THE ESTATE OF MATTHEW MCKLOSKEY et al v. FRANKLIN TOWNSHIP et al, No. 1:2015cv04171 - Document 122 (D.N.J. 2017)

Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 6/15/2017. (tf, )
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THE ESTATE OF MATTHEW MCKLOSKEY et al v. FRANKLIN TOWNSHIP et al Doc. 122 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY ESTATE OF MATTHEW MCKLOSKEY et al., Plaintiffs, v. FRANKLIN TOWNSHIP, et al., Defendants. : : : : : : : : : : : Hon. J oseph H. Rodriguez Civil Action No. 15-4171 OPIN ION These m atters com e before the Court on m otions to Dism iss the Third Am ended Com plaint, pursuant to Fed. R. Civ. P. 12 (b)(6), filed by Defendants Gloucester County Prosecutor Sean Dalton and Gloucester County. The Court has considered the written subm issions of the parties, without oral argum ent. For the reasons that follow, the Defendants’ m otions are granted. I. Backgro u n d The following facts are alleged in the Third Am ended Com plaint, which sets forth sim ilar claim s as the previous two com plaints. The underlying facts of this case are tragic. Matthew McKloskey, aged 10 , and two friends were crossing Delsea Drive (also known as New J ersey State Route 47) in Franklin Township, New J ersey, around 7:0 0 p.m . (Am end. Com pl. ¶¶ 12, 16) It was dark outside and it was raining. (Id. ¶¶ 12, 20 ) Defendant Officer Locilento, “who had fairly recently been hired by Franklin Township,” “was responding to a nonem ergency call that was less than three m iles away.” (Am end. Com pl. ¶¶ 18, 20 ) Locilento was driving “around 80 [m iles per hour] without lights and sirens” when he struck Matthew with 1 Dockets.Justia.com his car. (Id. ¶ 21) Very shortly thereafter, Matthew died as a result of the injuries he sustained. (Id. ¶¶ 28, 10 3). On Septem ber 7, 20 16, the Court issued an Opinion and Order granting Plaintiff leave to file an Am ended Com plaint in response to the Court’s ruling that, as plead, the Com plaint Defendants. Plaintiff subsequently filed a Second and then a Third Am ended Com plaint. failed to plead sufficient facts to plausibly support a finding of liability against the m oving Moving Defendants seek dism issal of the Third Am ended Com plaint on several grounds, with all parties in agreem ent that the claim s against Defendant Gloucester County are derivative of the actions of Defendant Dalton.1 As a result, the argum ents advanced by Defendant Dalton in support of dism issal also form the basis for Defendant Gloucester County’s m otion. Dalton m oves for dism issal on grounds of Eleventh Am endm ent im m unity, failure to state a claim under 42 U.S.C. §1983, and, alternatively, qualified im m unity. II. Stan d ard o f Re vie w Defendants m ove for dism issal on grounds of Eleventh Am endm ent im m unity, failure to state a claim , and qualified im munity. A m otion to dism iss based on Eleventh Am endm ent, or sovereign im m unity, is appropriate under both Rule 12(b)(1) and Rule 12(b)(6). Carter v. City of Philadelphia, 181 F.3d 339, 343 (3d Cir. 1999) (considering im m unity under 12(b)(6)); Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690 , 693 n. 2 (3d Cir .1996) (considering im m unity under 12(b)(1)). Defendants m ove pursuant to Fed. R. Civ. P. 12 (b) (6). Defendants initially moved to dismiss the Second Amended Complaint. After a change in counsel, Plaintiffs were granted leave to amend and filed the Third Amended Complaint. The arguments in favor of dismissal as to the Second Amended Complaint are germane to the Third Amended Complaint because the claims against Dalton are identical and the Third Amended Complaint adopts the pleading set forth in the Second Amended Complaint. As a result, the arguments in favor of dismissal are relevant to the Third Amended Complaint and the Court will consider the motion as it relates to the Third Amended Complaint. 1 2 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.1 See 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). “A claim has facial plausibility2 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 1 “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 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 383, 388 (3d Cir. 20 0 2) (internal quotation m arks and citations omitted) (em phasis deleted). Accord Lum v. Bank of Am ., 361 F.3d 217, 221 n.3 (3d Cir. 20 0 4) (citations om itted). Here, Plaintiffs’ Com plaint includes several references to exhibits attached to the Com plaint and the Court will consider these docum ents without converting the motion to dismiss into a summ ary judgment m otion. In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 28 0 , 287 (3d Cir. 1999). 