BROWN et al v. MOUNT LAUREL TOWNSHIP et al, No. 1:2013cv06455 - Document 145 (D.N.J. 2016)
Court Description: OPINION FILED. Signed by Judge Joseph H. Rodriguez on 9/21/16. (js)
Download PDF
<![CDATA[
BROWN et al v. MOUNT LAUREL TOWNSHIP et al Doc. 145 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY DENNIS K. BROWN, et al., Plaintiffs, v. MOUNT LAUREL TOWNSHIP, et al., Defendants. : Hon. J oseph H. Rodriguez : Civil Action No. 13-6455 : OPINION : : Plaintiffs Dennis Brown (in his own right and on behalf of the Estate of David Brown) and Dorothy Brown (in her own right and on behalf of the Estate of David Brown) (collectively Plaintiffs), bring this civil rights com plaint nam ing several m em bers of the New J ersey State Police and others and m em bers of the Mount Laurel Township Police Departm ents Defendants.1 Currently before the Court are five m otions. Both the State 1 The New J ersey State Defendants are as follows: Barlow, Botti, Bucchere, Byrne, Carnival, Crutchley, Cacchiara, D’Angelo, DiPaola, Fiorello, Fowler, Gallagher, Georgeson, Gorm an, Graeber, Hendrickson, Hoppe, Kersetter, Klagg, Lawyer, Leone, Logan, Paret, Perry, Poskay, Poulton, Reader, Rodcap, Stickel, Stohanov, Vega, Walsh, as well as against individuals identified by their badge num ber: 570 5, 5617, 60 87, 6122, 6274, 6581, 6217 (collectively “State Defendants”). The Mount Laurel Defendants are as follows: Richard Carp, Mark Colligan, Michael Cresong, Dennis A. Cribben, Earl Dever, Aaron Diperi, Aaron Harty, Glen Horay, Daniel Howard, Corey J ones, J ohn Lake, Brian Michigan, Paul Modugno, Mount Laurel Township, Ryan Orange, J effrey Palladino, Edward Pincus, Stephen Riedener, William Rudderow, Dean Rutkowski, and Thom as Shinn (collectively “Mount Laurel Defendants”). 1 Dockets.Justia.com Defendants and the Mount Laurel Defendants m ove, separately, to dism iss the Second Am ended Com plaint pursuant to Fed. R. Civ. P. 12(b)(6). State Defendants m ove, pursuant to L. Civ. R. 5.2(e), to seal certain docum ents attached to its brief in support of its m otion. Plaintiffs m ove to dism iss State Defendants’ m otion to dism iss and separately seek perm ission to file a sur-reply in opposition to State Defendants' m otion to dism iss.2 The Court held a hearing on Septem ber 12, 20 16 at which tim e the Court granted the m otion to seal and granted the Defendants’ m otions as to Plaintiffs’ claim s against the individual Defendants in their official capacities. For the reasons expressed on the record that day and for those that follow, State Defendants’ m otion to seal is granted, State Defendants’ Motion to Dism iss is granted in part and denied in part, Mount Laurel Defendants’ Motion to Dism iss is gran ted in part and denied in part and Plaintiffs’ Motions to dism iss and for perm ission to file a sur-reply are, respectively, denied and dism issed as m oot. I. Ge n e ral Backgro u n d Plaintiffs allege that from the late evening of October 27, 20 11 into the m orning of October 28, 20 11, m em bers of the New J ersey State Police, and several m em bers of the Mount Laurel Police Departm ent were involved in a Plaintiffs’ Motion to dismiss State Defendants’ motion to dismiss is denied. Plaintiffs’ motion for permission to file a sur reply in opposition to State Defendants' Motion to dismiss is dismissed as moot. 2 2 stand-off type situation with the deceased, David Brown (“Decedent”). The incident began when Decedent’s telephone conversation with his brother Harry Brown caused Harry concern that Decedent was suicidal. (Second Am ended Com plaint "SAC" ¶68). Harry spoke with their m other, Dorothy Brown, and Dorothy spoke with Decedent by phone. Id. at ¶69. When Harry went to his brother’s residence at som e point before m idnight, Decedent answered the door carrying a .38 caliber pistol. Id. at ¶71. The brothers watched television and Harry coaxed Decedent into putting the gun away. Id. at ¶¶71-72. Several hours passed and Harry eventually left his brother. Id. As he exited the residence he heard a single bang sound and, at the tim e, believed the sound to be a gunshot. Id. at ¶73. Harry reentered the house and started to the bedroom , only to find the door locked. Id. Harry sent a text-m essage to Michael Radano, a friend of Decedent. Id. at ¶74. Radano worked in a m ental facility and Harry inform ed him that Decedent had discharged a gun and asked for assistance. Id. As Harry waited for Radano, he entered the bedroom and found Decedent holding the sam e .38 caliber pistol and appearing to be in a daze; Harry thought the daze could be the result of Xanax. Id. at ¶75. When Radano arrived, Decedent becam e upset and went down stairs to look at Radano’s vehicle. 3 Id. at ¶¶75-77. At this point, Harry took possession of the .38 caliber pistol and noticed that it was cool, indicating to him that this gun had not recently been fired as he first believed. Id. Decedent told Radano he was not welcom e; apparently the two were no longer on friendly term s. Id. at ¶80 . Radano persisted and accom panied Harry into the residence and upstairs, but the door to Decedent’s room was closed. Id. at ¶82. Neither m an attem pted to open to door. Id. It is alleged that Radano did not want to leave Decedent alone and asked Harry to retrieve the gun. Id. at ¶83. Radano took the gun and locked it in his car and told Harry they needed to call the police. Id. at 84. Although Harry insisted the police would m ake m atters worse, Radano called “911” while Harry went back inside to check on Decedent. Id. By now, it was approxim ately 4:20 a.m . on October 28, 20 11. In its attem pt to distinguish facts, highlight contradictions, and challenge the inform ation given to the police, the Com plaint m akes reference to several police reports and accounts for the purpose of putting the events into a tim eline.3 In this regard, the Com plaint avers that the 3 “Although a district court m ay not consider m atters extraneous to the pleadings, a docum ent integral to or explicitly relied upon in the com plaint m ay be considered 4 Burlington County Central Com m unications reported that the “911” caller stated that Decedent had “locked him self inside a bedroom ,” that he “had access to weapons,” and that the caller had already seized one of the weapons.” Id. at ¶86. As a result, two Mount Laurel Police Officers, Orange and Rutkowski, were dispatched to Decedent’s residence. Id. at ¶87. The Com plaint further attem pts to posit narratives from som e of the Defendants, without identifying the source of the report. In this m anner, the Com plaint claim s that Orange’s narrative includes an adm ission