TORRES et al v. VELASQUEZ et al, No. 1:2017cv01685 - Document 15 (D.N.J. 2017)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 11/28/2017. (dmr)
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TORRES et al v. VELASQUEZ et al Doc. 15 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY GWENDOLYN TORRES, et al., : : : : : : : : : Plaintiffs, v. GIL VELASQUEZ, et al., Defendants. Hon. J oseph H. Rodriguez Civil Action No. 17-1685 OPINION This m atter com es before the Court on Motion to Dism iss filed by Defendants Gil Velasquez and Dawn McCargo-William s, pursuant to Fed, R. Civ. P. 12 (b) (6). The Court has considered the written subm issions of the parties, and, pursuant to L. Civ. R. 78 (b), grants the m otion because: (a) Defendants enjoy quasi- im m unity from suit, (b) Plaintiff fails to state a claim upon which relief can be granted, and (c) Defendants are cloaked in qualified im m unity. I. Background Defendants Gil Velasquez (“Velasquez”) and Dawn McCargo-William s (“McCargo-William s”) are both New J ersey State em ployees in the Cam den County Probation Office; Velasquez is the Division Chief. Plaintiff Gwendolyn Torres (“Torres”) brings this action individually and as Guardian/ Personal Representative of Anya Wilson and as Adm inistrator of the Estates of both Scarlett Wilson and Seven Wilson. The underlying facts of this case are tragic. 1 Dockets.Justia.com Anya Wilson is the daughter of the deceased Scarlett Wilson, the sister of the deceased Seven Wilson, and the granddaughter of Torres. Am . Com p. ¶ 2. Defendant McCargo-William s was responsible for the supervision of Leon Wilson during his term of probation beginning J anuary 18, 20 13. Id. ¶ 10 . Leon Wilson is Scarlett Wilson’s son and the brother of Anya and Seven Wilson. Id. ¶ 12. According to the Am ended Com plaint, on or before April 20 14, Leon Wilson com m unicated to Defendant McCargoWilliam s his intent to kill his m other, Scarlett Wilson. Id. Plaintiff claim s that Leon Wilson has a docum ented history of m aking threats to harm his m other. Id. On April 13, 20 14, Leon Wilson m urdered his m other by stabbing her repeatedly. Id. ¶ 15. Scarlett Wilson was pregnant with Seven Wilson at the tim e of the stabbing and, although he was born alive, Seven eventually died from his injuries on May 1, 20 14. Id. at ¶¶ 15, 17. Anya Wilson witnessed the m urder of her m other. Id. ¶ 16. The Am ended Com plaint alleges claim s under 42 U.S.C. §§ 1983 and 1988, for violations of the 5th , 8 th , and 14 th Am endm ents, on the theory that Defendants are liable for failing to com m unicate Leon Wilson’s threats to Scarlett Wilson. As a prelim inary m atter, Plaintiff agrees that the claim s against Defendants are alleged in their individual capacity and not in their official capacity.1 In addition, because the Am ended Com plaint does not allege that Plaintiff or Plaintiff’s decedent and/ or granddaughter were incarcerated at the tim e of the underlying incident, the The Superior Court of New J ersey and its vicinages are part of the judicial branch of the State of New J ersey and are entitled to Eleventh Amendment imm unity. See J ohnson v. State of New J ersey, 869 F. Supp. 289, 296-98 (D.N.J . 1994). As a result, em ployees of the Superior Court of New J ersey when sued in their official capacity are cloaked with sovereign im m unity under the Eleventh Am endm ent. Id. at 298. County probation departments are considered arm s of the State and enjoy Eleventh Am endment im m unity. See Gencarelli v. Superior Court of New J ersey, No. Civ. A. 0 4-3332, 20 0 5 WL 1490 590 , at *3 (D.N.J . J une 22, 20 0 5). 1 2 Am ended Com plaint fails to state a claim under the 8 th Am endm ent and the m otion to dism iss is granted as to this claim . Farm er v. Brennan, 511 U.S. 825, 834 (1994). In addition, “[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.” Rode v. Dellarciprete, 845 F.2d 1195, 120 7 (3d Cir. 1988). The claim s against Velasquez are solely prem ised upon a theory of respondeat superior and are dism issed. For the reasons that follow, Defendants’ Motion to Dism iss is granted because, as probation officers, Defendants are cloaked with quasi-judicial im munity with respect to the allegations set forth in the Am ended Com plaint. Alternatively, Defendants are cloaked with qualified im m unity because Plaintiffs’ state created danger claim fails as a m atter of law. II. Standard of Review Under Rule 12 (b) (6), a com plaint m ay be dism issed for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12 (b) (6). When reviewing a m otion to dism iss on the pleadings, courts “accept all