2 This plausibility standard requires m ore than a mere 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. 3 are well-pleaded 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. 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)). III. An alys is Defendants’ m otions to dism iss will be granted because Dalton is entitled to Eleventh Am endm ent im m unity and because the Third Am ended Com plaint fails to state a claim under 42 U.S.C. § 1983 against Dalton. The Eleventh Am endm ent provides: “The J udicial power of the United States shall not be construed to extend to any suit in law or equity, com m enced or prosecuted against one of the United States by citizens of another State or by Citizens or Subjects of any Foreign State.” U.S. Const. am end XI. The Eleventh Am endm ent incorporates a general principle of sovereign imm unity that bars citizens from bringing suits for dam ages against any State in federal court. Pennhurst State Sch. & Hosp. v. Halderm an, 465 U.S. 89, 10 0 -0 1 (1984). Sovereign im m unity extends to State agen cies and State officers, “as long as the state is the real party in interest.” Fitchik v. N.J . Transit Rail Operations, 873 F.2d 655, 659 (3d Cir. 1989). It does not extend to counties and m unicipalities. Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Bolden v. Southeastern Pa. Transp. Auth., 953 F.2d 80 7, 81314 (3d Cir. 1991) (“[A]lthough political subdivisions of a state, such as counties and 4 m unicipalities, fall within the term ‘State’ as used in the Fourteenth Am endm ent, political subdivisions are not ‘State[s]’ under the Eleventh Am endm ent.”). Som e entities m ay be entitled to im m unity, however, if deem ed an arm of the state. Febres v. Cam den Bd. of Educ., 445 F.3d 227, 229 (3d Cir. 20 0 6) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 , 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). The test to determ ine whether an entity is an arm of the state and therefore entitled to Eleventh Am endm ent im m unity is three-fold: (1) whether paym ent of a judgm ent resulting from the suit would com e from the state treasury, (2) the status of the entity under state law, and (3) the entity's degree of autonom y. See Chisolm v. McManim on, 275 F.3d 315, 323 (3d Cir. 20 0 1) (citing Fitchik, 873 F.2d at 229). The Third Circuit has repeatedly held that the m ost im portant factor is whether the paym ent of a judgm ent would com e from the state treasury. Chisolm , supra, at 323 (citing Carter v. City of Phila., 181 F.3d 339, 348 (3d Cir. 1999)). Significantly, because Eleventh Am endm ent im m unity is an affirm ative defense, the burden of proving applicability is on the party asserting it. See Carter, 181 F.3d at 347. In New J ersey, county prosecutors are em ployees of their respective Counties and not the State. See Edison v. Hyland, 156 N.J .Super. 137, 383 A.2d 714, 716 (N.J . Super. Ct. App. Div. 1978); In re Cam den Police Cases, No. CIV. 10 -4757, 20 11 WL 3651318, at *2 (D.N.J . Aug. 18, 20 11). However, the New J ersey Suprem e Court has held that a county prosecutor m ay be cloaked with sovereign im m unity even though the prosecutor is not an em ployee of the State. Wright v. State of New J ersey, 169 N.J . 422, 460 (20 0 1). In Wright, the New J ersey Suprem e Court held that, as to a county prosecutor’s entitlem ent to sovereign im m unity, the appropriate inquiry is “whether the function that the county prosecutors and their subordinates were perform ing during the alleged wrongdoing is a function that traditionally has been understood to be a State function and subject to State supervision in its execution.” Id. 5 When county prosecutors perform law enforcem ent and prosecutorial functions, “they act as agents of the State. . . and qualify[] as State em ployees under N.J .S.A. 59:1– 3 for the purpose of determ ining vicarious liability under the TCA. Wright, 169 N.J . at 462 (citing McAndrew v. Mularchuk, 33 N.J . 172, 193 (1960 ). Eleventh Am endm ent im m unity, however, does not extend to a county prosecutor’s perform ance of “adm inistrative tasks unrelated to their strictly prosecutorial functions, such as ... personnel decisions.” Id. at 462 (citing Colem an v. Kaye, 87 F.3d 1491, 1499 (3d Cir. 1996)). Adm inistrative functions are a function of the county. Id. “Training and policy decisions that require legal knowledge and discretion are related to prosecutorial functions and are unlike adm inistrative tasks concerning personnel.” Hyatt v. Cty. of Passaic, 340 F. App'x 833, 836– 37 (3d Cir. 20 0 9) (citing Van de Kam p v. Goldstein, 555 U.S. 335, 129 S.Ct. 855, 861– 62, 172 L.Ed.2d 70 6 (20 0 9)). Here, as to Defendant Dalton, the Third