by Harry that Decedent answered the door holding a gun and that when he left the hom e, Harry heard a loud bang that he believed to be a gunshot and that Harry took the weapon from Decedent. Id. at ¶93. In addition, Orange was told by Harry that Harry could not find a bullet hole from the loud bang he heard and that Harry now theorizes that the loud bang could have been from a “firecracker” or “his brother punching the wall.” Id. Although without converting the m otion to dism iss into one for sum m ary judgm ent.” U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 38 3, 388 (3d Cir. 20 0 2) (internal quotation m arks and citations om itted) (em phasis deleted). Accord Lum v. Bank of Am ., 361 F.3d 217, 221 n.3 (3d Cir. 20 0 4) (citations om itted). In this regard, Plaintiffs’ confusing incorporation of police narratives to shape and challenge the events leading up to Decedent’s death raises a question as to whether Plaintiffs rely on these docum ents in a m anner that perm its the Court to consider the facts therein on this m otion. Because the Com plaint is drafted in a m anner which disputes certain inform ation relied upon by the police, the Court will not consider these docum ents under this exception to the Rule 12(b)(6) standard. 5 the Com plaint avers that Harry willingly shared that Decedent was recently suffering from depression, it specifically disputes that Harry told Orange that Decedent also suffered from schizophrenia. Id. at ¶¶95-97. Rather, Harry relayed that an uncle suffered from schizophrenia. Id. at ¶¶97. According to the Com plaint, Orange was unwilling to accept Harry’s explanation that the loud bang em anated from som ething other than a gun. At 4:40 a.m ., Decedent closed the front door to the house and m em bers of the New J ersey State Police Crisis Negotiation Team (“CNT”) and Technical Em ergency and Mission Specialists (“TEAMS”) unit were sum m oned to the scene. Id. at ¶¶10 4-10 7. The Com plaint states that the “decision to sum m on the T.E.A.M.S. Unit and the approval of sam e the above officers was m ade without the inform ation, inquiry, and analysis necessary to determ ine whether sum m on ing T.E.A.M.S. Unit was necessary or appropriate at this tim e based on the inform ation known to police; particularly Harry Brown’s explanation that a gun was never fired inside the hom e. Id. at ¶10 5. Over the next hour and a half, several different tactical units arrived at the scene and at 6:0 5 a.m . the T.E.A.M.S. Unit m oved the Ballistics Engineered Arm ored Counter Attack Truck (“BEARCAT”) onto the front law of the residence. By 4:40 a.m . m em bers of CNT and TEAMS units were sum m oned to the scene. Id. at ¶121. By this 6 tim e a “battle plan” was form ed to show a “threat of overwhelm ing m ilitarytype force[.]” Id. at ¶120 . Several large black SUVs arrived and the officers present created a hard perim eter around the residence. Id. No one from Decedent’s fam ily was allowed to com m unicate with or approach Decedent, including Dorothy Brown who arrived after the BEARCAT. Id. at ¶¶10 210 3; ¶132. At this point, Decedent rem ained in the house and at approxim ately 7:30 a.m . several canisters of chem ical m unitions were sent into the house. Id. at ¶140 . Then, the Com plaint avers the following: State police Docum ents claim s that [Decedent] fired several shotgun rounds through this bedroom window over the BEARCAT at 7:36 a.m . Plaintiffs believe that if any such shots were fired, these were intended to introduce air into the bedroom to counteract the effects of the chem ical m unitions, which m ade the atm osphere in the residence unbreathable, so that [Decedent], fearing he would be shot by police if he left the residence, could stay in the residence[.]” Id. at ¶141. According to the Burlington County Medical Exam iners, Decedent took his own life and cause of death was confirm ed by a self-inflicted gunshot wound to the head. (Ex. A, Burlington County Medical Exam iner’s report; SAC ¶149). The Com plaint disputes this conclusion. Plaintiffs allege a num ber of claim s against State Defendants and the Mount Laurel Defendants stem m ing from the incident. 7 II. Pro ce d u ral H is to ry Plaintiffs filed their com plaint initial on or about October 25, 20 13. (Dkt. No. 1). However, the com plaint lacked a proper electronic signature and a signed com plaint was filed on February 27, 20 14. (Dkt. No. 3). On April 2, 20 14, Fuentes, McNulty, Wilson, and the Crisis Team filed a m otion to dism iss the com plaint. (Dkt. No. 12). On Novem ber 25, 20 14, Plaintiffs were ordered to file an am ended com plaint and did so on J anuary 20 , 20 15. (Dkt. Nos. 32, 41). On or about February 12, 20 15, State Defendants were served with a copy of the com plaint. State Defendants thereafter filed a m otion to dism iss. (Dkt. No. 93). On Decem ber 17, 20 15, Plaintiffs' were granted leave to file their Second Am ended Com plaint. (Dkt. No. 110 ). The claim s are as follows. COU N T I: VIOLATIONS OF FOURTH AMENDMENT SURVIVAL AND WRONGFUL DEATH PURSUANT TO 42 U.S.C. §1983 Against Defendants J ones; Orange; Rutkowski; Harty; Cresong; Colligan; Cribben; Modugno; Howard; Riedener; Dever; Pincus; Colligan; Palladino; Rudderow; And Police Officers J ohn Doe 1, J ohn Doe 2, J ohn Doe 3, J ohn Doe 4, J ohn Doe 5, J ohn Doe 6, J ohn Doe 7, J ohn Doe 8, J ohn Doe 9, And J ohn Doe 10 Of The Mount Laurel Township Police Departm ent; COU N T II: VIOLATIONS OF FOURTEENTH AMENDMENT SURVIVAL AND WRONGFUL DEATH PURSUANT TO 42 U.S.C. §1983 Against Defendants J ones; Orange; Rutkowski; Harty; Cresong; Colligan; Cribben; Modugno; Howard; Riedener; Dever; Pincus; Colligan; Palladino; Rudderow; And Police Officers J ohn Doe 1, J ohn Doe 2, J ohn Doe 3, J ohn Doe 4, 8 J ohn Doe 5, J ohn Doe 6, J ohn Doe 7, J ohn Doe 8, J ohn Doe 9, And J ohn Doe 10 Of The Mount Laurel Township Police Departm ent; COU N T III: VIOLATIONS OF FOURTH AMENDMENT SURVIVAL AND WRONGFUL DEATH PURSUANT TO 42 U.S.C. §1983 against Defendants Diperi, Palladino, Carp, Michigan, And Howard; COU N T IV: VIOLATIONS OF FOURTEENTH AMENDMENT SURVIVAL AND WRONGFUL DEATH PURSUANT TO 42 U.S.C. §1983 Against Defendants Diperi, Palladino, Carp, Michigan, and Howard; COU N T V: VIOLATIONS OF FOURTH AMENDMENT SURVIVAL AND WRONGFUL DEATH PURSUANT TO 42 U.S.C. §1983 against C.N.T. Unit Defendants; Defendants Dipaola, J ohn Doe No. 42, J ohn Doe 43, And J ohn Doe 44; T.E.A.M.S. Central Defendants; T.E.A.M.S. South Defendants; Defendants Botti, Bucchere, Poulton, Klagg, Perry, Fiorello, Stickel, And Lawyer; And Defendants J ohn Doe No. 45, J ohn Doe No. 46, J ohn Doe No. 47, J ohn Doe No. 