HABAYEB v. BUTLER et al, No. 1:2015cv05107 - Document 16 (D.N.J. 2016)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 3/29/2016. (dmr)
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HABAYEB v. BUTLER et al Doc. 16 U N ITED STATES D ISTRICT COU RT D ISTRICT OF N EW JERSEY ED W ARD H ABAYEB Plain tiff, v. CORPORAL SH AU N BU TLER, e t. al., D e fe n d an ts . : : : : : : : : : : H o n . Jo s e p h H . Ro d rigu e z Civil N o . 15-510 7 Op in io n This m atter com es before the Court on Motion of the Defendants Chief Rodney Sawyer and Mantua Township for J udgm ent on the Pleadings, pursuant to Fed. R. Civ. P. 12 (c). The Court has considered the written subm issions of the parties, without oral argum ent. For the reasons that follow, Defendants Chief Rodney Sawyer’s (“Sawyer”) and Mantua Township’s (“Mantua”) m otion is granted in part and denied in part. Plaintiff will be given leave to am end his Com plaint consistent with this Opinion. I. Backgro u n d Plaintiff Edward Hayabeb (“Hayabeb”) was arrested by Mantua police officers on J uly 5, 20 13 and charged with driving under the influence of alcohol or drugs, in violation of N.J .S.A. 38:4-50 , reckless driving, in 1 Dockets.Justia.com violation of N.J .S.A. 39:4-96, failure to give a proper turn signal, in violation of N.J .S.A. 39:4-126, and failure to m aintain a lane, in violation of N.J .S.A. 39:4-88b. A naturalized citizen of Palestinian descent, Hayabeb claim s he was stopped by police after he diverted his car from road debris and wayward trashcans, causing him to navigate over the double yellow traffic line. Com pl. ¶ 10 . At som e point during the stop, Hayabeb was in the presence of three Mantua police officers, who despite acknowledging the lack of alcohol odor, proceeded to conduct a field sobriety test. Id. at¶¶ 11-13, 15. Plaintiff claim s that Defendant Shield was not properly trained to adm inister the field tests and that he was subjected to heightened scrutiny because one of the police officers declared that Hayabeb’s drivers’ license looked fake. Id. at ¶¶ 16-17. Plaintiff was taken to the Mantua Police Departm ent where he perform ed several sobriety tests. Id. at ¶¶ 1821. Plaintiff claim s he had trouble reciting the “reverse alphabet” because English is not his native language. Id. at ¶ 22. Likewise, the “finger to the nose” test was challenging because Plaintiff had difficulty reading the written instructions. Id. Plaintiff claim s that Officer Shield adm inistered the first tests, but that the other officers had to intervene at various points 2 to explain the tests and to retest. Id. at ¶ 22. Eventually, Defendant Hauss adm inistered a breathalyzer test; the result was 0 .0 0 %. Id. at ¶ 23. Plaintiff claim s that on J uly 5, 20 13, he was only charged with failure to give a proper signal and failure to m aintain a lane. Id. at ¶24. Afterwards, out of a concern for his alleged m istreatm ent, he m ade an appointm ent with Chief Sawyer for J uly 8, 20 13. That m eeting was cancelled and Plaintiff claim s he was issued two m ore citations for driving under the influence of alcohol or drugs and for reckless driving. Id. at ¶ 26. Plaintiff’s proof of the ex post facto charges com es in the form of post m arked envelopes, dated J uly 9, 20 13 and received by Plaintiff on J uly 10 , 20 13, attached to the Com plaint as Exhibit B. Id. at ¶ 26. Plaintiff claim s that the charges for driving under the influence of alcohol or drugs, reckless driving, and failure to give a proper signal were all dism issed voluntarily by Mantua. Id. at ¶ 27. Hayabeb brings several causes of action against the Defendants, including false arrest, negligent infliction of em otional distress, and claim s pursuant to Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 663– 64 n. 7, 98 S.Ct. 20 18, 56 L.Ed.2d 611 (1978). The claim s are inartfully plead and each count is titled as against “all defendants” without 3 an specification as to the individualized attachm ent of liability: Count I Malicious Prosecution, pursuant to 42 U.S.C. §1983; Count II Equal Protection, pursuant to 42 U.S.C. §1985; Count III Violation of the Fourth Am endm ent/ Search and Seizure, pursuant to 42 U.S.C. §1983; Count IV False Arrest; Count V Negligent and/ or Intentional Infliction of Em otional Distress; Count VI Deliberate Indifference/ Gross Negligence, pursuant to 42 U.S.C. §1983; Count VII Harm , pursuant to the Restatem ent Second of Torts §870 ; Count VII