Am ended Com plaint alleges, exclusively, prosecutorial conduct. Only one claim specifically identifies Dalton in the title, Count I a Monell claim , the substance of which alleges Dalton acted “jointly and severally” with Defendant Franklin Township: through the Gloucester County Prosecutors [sic] Office, whether jointly or severally through it [sic] em ployees, agents and/ or any other party failed in it’s [sic] duty when if [sic] failed to properly train, m onitor, provide adequate supervision, and/ or m anage it’s [sic] em ployees on: a. The proper policies, practices and procedures in responding to non-em ergency calls. . . . . [.] b. The m onitoring of police officers whom it knew or should have known were suffering from em otional and/ or psychological problem s which im paired their ability to function as officers. c. The failure to identify and take rem edial, training or disciplinary action against police officers who were subject of prior civilian com plaints of m isconduct. D. Franklin Township and Sean Dalton, through the Gloucester County prosecutor’s Office, whether jointly or severally, as alleged in the Factual Allegations, violated the rights, privileges. . .[.] Pls.’ Thd. Am . Com pl. ¶ 30 (em phasis supplied). 6 In addition, Count VIII sets forth a Monell claim against Defendant Gloucester County alleging that the County, through the actions of Defendants Gloucester County Prosecutor Dalton, failed in their duties and violated Matthew McKloskey’s civil rights by: a. failing to establish policies, practices and procedures in responding to nonem ergency calls. Including, but not lim ited to, allowing com plete discretion to rookie officers as to their speed lim it, use of lights, use of sirens and related safety precautions to better be in control of their vehicle and/ or alert the general public as to their speed; and the failure to include policies and procedures related to the road conditions, weather, experience of the officer and type of neighborhood within which the officer is traveling. The policies and procedures developed by the defendants allowed the officers of defendant FRANKLIN TOWNSHIP, including defendant, NICHOLAS LOCILENTO, to act with reckless, callous, deliberate indifference and/ or willful disregard to the safety of the public in response to non-em ergency calls as to fail to prevent injuries of citizens. b. failing to provide adequate training regarding the response to non-em ergency calls. Including, but not lim ited to, allowing com plete discretion to rookie officers as to their speed lim it, use of lights, use of sirens and related safety precautions to better be in control of their vehicle and/ or alert the general public as to their speed; and the failure to include policies and procedures related to the road conditions, weather, experience of the officer and type of neighborhood within which the officer is traveling. c. m onitoring of police officers whom it knew or should have known were suffering em otional and/ or psychological problem s which im paired their ability to function as officers. d. Failing to identify and take rem edial, training or disciplinary action against police officers who were subject of prior civilian or internal com plaints of m isconduct or otherwise put the general public at risk of injury or harm . e. allowing a dangerous custom or practice to form am ong the police officers of defendant FRANKLIN TOWNSHIP including defendant, NICHOLAS LOCILENTO, in responding to non-em ergency calls. Said dangerous custom s and practices include, but are not lim ited to, allowing police officers including defendant, NICHOLAS LOCILENTO, to use excessive speed in response to nonem ergency calls without due regard to road conditions, weather, lighting, and other vehicle and pedestrian traffic. Id. at ¶ 81. Because the allegations in the Third Am ended Com plaint as to Defendant Dalton allege prosecutorial, as opposed to adm inistrative, functions, Eleventh Am endm ent im m unity attaches. See In re Cam den Police Cases, No. CIV. 10 -4757, 20 11 WL 3651318, at *4 (D.N.J . Aug. 18, 20 11 (supervising and training police officers is a 7 prosecutorial function); see also Fletcher v. Cam den County Prosecutor's Office, A0 385– 0 9T1, 20 10 N.J .Super. Unpub. LEXIS 2592, 20 10 WL 4226150 (N.J . Super. Ct. App .Div. Oct. 27, 20 10 ). Defendants’ Motion to dism iss is granted on this basis. In addition, the Court finds that Plaintiff’s claim s pursuant Monell fail to state a claim against Defendant Dalton. A m unicipality is not liable under 42 U.S.C. § 1983 on a respondeat superior theory. Monell v. Dept. Soc. Servs. of New York, 436 U.S. 658, 691, 98 S.Ct. 20 18, 56 L.Ed.2d 611 (1978). 