48, J ohn Doe No. 49, And J ohn Doe No. 50 ; COU N T VI: VIOLATIONS OF FOURTEENTH AMENDMENT SURVIVAL AND WRONGFUL DEATH PURSUANT TO 42 U.S.C. §1983 against C.N.T. Unit Defendants; Defendants J ohn Doe No. 42, J ohn Doe No. 43, And J ohn Doe No. 44; T.E.A.M.S. Central Defendants; T.E.A.M.S. South Defendants; Defendants Botti, Bucchere, Poulton, Klagg, Perry, And Fiorello; And Defendants J ohn Doe No. 45, J ohn Doe No. 46, J ohn Doe No. 47, J ohn Doe No. 48, J ohn Doe No. 49, And J ohn Doe No. 50 ; COU N T VII: VIOLATION OF FOURTH AMENDMENT SURVIVAL AND WRONGFUL DEATH PURSUANT TO 42 U.S.C. §1983 against T.E.A.M.S. Centrial Defendants; T.E.A.M.S. South Defendants; Defendants Leone, Barlow, Hoppe, Georgesion, Carnival, Stojanov, Paret, Gorm an, J ohn Doe 39, J ohn Doe 40 , J ohn Doe 41, J ohn Doe. 42, J ohn Doe 43, J ohn Doe 44, J ohn Doe 45, J ohn Doe 46, J ohn Doe 47, J ohn Doe 48, J ohn 9 Doe 49, J ohn Doe 50 , Bucchere, Poulton, Klagg, Perry, Fiorello, J ones, Orange, Rutkowski, Harty, Cresong, Colligan, Deperi, Lake, And Palladino; COU N T VIII: CONSPIRACY TO VIOLATE FOURTH AMENDMENT SURVIVAL AND WRONGFUL DEATH PURSUANT TO 42 U.S.C. §1983 against C.N.T. UNIT Defendants; Defendants Crutchley, Dipaola, J ohn Doe No. 42, J ohn Doe No. 43, And J ohn Doe No. 44; T.E.A.M.S. Central Defendants; T.E.A.M.S. South Defendants; Defendants Botti, Bucchere, Poulton, Klagg, Perry, Fiorello, And Lawyer; And Defendants J ohn Doe No. 45, J ohn Doe No. 46, J ohn Doe No. 47, J ohn Doe No. 48, J ohn Doe No. 49, And J ohn Doe No. 5; COU N T IX: VIOLATION OF FOURTEENTH AMENDMENT SURVIVAL AND WRONGFUL DEATH PURSUANT TO 42 U.S.C. §1983 against T.E.A.M.S. Centrial Defendants; T.E.A.M.S. South Defendants; Defendants Leone, Barlow, Hoppe, Georgesion, Carnival, Stojanov, Paret, Gorm an, J ohn Doe 39, J ohn Doe 40 , J ohn Doe 41, J ohn Doe. 42, J ohn Doe 43, J ohn Doe 44, J ohn Doe 45, J ohn Doe 46, J ohn Doe 47, J ohn Doe 48, J ohn Doe 49, J ohn Doe 50 , Bucchere, Poulton, Klagg, Perry, Fiorello, J ones, Orange, Rutkowski, Harty, Cresong, Colligan, Deperi, Lake, And Palladino; COU N T X: MONELL CLAIM SURVIVAL AND WRONGFUL DEATH PURSUANT TO 42 U.S.C. §1983 against Mount Laurel Township and Chief Dennis A. Cribben In His Official Capacity; COU N T XI: WRONGFUL DEATH against All Defendants; COU N T XII: SURVIVAL ACTION PLAINTIFFS against All Defendants. The pending m otions to dism iss followed. 10 III. Stan d ard o f Re vie w Federal Rule of Civil Procedure 12(b)(6) allows a party to m ove for dism issal of a claim based on “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A com plaint should be dism issed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim . Fed. R. Civ. P. 12(b)(6). When deciding a m otion to dism iss pursuant to Rule 12(b)(6), ordinarily only the allegations in the com plaint, m atters of public record, orders, and exhibits attached to the com plaint, are taken into consideration. See U.S. Express Lines, Ltd., 281 F.3d at 388; Chester County Interm ediate Unit v. Pa. Blue Shield, 896 F.2d 80 8, 812 (3d Cir. 1990 ). It is not necessary for the plaintiff to plead evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). The question before the Court is not whether the plaintiff will ultim ately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (20 0 7). Instead, the Court sim ply asks whether the plaintiff has articulated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twom bly, 550 U.S. 544, 570 (20 0 7). 11 “A claim has facial plausibility4 when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (citing Twom bly, 550 U.S. at 556). “Where there are wellpleaded factual allegations, a court should assum e their veracity and then determ ine whether they plausibly give rise to an entitlem ent to relief.” Iqbal, 556 U.S. at 679. The Court need not accept “‘unsupported conclusions and unwarranted inferences,’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 20 0 7) (citation om itted), however, and “[l]egal conclusions m ade in the guise of factual allegations . . . are given no presum ption of truthfulness.” Wyeth v. Ranbaxy Labs., Ltd., 448 F. Supp. 2d 60 7, 60 9 (D.N.J . 20 0 6) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Kanter v. Barella, 489 F.3d 170 , 177 (3d Cir. 20 0 7) (quoting Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 20 0 5) (“[A] court need not credit either ‘bald assertions’ or ‘legal conclusions’ in a com plaint when deciding a m otion to This plausibility standard requires m ore than a m ere possibility that unlawful conduct has occurred. “When a com plaint pleads facts that are ‘m erely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlem ent to relief.’’” Id. 4 12 dism iss.”)). Accord Iqbal, 556 U.S. at 678-80 (finding that pleadings that are no m ore than conclusions are not entitled to the assum ption of truth). Further, although “detailed factual allegations” are not necessary, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlem ent to relief’ requires m ore than labels and conclusions, and a form ulaic recitation of a cause of action’s elem ents will not do.” Twom bly, 550 U.S. at 555 (internal citations om itted). See also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elem ents of a cause of action, supported by m ere conclusory statem ents, do not suffice.”). Thus, a m otion to dism iss should be granted unless the plaintiff’s factual allegations are “enough to raise a right to relief above the speculative level on the assum ption that all of the com plaint’s allegations are true (even if doubtful in fact).” Twom bly, 550 U.S. at 556 (internal citations om itted). “[W]here the well-pleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged-but it has not ‘shown’-‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Finally, “if a com plaint is subject to a Rule 12(b)(6) dism issal, a district court m ust perm it a curative am endm ent unless such an am endm ent would be inequitable or futile.” Great Western Mining & 13 Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 20 10 ) (internal citation and quotation om itted; em phasis added). IV. An alys is The Com plaint as drafted is, at tim es, replete with conjecture, speculation, and legal conclusions. In addition, it presents a case that appears to escalate from a “911” call response, to a suicide prevention, and then possibly to an active shooter scen ario without m uch explanation as to why, other than challenges to the m istaken and/ or fraudulent accounts by the police. To accom plish this, Plaintiffs inartfully weave portions of certain police docum ents for the dual purpose of setting certain tim elines and then challenging the