factual allegations as true, construe the com plaint in the light m ost favorable to the plaintiff, and determ ine whether, under any reasonable reading of the com plaint, the plaintiff m ay be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 20 0 8) (quotations om itted). Under such a standard, the factual allegations set forth in a com plaint “m ust be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twom bly, 550 U.S. 544, 555 (20 0 7). Indeed, “the tenet that a court m ust accept as true all of the allegations contained in a com plaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9). “[A] com plaint m ust do m ore than allege the plaintiff's entitlem ent to 3 relief. A com plaint has to ‘show’ such an entitlem ent with its facts.” Fowler v. UPMC Shadyside, 578 F.3d 20 3, 211 (3d Cir. 20 0 9). III. Analysis A. Quasi-J udicial Im m unity Like judges, “quasi-judicial officials acting within the scope of their official duties are absolutely im m une.” Delbridge v. Schaeffer, 238 N.J .Super. 323, 340 , 569 A.2d 872 (Law Div. 1989). “When judicial im m unity is extended to officials other than judges, it is because their judgm ents are ‘functionally com parable’ to those of judges—that is because they, too, ‘exercise a discretionary judgm ent’ as part of their function.” Antoine v. Byers & Anderson, Inc., 50 8 U.S. 429, 436, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993). As quasi-judicial officers, probation officers are cloaked with judicial im m unity when they act pursuant to a court directive. Stankowski v. Farley, 251 Fed. Appx. 743, 746 (3d Cir. 20 0 7) (citing Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir. 1972)); see also Price El v. Superior Court of New J ersey, No. CIV.A. 11-2213 NLH, 20 12 WL 95210 , at *4 (D.N.J . J an. 12, 20 12). “Quasi-judicial absolute im m unity attaches when a public official's role is functionally com parable to that of a judge.” Dotzel v. Ashbridge, 438 F.3d 320 , 325 (3d Cir. 20 0 6). This im m unity does not attach to actions taken in the probation officers' executive or adm inistrative capacity, but only where the probation officer is acting in an adjudicatory capacity. Wilson v. Rackm ill, 878 F.2d 772, 775 (3d Cir. 1989); Harper v. J effries, 80 8 F.2d 281, 284 (3d Cir. 1986); Thom pson v. Burke, 556 F.2d 231, 236 (3d Cir. 1977). Quasi-judicial im m unity is overcom e where the alleged actions are not taken in their capacities as probation officers or where their actions are taken in the absence of 4 all jurisdiction. See Mireless v. Waco, 50 2 U.S. 9, 11– 12 (1991); William s v. Consovoy, 333 F. Supp. 2d 297, 299– 30 0 (D.N.J . 20 0 4), aff'd, 453 F.3d 173 (3d Cir. 20 0 6). Here, Defendants are em ployed by the Probation Division of the Cam den County Vicinage of the Superior Court of New J ersey. Pursuant to N.J . Stat. Ann. §§ 2B:10 -3(d) and 4(b) (20 0 6), both Velasquez2 and McCargo-Williams are considered judicial em ployees of the State of New J ersey. The Am ended Com plaint does not allege any facts to suggest that Defendants' interactions with Scarlett Wilson occurred outside of their duties as probation officers. Rather, inaction is alleged: Plaintiff argues that Defendants should have acted when they learned that Leon Wilson had m ade threats against his m other and that Defendants should have acted when Leon Wilson failed to com ply with the term s of his probation by failing to appear at his m andatory appointed probation m eeting before April, 20 14. Am . Com pl. ¶¶ 13-14. Although the Am ended Com plaint alleges that the “actions and inactions” of the Defendants’ caused harm to the Plaintiffs, there are no actions alleged, only the absence of action. Defendants’ alleged failure to violate Leon Wilson’s probation for failure to attend a m andatory m eeting falls squarely within the am bit of the probation officers’ adjudicatory capacity for which Defendants are entitled to quasi-judicial im munity. Wilson v. Rackm ill, 878 F.2d 772, 775 (3d Cir. 1989). The Defendants’ alleged inaction, by failing to inform Scarlett Wilson of inherent danger from Leon Wilson, is also a function of the supervisory role afforded probation officers in assuring com pliance with the term s and conditions of court-ordered probation. Thus, the determ ination to not Despite being dismissed from the case as noted infra., the Court will also analyze the claims against Velasquez for the sake of completeness. 