Failure to Train, pursuant to 42 U.S.C. §1983; and Count IX Conspiracy, pursuant to 42 U.S.C. §1985. At issue here are the claim s against Defendants Sawyer and Mantua. Sawyer and Mantua seeks judgm ent on the pleadings as to the claim s plead under 42 U.S.C. §1983 based on respondeat superior or vicarious liability (Counts I, II, III, VI and VII), the Monell claim s (Counts II and VIII) and the conspiracy claim (Count IX) because such claim s are insufficiently plead, and the intentional tort claim s (Counts V and VII) as barred by the New J ersey Tort Claim s Act, N.J .S.A., 52:2-10 . II. Stan d ard o n Mo tio n fo r Ju d gm e n t o n th e Ple a d in gs Federal Rule of Civil Procedure 12(c) provides that a party m ay m ove for judgm ent on the pleadings. The m ovant under Rule 12(c) m ust show 4 clearly that no m aterial issue of fact exists and that it is entitled to judgm ent as a m atter of law. Rosenau v. Uniford Corp., 539 F.3d 218, 221 (3d Cir. 20 0 8) (citing J ablonski v. Pan Am . World Airways, Inc., 863 F.2d 289, 290 91 (3d Cir. 1988)). A m otion under Rule 12(c) is reviewed under the sam e standard as a m otion to dism iss under Rule 12(b)(6). Turbe v. Governm ent of the Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991). Federal Rule of Civil Procedure 12(b)(6) provides that a court m ay dism iss a com plaint “for failure to state a claim upon which relief can be granted.” In order to survive a m otion to dism iss, a com plaint m ust allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twom bly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (20 0 7); see also Fed.R.Civ.P. 8(a)(2). While a court m ust accept as true all allegations in the plaintiff's com plain t, and view them in the light m ost favorable to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 20 0 8), a court is not required to accept sweeping legal conclusions cast in the form of factual allegations, unwarranted inferences, or unsupported conclusions. Morse v. Lower Merion Sch. Dist., 132 F.3d 90 2, 90 6 (3d Cir. 1997). The com plaint m ust state sufficient facts to show that the legal allegations are not sim ply possible, but plausible. Phillips, 515 5 F.3d at 234. “A claim has facial plausibility 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (20 0 9). III. Plain tiff’s Co n s titu tio n al Claim Again s t Man tu a In Monell, 436 U.S. at 691-94, the Suprem e Court stated that a m unicipality could not be held liable under Section 1983 pursuant to a theory of respondeat superior. Municipalities are only held responsible “for their own illegal acts.” Connick v. Thom pson, 131 S.Ct. 1350 , 1359 (20 11) (quoting Pem baur v. City of Cincinnati, 475 U.S. 469, 479 (1986)). A. 4 2 U .S.C.19 8 3 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 6 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 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 Baker, 443 U.S. at 145, n. 3). 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. Tedder, 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. 7 William s v. Borough of West Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989). B. Mu n icip al Lia bility Mantua 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 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). 8 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 v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996) (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 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 9 Pem baur, 475 U.S. at 483– 8 4 (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, 131 S.Ct. at 1360 . 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)) (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)). IV. An alys is A. Plaintiff’s Section 1983 Claim s Against Defendants Based Upon Respondeat Superior and/ or Vicarious Liability Plaintiff’s claim s against Mantua and Chief Sawyer based upon respondeat superior and/ or vicarious liability as plead in Counts I, II, III, VI and VIII are dism issed. Plaintiff alleges throughout these counts that Defendants were acting with apparent authority under the supervision of 10 their superiors and that, as a result, Defendants Mantua and Chief Sawyer are vicariously liable under agency principals and respondeat superior.1 Plaintiff’s bare allegations that Mantua and Chief Sawyer tacitly approved the behavior and actions of the arresting Mantua police officers is insufficient to state a Section 1983 