contents therein in a m anner that attem pts to discount the narrative. In other words, the Com plaint is drafted as an opposition to the police reports. Further com plicating m atters is that the Defendants’ prim ary grounds for attack sound in argum ents which lean toward sum m ary judgm ent. This is understandable as the reports attached to the m oving brief suggest different facts than those set forth in the Com plaint. Against the backdrop of reports, Defendan ts forcefully argue that Plaintiffs 14 have distorted the tim eline and left out vital inform ation contained in the m ultiple police reports.5 According to Defendants, the series of events, particularly that Decedent discharged a shot when his brother was in the house and then later shot at police before Defendants discharged chem ical m unitions, changes the context of the police response as objectively reasonable and worthy of qualified im m unity. Moreover, Defendants state that Plaintiffs leave a lot of inform ation out of the Com plaint. Thus, on these m otions to dism iss, the Court is left to consider what appears to be claim s plead in the Com plaint that m ay be predicated upon loose facts and vulnerable to sum m ary judgm ent. As discussed at the hearing, the Complaint fails to state whether the Defendants are being sued in both their individual and personal capacities. To the extent claim s are brought in their official capacities, Plaintiffs agree that these claim s are dism issed as it is well established that the state A police report and a medical examiner’s report are attached as exhibits to State Defendants’ moving brief and Plaintiffs appear to refer to portions of these documents does not rely on the documents in support of their case. See SAC ¶¶ 86 102 (References to Orange’s narrative, dispatch, Burlington County Central Communications). In an attempt to place the alleged overreaching by the police into context, the Complaint attempts to distinguish facts in certain police documents from those plead. In this regard, Defendants’ argument that the Complaint relies on these documents misses the mark as the Complaint does not rely on the documents. Compare City of Roseville Emples. Ret. Sts. v.EnergySolutions, Inc., 814 F.Supp.2D 395, 425 (Sept. 30, 2011 S.D.N.Y) (“when the plaintiffs' allegation is refuted by the document on which it relies, it cannot be considered plausible.") (citation omitted). Instead, it attempts to challenge the contents of these documents. 5 15 entities and state em ployees are not “persons” am enable to suit under 42 U.S.C.§ 1983. The Court will address the rem aining issues in turn. A. [ 119 ] State D e fe n d an ts ’ Mo tio n to D is m is s th e Se co n d Am e n d e d Co m p lain t The State Defendants raise several points in favor of dism issal. The argum ents are generalized and do not follow each count as plead in the Second Am ended Com plaint. Plaintiff's Constitutional claim s are governed by Title 42 U.S.C. § 1983, which provides a civil rem edy against any person who, under color of state law, deprives another of rights protected by the United States Constitution. See Collins v. City of Harker Heights, 50 3 U.S. 115, 120 , 112 S.Ct. 10 61, 117 L.Ed.2d 261 (1992). Any analysis of 42 U.S.C. § 1983 should begin with the language of the statute: Every person who, under color of any statute, ordinance, regulation, custom , or usage, of any State or Territory or the District of Colum bia, 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 im m unities 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. See 42 U.S.C. § 1983. As the above language m akes clear, Section 1983 is a rem edial statute designed to redress deprivations of rights secured 16 by the Constitution and its subordinate federal laws. See Baker v. McCollan, 443 U.S. 137, 145 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). By its own words, therefore, Section 1983 “does not ... create substantive rights.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 20 0 6) (citing McCollan ). To state a cognizable claim under Section 1983, a plaintiff m ust allege a “deprivation of a constitutional right and that the constitutional deprivation was caused by a person acting under the color of state law.” Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 20 0 8) (citing Kneipp v. Teder, 95 F.3d 1199, 120 4 (3d Cir. 1996)). Thus, a plaintiff m ust dem onstrate two essential elem ents to m aintain a claim under § 1983:(1) that the plaintiff was deprived of a “right or privileges secured by the Constitution or the laws of the United States” and (2) that plaintiff was deprived of her rights by a person acting under the color of state law. William s v. Borough of West Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989). There is no dispute that the Defendants were acting under color of state law. Defendants’ argum ents in favor of dism issal are predicted upon the fact that Plaintiff has failed to plead a constitutional violation. To state a claim for false arrest or im proper seizure under the Fourth Am endm ent, a plaintiff m ust establish: (1) that there was an arrest; and (2) 17 that the arrest was m ade without probable cause. See Grom an v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995); Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir. 1988 ). In California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991), the Suprem e Court explained that “[a]n arrest requires either physical force ... or, where that is absent, subm ission to the assertion of authority.” (em phasis in original). A seizure occurs “if, in view of all the circum stances surrounding the incident, a reasonable person would have believed that he was not free to leave.” I.N.S. v. Delgado, 466 U.S. 210 , 215, 10 4 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984), (internal quotations om itted). “Only when the officer, by m eans of physical force or show of authority, has in som e way restrained the liberty of a citizen m ay we conclude that a seizure has occurred.” Florida v. Bostick, 50 1 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) (internal quotation m arks om itted); see also Berg v. Cnty. of Allegheny, 219 F.3d 261, 269 (3d Cir. 20 0 0 ) (“A person is seized for Fourth Am endm ent purposes only if he is detained by m eans intentionally applied to term inate his freedom of m ovem ent.”). Here, the Com plaint alleges that Decedent was arrested and/ or seized by the Defendants’ m ilitaristic show of authority. “[T]he test for existence 18 of a ‘show of authority’ is an objective one: not whether the citizen perceived that [s]he was being ordered to restrict [her] m ovem ent, but whether the officer's words and actions would have conveyed that to a reasonable person.” Hodari D., 499 U.S. at 626; United States v. Sm ith, 575 F.3d 30 8, 313 (3d Cir. 20 0 9); see also United States v. Brown, 448 F.3d 239, 245 (3d Cir. 20 0 6). There are several factors courts consider to determ ine whether, under the circum stances, an arrest or seizure has occurred, including “the threatening presence of several officers, the display of a weapon by an officer, som e physical touching of the person of the citizen, or the use of language or tone of voice indicating that com pliance with the officer's request m ight be com pelled.” United States v. Mendenhall, 446 U.S. 544, 554, 10 0 S.Ct. 1870 , 64 L.Ed.2d 497 (1980 ); see also United States v. Drayton, 536 U.S. 194, 20 4, 122 S.Ct. 210 5, 153 L.Ed.2d 242 (20 0 2) (concluding that the defendant was not seized because “[t]here was no application of force, no intim idating m ovem ent, no overwhelm ing show of force, no brandishing of weapons, no blocking of exits, no threat, no com m and, not even an authoritative tone of voice”). A claim for excessive force claim is reviewed under an objective reasonableness standard. Graham v. Connor, 490 U.S. 38 6, 397, 10 9 S.Ct. 1865, 1872, 10 4 L.Ed.2d 443 (1989). Under this standard, the Court m ust 19 pay “careful attention to the facts and circum stances of each particular case, including the severity of the crim e at issue, whether the suspect poses an im m ediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attem pting to evade arrest by flight.” Id. at 396, 10 9 S.Ct. at 1872; see also Grom an, 47 F.3d at 634. “The calculus of reasonableness m ust em body allowance for the fact that ‘police officers are often forced to m ake split-second judgm ents—in circum stances that are tense, uncertain, and rapidly evolving—about the am ount of force that is necessary in a particular situation.’ ” Id. at 396– 97, 10 9 S.Ct. at 1871– 73; see also Sharrar v. Felsing, 128 F.3d 8 10 , 820 – 21 (3d Cir. 1997). Finally, Defendants claim they are entitled to qualified im m unity, which attaches to all law enforcem ent officials who “reasonably but m istakenly” conclude that their conduct com ports with the requirem ents of the Fourth Am endm ent. Hunter v. Bryant, 50 2 U.S. 224, 227, 112 S.Ct. 534, 536 (1991). Qualified im m unity m ay be considered on a m otion to dism iss and in that posture a court considers whether the Com plaint sets forth claim s that “the officer's conduct violated a constitutional right” and “whether the right was clearly established.” Saucier v. Katz, 533 U.S. 194, 20 1 (20 0 1). It follows that the officer's subjective beliefs about the legality of his or her conduct generally “are irrelevant.” Anderson, 483 U.S. at 641, 20 10 7 S.Ct. at 30 40 ; see also Grant v. City of Pittsburgh, 98 F.3d 116, 123– 24 (3d Cir. 1996); Sharrar, 128 F.3d at 826 (3d Cir. 1997) Having ruled on som e of the claim s during the hearing, the Court will address the State Defendants’ rem aining argum ents in turn, and construes the facts as plead in the Com plaint, and inferences therefrom , in Plaintiffs' favor. 1. Plaintiffs’ Claim s Against State Defendants Should Be Dism issed With Prejudice Because They Do Not Allege Specific Facts Establishing Personal Involvem ent. State Defendants claim that the Com plaint fails to sufficiently allege that individual officers personally violated Decedent’s constitutional rights. While the Com plaint is thin as to the specific involvem ent of each of the nearly 75 officers at the scene, it sufficiently sets forth the conduct of each officer. See Parratt v. Taylor, 451 U.S. 527, 537 n. 3, 10 1 S.Ct. 190 8, 1913 n. 3, 68 L.Ed.2d 420 (1981); Ham pton v. Holm esburg Prison Officials, 546 F.2d 10 77, 10 82 (3d Cir. 1976). Viewing the facts as plead in the com plaint as true, there is a question as to whether any police response was necessary, and even if it was, the nature of the response raises questions. If Harry Brown is to be believed and the facts are as plead, the police were assured that all was well and that no shot was fired by Decedent when Harry went to check on him . In addition, the com plaint does not set forth what Radano 21 told the police with respect to Decedent or whether there was further conversation. Under the set of facts proffered in the Com plaint, it does not appear that Decedent “barricaded” him self in the house or was uncooperative with the initial officers. As plead, the Com plaint does not infer that a stand-off began or that Decedent was uncooperative at the tim e the initial officers responded to the 911 call. A defendant in a civil rights action m ust have personal involvem ent in the alleged wrongs. Parratt v. Taylor, 451 U.S. 527, 537 n. 3, 10 1 S.Ct. 190 8, 1913 n. 3, 68 L.Ed.2d 420 (1981). Personal involvem ent here is sufficiently plead through the allegations that each officer contributed to the situation. Discovery will shape the actions, or inactions, of each officer. As plead the Com plaint is sufficiently particular to each officer’s involvem ent. Rode v. Dellarciprete, 845 F.2d 1195, 120 7 (3d Cir. 1988 ). Plaintiffs’ allegation that State Defendants Barlow, Carnival, Georgeson, Gorm an, Leone, Paret, and Stojanov, as m em bers of the Crisis Unit, stayed in a com m and vehicle and relayed responses to negotiators and advice to Decedent to “thr[o]w the weapons in the residence out the window" is sufficient to allege a claim of arrest, excessive force, and seizure by show of force. SAC ¶114; ¶130 . Also, to the extent that State Defendants DiPaola and Hoppe attem pted to get Decedent to exit the residence, and 22 relayed requests that Decedent throw his firearm s outside of the window are sufficient when coupled with the threats m ade by at State Defendants, Botti, Bucchere, Fiorello, Klagg, Perry, Poulton, Stickel to Decedent threatening him that if he did not com e out of the residence “we have to com e in, you know what is going to happen[.]” Id. These can reasonably be construed as a verbal threat of serious harm sufficient to allege a claim of unlawful arrest. Likewise, Plaintiffs allege som e of the these officers shot gas canisters into the house before Decedent allegedly fired shots from the residence.6 Id. at ¶140 . All of these claim s, when taking the facts in the Com plaint as true adequately allege a plausible claim that Defendants unlawfully arrested Decedent by "m aking an overwhelm ing show of m ilitary-type force" and by "m aking an arrest of the decedent without probable cause by firing large am ounts of m ilitary grade chem ical m unitions