that to violate due process an identification must both be unnecessarily suggestive and create a substantial risk of misidentification. [R]eliability is the linchpin in determining the admissibility of identification testimony ... . The factors to be considered ... include the opportunity of the witness to view the criminal at the time of the crime, the witness degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)). Thus, due process is violated if pre-trial identification procedures were so impermissibly suggestive as to give rise to a 14 very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377 (1968). In addition, the Supreme Court has recognized that improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals. Simmons, 390 U.S. at 383. The Court has identified certain procedures that heighten the risk of misidentification, including such practices as displaying the photo of only a single individual who generally resembles the person the witness saw, showing the witness photos of several persons among which the photograph of a single individual recurs or is in some way emphasized, or indicating to the witness that police have other evidence that one of the persons pictured committed the crime. Id. Despite the risk of misidentification, the Supreme Court has not prohibited the employment of photographic identification methods, either in the exercise of its supervisory power or as a matter of constitutional requirement. Id. Instead, the Court has required that each case must be considered on its own facts and must be evaluated in light of the totality of surrounding circumstances; also, the Court has noted that the risk of conviction based on photo misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method s potential for error. Id. 15 Here, Plaintiff has failed to allege facts sufficient to establish that the arresting officers, presumably Det. Korobellis and Det. Sgt Gallagher, lacked probable cause for his arrest. He has alleged that an individual who was a former girlfriend positively identified him from a single photograph. Nothing in those facts indicates impermissible suggestiveness in the identification procedure. In addition, he alleges that three other individuals, one of whom was the victim, and two of whom were allegedly in the car with him, also positively identified him during a photographic line-up. It is not sufficient, in order to state a claim for an impermissibly suggestive photographic identification, to allege that the absence of a detailed record of the photographic identification procedures means that there might have been some impropriety that would deprive the arresting officers of knowledge of a credible eyewitness. state a claim. Plaintiff bears the burden of alleging facts that Here, he has alleged nothing but supposition. The allegations fail to state a claim and the Complaint will be dismissed without prejudice. Plaintiff will be granted leave to move to re-open and file a proposed amended complaint if he can overcome the deficiencies noted herein. In particular, the Court notes that Plaintiff has failed to state the identities of the arresting officers or the nature of the involvement of the named defendants here in the 16 circumstances of his arrest. Complaint deficient. These omissions, alone, make this In addition, the Court notes its concern that it may be compelled to stay this action under the rule of Wallace v. Kato, 549 U.S. 384 (2007): If a plaintiff files a false arrest claim before he has been convicted (or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended. ... If the plaintiff is ultimately convicted, and if the stayed civil suit would impugn that conviction, Heck will require dismissal; otherwise, the civil action will proceed, absent some other bar to suit. 549 U.S. at 393-94. The allegations raise a concern for this Court that issues regarding the constitutionality of the prearrest identification procedures may be litigated in the pending criminal action. In any future motion to re-open, Plaintiff must address the issue whether Wallace v. Kato requires that the action be stayed. In other words, Plaintiff must indicate in any proposed Amended Complaint whether he has been convicted or acquitted of the charge and whether his criminal case is still pending in the trial court or on appeal. Plaintiff is further reminded that if he has been convicted, he cannot challenge his state court conviction in federal court until he has exhausted all available state court remedies and then files a timely habeas corpus petition in federal court under 28 U.S.C. § 2254. 17 V. CONCLUSION For the reasons set forth above, the Complaint will be dismissed without prejudice, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a claim.2 However, because it is conceivable that Plaintiff may be able to supplement his pleading with facts sufficient to overcome the deficiencies noted herein, the Court will grant Plaintiff leave to move to re-open and file an amended complaint.3 An appropriate order follows. s/ Jerome B. Simandle Jerome B. Simandle United States District Judge Dated: December 28, 2010 2 The Court notes that [g]enerally, an order which dismisses a complaint without prejudice is neither final nor appealable because the deficiency may be corrected by the plaintiff without affecting the cause of action. ... The dispositive inquiry is whether the district court s order finally resolved the case. Martin v. Brown, 63 F.3d 1252, 1257-58 (3d Cir. 1995) (quoting Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976)) (other citations omitted). In this case, if Plaintiff can correct the deficiencies of his Complaint, he may file a motion to re-open these claims in accordance with the court rules. 3 Plaintiff should note that when an amended complaint is filed, the original complaint no longer performs any function in the case and cannot be utilized to cure defects in the amended [complaint], unless the relevant portion is specifically incorporated in the new [complaint]. 6 Wright, Miller & Kane, Federal Practice and Procedure § 1476 (2d ed. 1990) (footnotes omitted). An amended complaint may adopt some or all of the allegations in the original complaint, but the identification of the particular allegations to be adopted must be clear and explicit. Id. To avoid confusion, the safer course is to file an amended complaint that is complete in itself. Id. 18
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