claim for supervisory liability. Mantua, as a m unicipality, is not liable for the m isconduct of its em ployees under Section 1983 on a theory of respondeat superior. Monell, 436 U.S. at 663– 64 n. 7. As a supervisor, Chief Sawyer is not liable under § 1983 solely on a theory of respondeat superior. Connick, 131 S.Ct. at 1358– 61; City of Oklahom a City v. Tuttle, 471 U.S. 8 0 8, 824 n. 8 (198 5); Monell, 436 U.S. at 690 – 91, 694 (m unicipal liability attaches only “when execution of a governm ent's policy or custom , whether m ade by its lawm akers or by those whose edicts or acts m ay fairly be said to represent official policy, inflicts the injury” com plained of); Natale v. Cam den County Correctional 1 In Count I, Plaintiff alleges that “Mantua Township and the Chief of Police are liable for the wrongful conduct of the Defendant officers under the law of vicarious liability, including the doctrine of Respondeat superior because of the agency relationship described above.” Com pl. ¶ 41. Count II alleges a policy and custom with the inference of vicarious liability. Id. at ¶ 47. Count III alleges that the “Defendant Officers, and vicariously the Chief and Township” are liable for Plaintiff’s alleged false arrest. Id. at ¶ 51. Likewise, Count VI seeks to hold Mantua and Chief Sawyer “liable for the wrongful conduct of the Defendant officers under the law of vicarious liability, including the doctrine of Respondeat superior because of the agency relationship described above.” Id. at ¶ 81. Finally, Count VIII alleges that Defendant Mantua Township, by and through its agents, exercised a deliberate indifference to the well-being and legal rights of the Plaintiff.” Id. at ¶ 91. 11 Facility, 318 F.3d 575, 583– 84 (3d Cir. 20 0 3). In addition, the Com plaint is devoid of any allegation that could support an inference that Chief Sawyer was personally involved or even aware of Hayabeb’s arrest on J uly 5, 20 13. See Durm er v. O'Carroll, 991 F.2d 64, 69 n. 14 (3d Cir. 1993). “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. Personal involvem ent can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 120 7 (3d Cir. 1988 ) (citations om itted). Here, the claim s against Chief Sawyer are dism issed to the extent that these claim s are based solely on the respondeat superior theory. Durm er, 991 F.2d at 69 n. 14. As a result, to the extents the claim s against Mantua and Chief Sawyer seek relief based upon the theories of respondeat superior and vicarious liability, as plead in Counts I, II, III, VI and VIII, are dism issed in part as to these defendants. B. Plaintiff’s Monell Claim s Plead in Counts II and VIII To the extent the claim s set forth in Counts II and VIII seek redress under Monell, these counts are dism issed without prejudice and Plaintiff is given leave to am end the Com plaint. 12 To survive a m otion for judgm ent on the pleadings, Plaintiff “m ust identify a custom or policy, and specify what that custom or policy was.” McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 20 0 9). “[A] single incident of unconstitutional 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 (1985); see Ingram v. Twp. of Deptford, 911 F.Supp.2d 289, 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). A m unicipality's failure to properly train its police officers can am ount to a “custom ” that triggers liability under section 1983. See City of Canton, 489 U.S. at 388. Such liability is reserved for cases where the failure to train evidences a “deliberate indifference” to the constitutional rights of that m unicipality's citizens. Id. at 389. An allegation suggesting a training program is inadequate is insufficient. Id. at 390 . Instead, Plaintiff m ust “identify a failure to provide specific training that has a causal nexus with his or her injuries and ... dem onstrate that the absence of that specific training can reasonably be said to reflect a deliberate indifference to whether the alleged constitutional deprivations occurred.” Reitz v. Cnty. of Bucks, 125 F.3d 139, 144 (3d Cir. 1997). 