into the decedent's residence." Id. at ¶188a, ¶188c. With respect to State Defendants Lawyer, Gallagher, Kerstetter, Logan, Poskay, Reader, Walsh, these officers were present part of the TEAMS Central Unit. Id. ¶10 9. These individuals followed a robot that entered house after Decedent refused to com e out because he was afraid. Confusingly, Plaintiffs argue that Decedent never fired at police or from the residence. However, Plaintiffs then theorize that if he did fire shots, they were not aimed at police, but to open the window so he could breathe and release the chemicals from the room. This is conjecture and speculation and the Court will construe the Complaint to allege that Decedent never fired any shots while in the residence at any time. 6 23 Id. at ¶141, ¶147. These individuals corrected the robot that was used to relay photos of the interior. Given that the tim ing of the entry is unclear, this claim s stands. Also part of the T.E.A.M.S. Central Unit, State Defendants D'Angelo, Byrne, Fowler, Hendrickson, Graeber were located in the BEARCAT. Id. at ¶10 9, ¶122, ¶147. These individuals also unsuccessfully attem pted to use a battering ram to enter the residence. Id. at ¶141, ¶147. D'Angelo is alleged to be one of the defendants who developed a tactical plan to gain entry in to the barricaded residence. Id. ¶118. The officers identified by their badge num bers, 530 5, 5617, 60 87, 6122, 6274, 6581, 6217, are alleged m em bers of the T.E.A.M.S. South Unit. The Com plaint alleges that these officers were on the scene, possibly spoke on a loud speaker, and/ or m ay have launched a gas canister into the residence. Id. at ¶111. Such speculation is insufficient to assert a cognizable claim . With respect to State Defendants Crutchley, Vega, and Walsh, Plaintiffs alleged these officers were a sniper/ scout team that were deployed after Decedent fired num erous shotgun rounds at officers.7 Id. at Again, the Complaint references the alleged shots fired by Decedent for purposes of timing, but disputes that shots were fired. 7 24 ¶110 , ¶142. Such a show of force is sufficient, under these facts to state a cognizable claim of arrest, seizure and excessive force. Notwithstanding the official Burlington County Coroner's determ ination that Decedent's cause of death was from a self-inflicted gunshot wound, Plaintiffs contend that Decedent "m ay have been killed by sniper fire." Id. at ¶149; Ex. A. However, Plaintiffs offer nothing but speculation. See Rode, supra, 845 F.2d 1195. To the extent the actions of the officers caused the death of Decedent by any m eans, Plaintiffs’ claim m ay be construed under the state created danger theory, as discussed infra. The Court notes that under the facts as plead, the decision to em ploy the tactical team s and the overwhelm ing police response to a m ental health concern, which was ultim ately allayed, raises questions over the scope and severity of the police response and the reasonableness of the decision to em ploy the tactical units. See Estate of Sm ith v. Marasco, 318 F.3d 497, 516 (3rd Cir. 20 0 3) (discussing Estate of Escobedo v. Martin, 70 2 F.3d 388 (7th Cir. 20 12) (“The ultim ate question [was] whether the decision to activate [the SWAT team ] and [the SWAT team 's] subsequent actions were objectively reasonable responses to this situation.”) As plead, the Com plaint sets for a cognizable claim of excessive force, albeit one that m ay prove fragile on a sum m ary judgm ent m otion. See Estate of Escobedo v. 25 Hunter, No. 1:0 5-CV-424-TLS, 20 11 WL 2133786, at *5 (N.D. Ind. May 27, 20 11) (considering the viability of a claim of excessive force where the use “em ploym ent of a tactical solution when an individual is suicidal, arm ed with a firearm , high on drugs, not m aking threats against anyone but him self, but also not progressing toward a peaceful resolution.”) Po in t II: Plaintiffs Claim s Of Unlawful Entry And Unreasonable Seizure Must Be Dism issed Has They Have Failed To State A Claim Against State Defendants Upon Which Relief Can Be Granted For the sam e reasons as stated above, Plaintiffs sufficiently allege claim s of unreasonable seizure and unlawful entry. Under a totality of the circum stances review, Plaintiffs allege sufficient facts that dem onstrate that Decedent was unfree to m ove and a seizure occurred. Bostick, 50 1 U.S. at 437, 111 S.Ct. 2382; United States v. Crandell, 554 F.3d 79, 86 (3d Cir. 20 0 9). J am es v. City of Wilkes-Barre, 70 0 F.3d 675, 680 (3d Cir. 20 12) Based on the inform ation in the com plaint, the facts show that Defendants effectuated a warrantless arrest and/ or seizure absent exigent circum stances. SAC at ¶188 a-d. Given the long duration of the incident, particularly the am ount of tim e that passed between the 911 call and the sum m oning of support forces, Defendants had am ple tim e to get a warrant. Id. at ¶147a-f. The Com plaint alleges the police responded to a concern over the health of the Decedent an d concerns about a gun that were 26 retracted and knowing that the gun Decedent did once possess had been rem oved from the residence. Against this factual backdrop, “when a SWAT team surrounds a residence with m achine guns pointed at the windows and the persons inside are ordered to leave the house . . . . an arrest has undoubtably occurred.” Sharrar, 128 F.3d at 819– 20 . Much like the facts in Sharrar, here “[th]ere was a clear sh ow of physical force and assertion of authority. No reasonable person would have believed that he was free to rem ain in the house. We hold that un der these circum stances the arrests occurred[.] Id. (citing United States v. Al– Azzawy, 784 F.2d 890 , 893 (9th Cir.1985) (arrest occurred in the hom e when police surrounded the residence and ordered the person out with a bullhorn), cert. denied, 476 U.S. 1144, 10 6 S.Ct. 2255, 90 L.Ed.2d 70 0 (1986); United States v. Maez, 872 F.2d 1444, 1450 (10 th Cir. 1989) (where SWAT team surrounded trailer with rifles pointed and ordered suspect to exit, arrest occurred in hom e despite lack of physical entry). Under these circum stances as plead, “the police were required to have secured an arrest warrant[.]” Id. (citing Payton v. New York, 445 U.S. 573, 590 , 10 0 S.Ct. at 1382 (1980 ). 