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 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). The United States Suprem e Court has held that “neither a State nor its officials acting under their official capacities are ‘persons' am enable to suit under § 1983.” Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). As such, an em ployee of the State nam ed as a defendant in a civil rights action m ay be held liable only if that person has personal involvem ent in the alleged wrongs and is sued in their personal capacity. See Hafer v. Melo, 50 2 U.S. 21, 31 (1991) (“state officials, sued in their individual capacities, are ‘persons' within the m eaning of § 1983”). “Local governm ent bodies and their officials, by contrast, are regarded as ‘persons' am enable to suit under § 1983.” Estate of Lagano v. Bergen Cty. Prosecutor's Office, 769 F.3d 850 , 854 (3d Cir. 20 14) (citing Monell, 436 U.S.at 690 ). Individuals nam ed as defendants in their personal capacities are am enable to suit under § 1983 as “persons.” Lagano, 769 F.3d at 856. “Officials sued in their personal capacities ... m ay assert personal im m unity defenses.” Hafer, 50 2 U.S. at 25. In the pream ble, the Third 8 Am ended Com plaint identifies Defendant Dalton as a “governm ental entity of the STATE OF NEW J ERSEY[.]” Third Am . Com pl. ¶ 3. There is no indication as to whether Dalton is being sued in his official or individual capacity. Likewise, there are no allegations to support an inference that Dalton is being sued pursuant to 42 U.S.C. §1983 in a supervisory capacity. Such an om ission is fatal to Plaintiff’s claim and cannot be cured by an am endm ent because, even under a generous reading of the Third Am ended Com plaint, there is no suggestion that Defendant Dalton was personally involved in the accident. Rode v. Dellarciprete, 845 F.2d 1195, 120 7 (3d Cir. 1988) (“A defendant in a civil rights action m ust have personal involvem ent in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.”) (citations om itted). At best, the Third Am ended Com plaint seeks to place Dalton in the shoes of dism issed defendant Gloucester County Prosecutor’s Office without alleging any individual or personal actions by Dalton. The allegations against Defendant Dalton are speculative and fail to dem onstrate a plausible claim for relief. For exam ple, the Third Am ended Com plaint alleges: 33. A quote from Mike Rock, form er chief of police, m akes a statem ent indicating the Gloucester County Prosecutors Office (sic) participated in m aking the policies and procedures. 34. A quote from Franklin Township Police Chief Mike Rock: “I certainly anticipate, based on a conversation that I had with prosecutor (Sean) Dalton, that the policy review is going to be a big part of their recomm endations.” 35. This is an adm ission from the Police Chief at the tim e that Sean Dalton and the Gloucester County Prosecutors office played a part in developing the Policies and procedures as, again, “Dalton’s review will be a big part” (sic) 36. Sean Dalton through the Prosecutor’s office played a big part in the policies and procedures. Thd. Am Com pl. ¶¶ 33-36. The allegations speak to prospective review, without any context or inform ation as to the nature of the policies subject to review or the relationship of the policies 9 to the accident. As drafted, the quotes from the Police Chief suggest anticipatory conduct and are insufficient to state a plausible constitutional violation. Thus, the facts as plead fail to m eet the m andate of Iqbal because they “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)). As a result, the m otions to dism iss are granted on this basis. IV. Co n clu s io n For the reasons set forth above, the claim s against Defendant Dalton are dism issed on the basis of Eleventh Am endm ent Im m unity and failure to state a claim , as are the derivative claim s against Defendant Gloucester County. The Court need not address whether Defendant Dalton is entitled to qualified imm unity. The Court further finds that any further am endm ents as to these Defendants is futile because Defendant Dalton is absolutely im m une from suit. Lopez Siguenza v. Roddy, CIV. NO. 13-20 0 5, 20 14 U.S. Dist. LEXIS 43238, at *36 (D.N.J . Mar. 31, 20 14) (further am endm ent against county prosecutor in a § 1983 claim denied as futile because prosecutor “covered by absolute or qualified im m unity.”). Defendants’ m otions are granted and the claim s against the m oving Defendants are dism issed with prejudice. An appropriate Order shall issue. Dated: J une 15, 20 17 s/ J oseph H. Rodriguez HON. J OSEPH H. RODRIGUEZ, United States District J udge 10