13 “[D]eliberate indifference m ay be established when a policym aker has knowledge of a ‘pattern of sim ilar constitutional violations by untrained em ployees’ but takes no action to augm ent or alter the m unicipality's em ployee training program s accordingly.” Grandizio v. Sm ith, No. CIV. 143868, 20 15 WL 58 40 3, at *5 (D.N.J . J an. 5, 20 15) (quoting Lapella v. City of Atlantic City, No. 10 – 2454, 20 12 WL 2952411, at *7 (D.N.J . J uly 18, 20 12) (further citations om itted)). Even a liberal reading of Plaintiff's com plaint com pels the conclusion that Plaintiff fails to adequately sets forth sufficient factual allegations to dem onstrate a plausible claim for relief for m unicipal liability on theories of failure to train and/ or deliberate indifference. At best, Plaintiff’s Com plaint contains im perfect form ulaic recitations of the legal standards under Monell. In conclusory fashion, it alleges that “Defendants were acting under a custom and/ or practice and/ or official policy of Mantua Township and its police departm ent and its chief” and that Mantua and Chief Sawyer “inadequately trained” the arresting defendants. Com pl., ¶¶ 75, 91. The Com plaint is also speculative and predicated upon sweeping legal conclusions. Morse, 132 F.3d at 90 6. In Paragraph 47, the Com plaint states “Plaintiff’s inadequately trained claim appears to be sim ilar to other 14 sim ilarly situated persons and indicates that this behavior by Mantua Township Police is part of a larger pattern of selective enforcem ent by the Defendants that m ay rise from a custom and/ or practice and/ or policy of the Defendant Police Chief and Defendant Mantua Township.” Com pl. at ¶ 47 (em phasis added). The Court finds that these allegations, when read together with the attachm ents to the Com plaint and the fact section of the Com plaint am ount to no m ore than a m ere recitation of the legal elem ents necessary to establish m unicipal liability under Section 1983. Morse, 132 F.3d at 90 6. The Complaint fails to allege actual facts suggesting that Mantua prom ulgated an official policy or m ain tained a custom that was the “m oving force” that led to the alleged deprivation of Plaintiff's constitutional rights. In addition, Plaintiff m erely speculates that there m ay be relevant conduct that Mantua or Chief Sawyer failed to rem ediate. Because Plaintiff has not specified what custom or policy of Mantua and or Chief Sawyer led to Plaintiff's alleged deprivations, the claim s under Monell plead in Counts II and VIII are dism issed without prejudice. In addition, Plaintiff’s failure to train claim s are sim ilarly deficient because “Plaintiff has not identified a failure to provide specific training, or 15 identified any shortcom ings in any existing training program s, that caused the specific harm to the Plaintiff.” Grandizio, No. CIV. 14-3868 RBK, 20 15 WL 5840 3, at *6-7. Moreover, Plaintiff’s attem pt to dem onstrate an alleged a pattern of sim ilar constitutional violations is unavailing. In this regard, Plaintiff appends to his opposition brief a copy of a Com plaint against Mantua, a notice of a settlem ent, and an article detailing the settlem ent of a case brought against Mantua by a Plaintiff of Arabic descent.2 See Pl. Opp. Br., Ex. A. As a result, the Com plaint lacks the factual nexus and/ or specificity to connect Plaintiff’s alleged constitutional deprivation to the failure of Mantua and/ or Chief Sawyer to train and/ or be deliberately indifferent. See Lapella, No. 10 – 2454, 20 12 WL 2952411, at *8 (finding that plaintiff did not adequately plead a failure to train claim because the com plaint contained only conclusory allegations). For the sam e reasons, Plaintiff’s alleged custom or practice claim fails. Defendants’ m otion for judgm ent on 2 On a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007). Exhibits attached to a brief may be considered if the documents are “undisputedly authentic” and “the plaintiff's claims are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Defendants did not file a reply brief, so there is no challenge to the Plaintiff’s use of the documents. However, to the extent that the documents are at all relevant, there is no connection to the present matter. The only inference that can be fairly drawn is that Mantua has been sued by a man of Arabic descent in the past and settled the case. Cases settle for many reasons and the Court will not assume that the settlement in the case referenced by Plaintiff was an admission of liability by Mantua or that it highlights a lack of training, deliberate indifference, or custom or policy. 