27 POIN T III: Plaintiffs Claim s Of Excessive Force Must Be Dism issed Has They Have Failed To State A Claim Against State Defendants Upon Which Relief Can Be Granted Plaintiffs' claim that Decedent’s cause of death was not suicide, but caused by a sniper’s bullet. In this regard, Plaintiffs’ claim contradicts the Burlington County Medical Exam iner’s conclusion that the m anner of death was self-inflicted gunshot wound to the head. Such a contradiction has the force of weakening plausibility, however, to the extent the facts are taken as true on a m otion to dism iss, Defendants’ argum ent is m ore appropriately m ade on a m otion for sum m ary judgm ent. POIN T IV: Plaintiffs Have Failed To State A Claim Under The Fourteenth Am endm ent Against State Defendants Upon Which Relief Can Be Granted Defendants m ove to dism iss Plaintiffs’ claim s insofar as they seek rem edy pursuant to a state created danger theory of liability. Plaintiffs inartfully plead a claim alleging a substantive due process violation under the Due Process Clause of the Fourteenth Am endm ent. U.S. Const. am end. XIV, § 1 (“nor shall any State deprive any person of life, liberty, or property, without due process of law”). There is an indisputable “constitutional liberty interest in personal bodily integrity that is protected by the Due Process Clause of the Fourteenth Am endm ent.” Phillips v. County of Allegheny, 515 F.3d 224, 28 235 (3d Cir. 20 0 8). This liberty interest is protected because “[t]he touchstone of due process is protection of the individual against arbitrary action of governm ent.” Stolzer v. City of Philadelphia, 20 0 3 WL 22299251, at *2 (E.D.Pa. Sept. 30 , 20 0 3) (citing Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). Notwithstanding that interest, the Due Process Clause places no positive obligation on the State to ensure the safety of, or otherwise affirm atively protect, its citizens. Phillips, 515 F.3d at 235 (citing DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 196– 197, 10 9 S.Ct. 998, 10 3 L.Ed.2d 249 (1989)) (rejecting the view that the Constitution im poses “affirm ative obligations” on the State, and holding that “the State cannot be held liable under the [Due Process] Clause for injuries that could have been averted had it chosen to provide them .”). The reasoning that inform s this conclusion is the original intent of the Due Process Clause. See DeShaney, 489 U.S. at 196, 10 9 S.Ct. 998 (observing that the Due Process Clause was designed “to protect the people from the State, not to ensure that the State protected them from each other.”); accord J ackson v. City of J oliet, 715 F.2d 120 0 , 120 3 (7th Cir.1983) (“The Fourteenth Am endm ent ... sought to protect Am ericans from oppression by state governm ent, not to secure them basic governm ental services.”). 29 Significantly, the Third Circuit recognized an exception to this rule when it adopted the state created danger theory. See Kneipp, 95 F.3d at 1211 (holding “that the state created danger theory is a viable m echanism for establishing a constitutional claim un der 42 U.S.C. § 1983.”). Under that theory, “the state m ay assum e responsibility for the safety of an individual for whom it affirm atively creates or enhances a risk of danger.” Kaucher, 455 F.3d at 431 (em phasis added). Four elem ents are required to allege a cognizable claim :(1) the harm ultim ately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant's acts, or a m em ber of a discrete class of persons subjected to the potential harm brought about by the state's actions, as opposed to a m em ber of the public in general; and (4) a state actor affirm atively used his or her authority in a way that created a danger to the citizen or that rendered the citizen m ore vulnerable to danger than had the state not acted at all. Id. (citing Bright v. Westm oreland County, 443 F.3d 276, 28 1 (3d Cir. 20 0 6)); see also Caissie v. City of Cape May, 619 F. Supp. 2d 110 , 117– 18 (D.N.J . 20 0 9). Defendants, without conceding that Plaintiffs have sufficiently alleged any of the elem ents established in Bright, argue that there is no evidence to 30 satisfy the first, second or fourth elem ents of the test. Although Defendants’ argum ents m ay carry force on sum m ary judgm ent, under the facts as plead in the Com plaint on a m otion to dism iss, the Court finds that the elem ents are sufficiently plead. Specifically, giving the Plaintiff the benefit of each inference and factual certainty, if the police response was m ade in an attem pt to aid a potentially suicidal victim whose well-being was assured by his brother, then a plausible claim that is "conscious shocking" is alleged. Schieber v. City of Philadelphia, 320 F.3d 40 9, 417 (3rd Cir. 20 0 3). Given the alleged tim eline of events, which includes the introduction of chem ical m unitions before any alleged gunfire by Decedent, Plaintiffs have alleged the State Defendants “perform ed an affirm ative” act rather than m ere inaction. DeShaney, 489 U.S. at 282. Moreover, there is the alleged relationship between the state and the plaintiff and the opportunity for harm to the Decedent have been sufficiently plead. Morse v. Lower Merion School District, 132 F.3d 90 2 (3d Cir. 1997). The Court note that while the Com plaint is at tim es speculative, conclusory, inconsistent with facts proffered by Defendants, and, therefore vulnerable to attack, such challenges m ust be on sum m ary judgm ent. On this m otion to dism iss, the Court finds that Plaintiffs have articulated “enough facts to state a claim to relief that is plausible on its face” under a 31 state created danger theory. Twom bly, 550 U.S. at 570 . For these reasons, State Defendants’ m otion is denied in part. B. [ 12 2 ] Mo u n t Lau re l D e fe n d an ts ’ Mo tio n to D is m is s th e Se co n d Am e n d e d Co m p lain t Mt. Laurel generally adopts the sam e argum ents m ade by the State Defendants with respect to lack of specificity as to individual action. In addition, Mt. Laurel argues that the Monell claim fails because Plaintiffs do not identify any policies that contributed to Decedent’s death. 