2 5 violate Leon Wilson on the basis of his threats is cloaked with quasi-judicial im m unity. Mayes v. Hayes, No. 4:16– CV– 0 0 125– J HM, 20 17 WL 235192, at *2 (W.D. Ky. J an. 18, 20 17) (noting that probation officers are entitled to quasi-judicial im m unity when determ ining whether an individual has violated the term s of his or her probation). “The Court of Appeals for the Third Circuit has labored m ightily to define the distinction between judicial acts and executive/ m inisterial acts.” Sim on v. Ward, No. 99-1554, 20 0 1 WL 41127, at *2 (E.D.Pa. J an. 16, 20 0 1). The distinction is far from clear and the facts of this case fall within the gray area between actions entitled to quasijudicial imm unity, qualified im munity and actionable claim s. For exam ple, the Third Circuit has held that probation officers acting in an executive capacity, i.e., “charg[ing] [a defendant] with wrongdoing and present[ing] evidence to that effect . . . are not entitled to absolute [quasi-judicial] im m unity from suit, but only to a qualified, goodfaith im m unity.” Harper v. J effries, 80 8 F.2d 281, 284 (3d Cir. 1986). The facts here allege inaction- failure to charge and failure to inform . The Court finds that these “inactions” fall within the probation officer’s executive function of carrying out a judicial order and are worthy of quasi-judicial im m unity. B. 42 U.S.C. § 1983 and Qualified Im m unity 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 (1992). Any analysis of 42 U.S.C. § 1983 should begin with the language of the statute: 6 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. 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 (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 the plaintiff was deprived of his 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). The doctrine of qualified im m unity provides that “governm ent officials perform ing discretionary functions . . . are shielded from liability for civil dam ages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S. 80 0 , 818 (1982). Thus, governm ent officials are im m une from suit in their individual capacities unless, “taken in the light m ost favorable to the party asserting the injury, . . . 7 the facts alleged show the officer’s conduct violated a constitutional right” and “the right was clearly established” at the tim e of the objectionable conduct. Saucier v. Katz, 533 U.S. 194, 20 1 (20 0 1). This doctrine “balances two im portant interests—the need to hold public officials accountable when they exercise power irrespon sibly and the need to shield officials from harassm ent, distraction, and liability when they perform their duties reasonably” and it “applies regardless of whether the governm ent official’s error is a m istake of law, a m istake of fact, or a m istake based on m ixed questions of law and fact.” Id. (internal quotation om itted). Properly applied, qualified im m unity “protects ‘all but the plainly incom petent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 131 S. Ct. 20 74, 20 85 (20 11) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Here, the parties agree that the Defendants acted within the scope of their authority. The question presented at this stage is whether Plaintiff’s rights were clearly established at the tim e of the incident. For a right to be clearly established, “[t]he contours of the right m ust be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier, 533 U.S. at 20 2 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). That is, “[t]he relevant, dispositive inquiry in determ ining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Couden v. Duffy, 446 F.3d 483, 492 (20 0 6). “If the officer’s m istake as to what the law requires is reasonable,” the officer is entitled to qualified im m unity. Couden, 446 F.3d at 492 (internal citations om itted). Further, “[i]f officers of reasonable com petence could disagree on th[e] issue, im m unity should be recognized.” Malley, 475 U.S. at 341 (1986). See also Brosseau v. Haugen, 543 U.S. 194, 198 (20 0 4) (The general touchstone 8 is whether the conduct of the official was reasonable at the tim e it occurred.) Finally, because qualified im munity is an affirm ative defense, the burden of proving its applicability rests with the defendant. See Beers-Capital v. Whetzel, 256 F.3d 120 , 142, n.15 (3d Cir. 20 0 1). Defendants are entitled to qualified im m unity because their conduct, as alleged, does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 80 0 , 818, 10 2 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Defendants’ alleged decision not to warn Scarlett Wilson of the threats m ade against her by her son, Leon Wilson, is also entitled to qualified im m unity because it does not rise to the level of a state created danger and no constitutional violation occurred. Plaintiff alleges 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, 235 (3d Cir. 20 0 8). 