16 the pleadings is granted as to the Monell claim s; the dism issal is without prejudice as to Counts II and VIII and Plaintiff will be given leave to am end. C. Plaintiff’s Com m on Law Claim s Plead in Counts IV, V, and VII Plaintiff brings of false im prisonm ent/ false arrest (Count IV), intentional infliction of em otional distress (Count V), and harm (Count VII) under the New J ersey Tort Claim s Act (“NJ TCA”). The NJ TCA provides, “[a] public entity is not liable for the acts or om issions of a public em ployee constituting a crim e, actual fraud, actual m alice, or willful m isconduct.” N.J .S.A. 59:2– 10 . The Com m ent to this section explains, This provision recognizes the existing law and public policy that a public entity should not be vicariously liable for such conduct of its em ployees. In addition it adopts the concept noted in O'Connor v. Harm s, et al., 111 N.J .Super. 22, 26– 27, 266 A.2d 60 5 (App.Div. 1970 ) that: “a public corporation such as a city or other public body, by reason of its being an artificial legal entity created by law to perform lim ited governm ental functions, cannot entertain m alice, as a public corporation.” It is well settled that “a public corporation, such as a city or other public body, by reason of its being an artifical [sic] legal entity created by law to perform lim ited governm ental functions,” cannot perform an intentional tort on an individual. See O'Connor v. Harm s, 266 A.2d 60 5, 26– 27 (N.J .Super.Ct.App.Div. 1970 ) (holding that defendant board of 17 education is an artificial entity an d therefore could not entertain m alice against plaintiff); see also Farris v. County of Cam den, 61 F.Supp.2d 30 7, 346– 67 (D.N.J . 1999) (holding that principle enunciated in O'Connor “applies with equal force to tort claim s where scienter is an elem ent of the cause of action.”). Thus, “courts in this District have interpreted Section 59:2– 10 of the New J ersey Tort Claim s Act to bar public entities from liability for claim s of ... intentional infliction of em otional distress.” Warnett v. Corr. Med. Svcs., No. 0 7– 1291, 20 0 8 WL 930 739, at *7 (D.N.J . Mar.31, 20 0 8). However, claim s for false im prisonm ent/ false arrest m ay proceed against m unicipalities under the NJ TCA where it is alleged that that the m unicipal em ployee was acting in the scope of em ploym ent and without “willful m isconduct.” See N.J . Stat. Ann. §§ 59:2– 2a, – 10 ; see also O'Brien v. Borough of Woodbury Heights, 679 F.Supp. 429, 439 (D.N.J . 1988); see also Matos v. City of Cam den, No. CIV. 0 6-20 5, 20 0 9 WL 3756652, at *2 (D.N.J . Nov. 9, 20 0 9). Here, Plaintiff concedes that his claim s as plead in Counts IV and VII, for false im prisonm ent/ false arrest and harm fail to state a claim for which relief can be granted. See Pl. Br., pp. 11-12. Plaintiff agrees to voluntarily dism iss Counts IV and VII as to both Defendants Mantua and Sawyer. Id. 18 Likewise, Plaintiff concedes that his claim as plead for intentional infliction of em otional distress in Count V fails to state a claim for which relief can be granted as to Mantua and voluntarily dism isses this claim . Id. As a result, Defendant’s m otion is granted as to Counts IV and VII and the intentional infliction of em otional distress claim s plead in Count V as to defendant Mantua. However, Plaintiff contends that Count V also seeks redress for negligent infliction of em otional distress and argues that Chief Sawyer can be held liable for intentional infliction of em otional distress. Plaintiff is correct that Chief Sawyer is not autom atically im m une from liability under the NJ TCA. See Mantz v. Chain, 239 F.Supp.2d 486, 50 8 (D.N.J . 20 0 2) (“While the TCA expressly bars recovery of punitive dam ages against public entities ..., the New J ersey courts have held that ‘no such im m unity exists [under the TCA] for public em ployees.’ ”). However, Plaintiff’s claim s are lacking for other reasons. To establish a claim for intentional infliction of em otional distress, Plaintiff m ust dem onstrate that: “(1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was outrageous; (3) the defendant's actions proxim ately caused plaintiff's em otional distress; and (4) plaintiff's 19 em otional distress was ‘so severe that no reasonable m an could be expected to endure it.’” Swingle v. Novo Nordisk, Inc., 20 0 9 U.S. Dist. LEXIS 76991, at *23– 24, 20 0 9 WL 277810 6 (D.N.J . Aug. 27, 20 0 9) (quoting Buckley v. Trenton Sav. Fund Soc., 111 N.J . 355, 365– 66, 544 A.2d 857 (N.J . 