1. Mt. Lau re l Mo n e ll Claim In Count X of the Com plaint, Plaintiffs’ claim pursuant to Monell v. Departm ent of Social Services, 436 U.S. 658 (1978), will be dism issed for failure to specify the custom , policy, or practice that caused Decedent’s injury. Mount Laurel is a m unicipality. A m unicipality is not liable under 42 U.S.C. § 1983 on a respondeat superior theory. Monell, 436 U.S. 691. However, a governm ent entity m ay be liable for its agent's actions upon a dem onstration that a policy or custom of the m unicipality caused, or was a “m oving force” behind, the alleged violation of Plaintiff's rights. Kentucky v. Graham , 473 U.S. 159, 166, 10 5 S.Ct. 30 99, 87 L.Ed.2d 114 (1985) (quoting 32 Polk County v. Dodson, 454 U.S. 312, 326, 10 2 S.Ct. 445, 70 L.Ed.2d 50 9 (1981)); Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). Thus, in order to prevail against the governm ent entity, “[a] plaintiff m ust identify the challenged policy, attribute it to the city itself, and show a causal link between execution of the policy and the injury suffered.” Losch v. Parkesburg, 736 F.2d 90 3, 910 (3d Cir. 1984). Further, a plaintiff m ust show that the m unicipality acted with “deliberate indifference” to the known policy or custom . Canton v. Harris, 489 U.S. 378, 388, 10 9 S.Ct. 1197, 10 3 L.Ed.2d 412 (1989). “A showing of sim ple or even heightened negligence will not suffice.” Board of County Com m 'rs of Bryan County, Okl. v. Brown, 520 U.S. at 397, 40 7 (1997). Courts have created a “two-path track to m unicipal liability... depending on whether the allegation is based on m unicipal policy or custom .” Mulholland v. Gov't Cnty. of Berks, 70 6 F.3d 227, 237 (3d Cir. 20 13) (quoting Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)). A policy is m ade “when a decisionm aker possess[ing] final authority to establish m unicipal policy with respect to the action issues a final proclam ation, policy or edict.” Kneipp, 95 F.3d at 1212 (quoting Pem baur v. City of Cincinnati, 475 U.S. 469, 481, 10 6 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion)). A custom is an act “that has not been form ally 33 approved by an appropriate decision m aker,” but that is “so widespread as to have the force of law.” Bryan County v. Brown, 520 U.S. 397, 40 4, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Municipalities are not liable for acts of police officers unless a m unicipal policy or custom am ounts to a “deliberate indifference to the rights of people with whom the police com e into contact.” Carswell v. Borough of Hom estead, 381 F.3d 235, 244 (3d Cir. 20 0 4) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)). Deliberate indifference m eans that” 'a deliberate choice to follow a course of action is m ade from am ong various alternatives' by city policym akers.” Harris, 489 U.S. at 389 (quoting Pem baur, 475 U.S. at 483-84 (1986) (plurality) (Brennan, J .)). Thus, a m unicipality's inadequate training or supervision does not give rise to liability unless city policym akers are “on actual or constructive notice that a particular om ission in their training program causes city em ployees to violate citizens' constitutional rights ... [and they] choose to retain that program .” Connick v. Thom pson, 131 S.Ct. 1350 , 1359- 1360 (20 11). Sim ilarly, widespread behavior by police officers does not am ount to a m unicipal custom unless there is “knowledge and acquiescence by the decisionm aker.” McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 20 0 9) (citing Watson v. Abington Tp., 478 F.3d 144, 156 (3d Cir. 20 0 7)) 34 (further citation om itted). Finally, the plaintiff m ust also show that the alleged policy or custom was the proxim ate cause of the injuries suffered. Watson, 478 F.3d at 156 (citing Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990 ) (further citation om itted)). Here, the Com plaint sim ply alleges the following: Defendants, Dennis A. Cribben, in his official capacity, and Mount Laurel Township, directly and proxim ately caused the violations of plaintiffs’ decedent, David K. Brown’s, Constitutional rights by the defendant Mount Laurel Township police officers, including Defendant Cribben, acting in their individual capacities through the Township's custom s and practices whereby the Township with deliberate indifference tolerated and perm itted a pattern of deprivation of Fourth and Fourteenth Am endm ent rights by its police officers, failed to m aintain proper system for and practice of review, and failed to properly sanction or discipline police officers, including the individual Mount Laurel Police Officer defendants in this case, for violations of the constitutional rights of citizens under the Fourth Am endm ent (as applied to the states through the Fourteenth Am endm ent) to be free from unreasonable seizure and excessive force and to freedom from deprivation of their life, liberty, and property without due process of the laws under the Fourteenth Am endm ent, with the result that police officers from Mount Laurel Township were encouraged to believe that they could violate the rights of persons such as the plaintiff with im punity. (SAC ¶212). To survive a m otion for to dism iss, Plaintiffs “m ust identify a custom or policy, and specify what that custom or policy was.” McTernan, 564 F.3d at 658 . “[A] single incident of unconstitutional 35 activity is not sufficient to im pose liability under Monell [.]” City of Oklahom a City v. Tuttle, 471 U.S. 80 8, 823-24, 10 5 S.Ct. 2427, 85 L.Ed.2d 791 (Connick, 131 S.Ct. at 1359- 1360 ; see Ingram v. Twp. of Deptford, 911 F.Supp.2d 28 9, 30 2 (D.N.J . 20 12) (finding plaintiff's Monell claim deficient where the com plaint cited an unconnected past incident of excessive force.). Plaintiffs’ generalized claim and form ulaic recitation of the elem ents of a claim under Monell fall woefully short of the pleading standard and Count X is dism issed without prejudice. 2. In d ivid u al D e fe n d an ts The Second Am ended Com plaint alleges that Officers J ones, Orange Rutkowski, Harty, Cresong and Colligan personally arrested the decedent by creating a hard perim eter. Plaintiffs, in Count III, add DiPeri, Palladino, Carp, Michigan, and Howard to this cause of action and factual claim . For the sam e reasons articulated with respect to the State Defendants, Mount Laurel Defendants’ m otion to dism iss is denied. Plaintiffs’s claim s against Cribben, Modugno, Howard, Riedener, Dever, Pincus, Palladino, Rudderow and J ohn Doe Officers 1-9, for ordering the call to the TEAMS unit lacks specificity. Plaintiffs’ failure to 36 set forth how each officer violated the Decedent's constitutional rights is fatal to the claim s with respect to these defendants. V. Co n clu s io n For the reasons stated on the record during the hearing and those set forth above, State Defendants’ Motion to Seal Docum ents Containing Medical Records and Autopsy Reports [118] is granted, State Defendants’ Motion to Dism iss the Second Am ended Com plaint is denied in part [119], Mount Laurel Defendants’ Motion to Dism iss the Second Am ended Com plaint is granted and denied in part [122], Plaintiff’s Motion to Dism iss Mount Laurel Township Defendants' Motion to Dism iss Second Am ended Com plaint is denied [124], and Plaintiffs’ Motion for Leave to file a surreply [129] is dism issed as m oot. An appropriate Order shall issue. Dated: Septem ber 21, 20 16 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 37
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