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 9 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.”). 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 under 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, 281 (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). 10 Even assum ing Plaintiff has stated a cognizable claim as to the first three elem ents of a state created danger claim , the Am ended Com plaint fails to set forth the affirm ative action contem plated by the fourth elem ent. On this point, the Court’s ruling in Caissie is instructive. In Caissie, the plaintiff was violently assaulted by her thenboyfriend at an establishm ent in Cape May, New J ersey. Caissie, 619 F. Supp. 2d at 111. The police were called and the boyfriend was arrested. Id. During his arrest, the boyfriend told police that he was on probation for an aggravated assault offense and that it “was not over” between him and the plaintiff. Id. Despite this inform ation, the boyfriend was released that evening, without notification to the plaintiff, and, that sam e night, he attacked the plaintiff causing her severe and perm anent injuries. Id. This Court granted the defendants’ m otion to dism iss on the ground, inter alia, that the plaintiff’s allegation that the police failed to warn her was insufficient to sustain a claim under a state created danger theory. Id. at 118-19. In so doing, this Court relied on Third Circuit precedent that rem ains applicable and held that the failure to directly warn does not rise to the level of an affirm ative act for purposes of a state-created danger claim . See Walter v. Pike County 544 F.3d 182, 194-95 (3d Cir. 20 0 8) (“[A] state actor’s failure to warn about the likelihood of a private act of violence– even a highly culpable failure to warn– cannot itself predicate liability.”). The Third Circuit explains: [A] state actor’s failure to warn about the likelihood of a private act of violence– even a highly culpable failure to warn– cannot itself predicate liability. Rather, under the fourth elem ent of a state-created danger claim , liability . . . is predicated upon the state’s affirm ative acts which work to the plaintiff’s detrim ents in term s of exposure to danger, and we have never found a state-created danger claim to be m eritorious without an allegation and subsequent showing that state authority was affirm atively exercised. 11 Walter, 544 F.3d at 194 (citing Bright, 443 F.3d at 282 (internal quotations om itted)). Moreover, “[i]f a state-created danger claim cannot be predicated on a failure to arrest,” the Third Circuit opined, “neither can it be predicated on a failure to provide protection.” Walter, 544 F.3d at 195 (citing Bright, 443 F.3d at 284 (“m ere failure to protect an individual against private violence does not violate the Due Process Clause.”)) (citations om itted). A failure to provide protection is sufficiently broad to encom pass a failure to warn. For the sake of clarity, however, the Third Circuit concluded– “if an assurance of well-being despite the presence of a threat is not a sufficiently affirm ative act, neither is the m ere failure to w arn of a threat.” Walter, 544 F.3d at 195. (em phasis added). The Court finds Caissie and the cases relied therein controlling. Here, the absence of an allegation that a state actor took som e affirm ative action is com pelling. As em phasized in Bright and underscored in Phillips: Liability . . . is predicated upon the states’ affirm ative acts which work to the plaintiff’s detrim ent in term s of exposure to danger. It is the m isuse of state authority , rather than a failure to use it, that can violate the Due Process Clause. Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 20 0 8) (quoting Bright, 443 F.3d at 282) (em phasis added). For these reasons, Plaintiff fails to identify a constitutional violation. In the alternative, Plaintiff cannot show that Defendants’ behavior violated a clearly established statutory or constitutional right. As a result, the m otion to dism iss is granted. 12 VI. Conclusion For the reasons stated herein, Defendants’ m otion to dism iss is granted because: (a) Defendants enjoy quasi- im m unity from suit, (b) Plaintiff fails to state a claim upon which relief can be granted, and (c) Defendants are cloaked in qualified im m unity. An appropriate Order shall issue. Dated: Novem ber 28, 20 17 s/ J oseph H. Rodriguez HON. J OSEPH H. RODRIGUEZ, United States District J udge 13
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