1988)). A liberal reading of Plaintiff’s Com plaint com pels the conclusion that Plaintiff has not m et this pleading burden and the claim for intentional infliction of em otional distress against Chief Sawyer in Count V is dism issed without prejudice. Plaintiff will be given leave to am end his Com plaint. To recover for negligent infliction of em otional distress, Plaintiff m ust allege two things: 1) that Defendants’ negligent conduct placed him in reasonable fear of im m ediate personal injury and 2) that he suffered em otional distress which m anifested in substantial bodily injury or sickness. J ablonowska v. Suther, 195 N.J . 91, 948 A.2d 610 , 617 (20 0 8) (citing Falzone v. Busch, 45 N.J . 559, 214 A.2d 12, 12 (1965)). In New J ersey, “where fright does not cause substantial bodily injury or sickness, it is to be regarded as too lacking in seriousness and too speculative to warrant the im position of liability.” Id. Here, even accepting the allegations in the com plaint as true and viewing the Com plaint in the light m ost favorable to the Plaintiff, Plaintiff fails to set forth sufficient facts 20 dem onstrating he was placed “in reasonable fear of im m ediate personal injury.” J ablonowska, 195 N.J . at 10 4, 948 A.2d 610 . As a result, Count V is dism issed against Mantua and Chief Sawyer, as to the claim of negligent infliction of em otional distress, without prejudice. Plaintiff will be given leave to am end his Com plaint. D. Count IX Conspiracy in Violation of 42 U.S.C. § 1985 Count IX alleges a conspiracy claim , pursuant to 42 U.S.C. § 1985. Section 1985(3) perm its an action to be brought by one injured by a conspiracy form ed “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and im m unities under the laws.” 42 U.S.C. § 1985(3). To prove that Defendants conspired to violate their civil rights, in violation of 42 U.S.C. § 1985(3), Plaintiff m ust prove the existence of (1) a conspiracy m otivated by invidious discrim inatory anim us, (2) for the purpose of depriving them , either directly or indirectly, of the equal protection of the laws, (3) that there was an act in furtherance of the conspiracy, and (4) that she was, as a result, injured in her person or deprived of any right or privilege of a citizen of the United States. See Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 20 0 6). 21 Defendants m ove for dism issal on the ground that Plaintiff’s claim is nothing m ore than a form ulaic recitation of the law. Plaintiff’s Com plaint states: 94. Defendant Mantua Township and the Defendant Officers and the Defendant Police Chief engaged in a conspiracy to deprive Plaintiff of his right to equal protection 95. By and through the facts alleged above, including, but not lim ited to, Plaintiff being subjected to heightened scrutiny for his color and race, Plaintiff’s arrest and ongoing detention despite the lack of probable cause and a 0 .0 0 BAC and the subsequent retaliatory charges issued after he requested a m eeting with the Defendant Chief of Police, the Defendants com m itted acts in furtherance of this conspiracy. 96. As a consequence of these actions, Plaintiff’s federal civil rights, guaranteed under both the United States Constitution and Federal Statutes, were violated by Defendants. Plaintiff’s Com plaint lacks the predicate facts to establish a claim and Defendants’ Motion is granted. Count IX is dism issed without prejudice. Plaintiff will be given leave to am end his Com plaint. V. Co n clu s io n For the reasons stated above, Defendants’ m otion is granted in part. As to Defendants Mantua and Chief Sawyer, Plaintiff’s claim s plead in Counts I, II, III, VI and VIII, are dism issed with prejudice, in part, as to the extent these Counts are predicated solely upon respondeat superior. Counts II and VIII are dism issed without prejudice and Plaintiff will be given leave 22 to am end his Com plaint. Counts IV and VII are dism issed as to Defendants Mantua and Sawyer. Plaintiff’s claim for intentional infliction of em otional distress plead in Count V is dism issed as to Mantua and dism issed without prejudice as to Chief Sawyer, with leave to am end the Com plaint. Count V is dism issed without prejudice against Mantua and Chief Sawyer, as to the claim of negligent infliction of em otional distress and Plaintiff will be given leave to am end his Com plaint. Plaintiff’s claim of conspiracy Count IX is dism issed without prejudice, with leave to am end the Com plaint. An appropriate Order shall issue. Dated: March 29, 20 16 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 23
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