KAREN M. WILLIAMS, Magistrate Judge.
This matter comes before the Court on the Motion to Dismiss filed by The Borough of Pine Hill, New Jersey ("Pine Hill"), The Borough of Pine Hill Police Department ("PHPD"), (Former) Major Fred Costantino ("Costantino"), and Police Chief Christopher Winters ("Winters") (collectively, "Defendants") pursuant to Federal Rule of Civil Procedure 12(b)(6) for Plaintiff's, Diana May ("Plaintiff" or "May"), failure to state a claim upon which relief can be granted. Pursuant to Federal Rule of Civil Procedure 78, the Court has considered the submissions of the parties. For the reasons set forth more fully below, the Court grants Defendants' Motion to Dismiss Counts IV, VI, VII, VIII, XII, XIII, XIV, XV and XVI. Further, Counts I, II, III, V, IX, X, XI, XVII, and XVIII are dismissed without prejudice.
On October 02, 2013, Plaintiff, Diana May, filed a Complaint against Pine Hill, PHPD, Costantino, and Winters ("2013 Complaint") in civil action number 13-cv-5861 ("2013 civil action") which was assigned to the Honorable Robert B. Kugler, U.S.D.J., and the Honorable Ann Marie Donio, U.S.M.J.
Plaintiff's Complaint alleges the following relevant facts, all of which are accepted as true for purpose of the instant Motion to Dismiss. In 1991, Plaintiff May was appointed as the Tax Collector for Pine Hill. 2013 Compl. at ¶ 15, Doc. No. 1 in 2013 civil action. Upon her appointment, May was an unclassified civil servant with tenure which afforded her substantial security in her employment. Id. Throughout her decades-long tenure, May has remained current with her certification, despite a lack of reimbursement by Pine Hill. Id. at ¶ 31. Her certification remains current today. Id.
On November 6, 2007, Mr. Costantino was elected to serve as the Mayor of Pine Hill. Id. at ¶ 16. According to Plaintiff, shortly thereafter, Costantino subjected her to repeated incidents of sexual harassment. Id. at ¶ 17. Dawn Gordon was a personal friend of Defendant Costantino who was working as a Deputy Registrar for the Borough of Pine Hill. Id. at ¶ 25. May became aware that Ms. Gordon had improperly handled and misappropriated tax payments and informed Costantino of same. Id. at ¶¶ 24-25. Specifically, on at least three occasions, Borough tax payments to Ms. Gordon went missing. Id. at ¶ 24.
Plaintiff further alleges that Costantino directed Defendant Winters, Lieutenant of the Pine Hill Police Department, to open a criminal prosecution into her despite an absence of evidence indicating she was engaged in criminal activity. Id. at ¶¶ 13, 27. Over the course of this investigation, Winters requested a personal meeting with May but did not advise her that she was under investigation. Id. at ¶ 28. During the meeting, Winters confined her to a room, intimidated her with threats, elicited a statement from her and failed to advise her of her Miranda rights. Id. at ¶¶ 29-30.
Additionally, Plaintiff asserts that on August 11, 2009, she was terminated from her position and became the subject of a criminal investigation. Id. at ¶¶ 13, 33. At some point, the Defendants filed criminal charges against May. Id. at 32. Plaintiff avers that she was arrested and forced to post bail. Id. at ¶ 33. The course of the investigation into May lasted approximately three years, and consisted of civil proceedings, administrative hearings, and a grand jury investigation. Id. at ¶¶ 33-34. May alleges that these proceedings were conducted despite evidence of her innocence. Id. at ¶ 33. On October 15, 2012, following the testimony of Winters, the Camden County Grand Jury declined to issue a True Bill, and the Camden County Prosecutor's Office declined to investigate the matter further. Id. at ¶ 34. Subsequently, the proposed criminal charges against May were dropped. Id.
May alleges that over the course of the three years of investigations and proceedings, she became aware of the fact that over thirty percent (30%) of Pine Hill employees were under investigation by Winters for improper conduct. Id. at ¶ 35. However, personal friends of Costantino, among them Ms. Gordon, were not among those investigated. Id. May also alleges that shortly after her termination, on September 29, 2009, Costantino falsely certified that he had "no knowledge of any allegation of fraud or suspected fraud affecting the entity received in communications from employees, former employees . . ." Id. at ¶ 36. He made this certification despite the fact that May had advised him about Ms. Gordon. Id. at ¶¶ 25, 36. Furthermore, Pine Hill failed to employ outside counsel or an independent third party to investigate May's allegations of sexual harassment, hostile work environment, and theft of monies. Id. at ¶ 37.
May alleges that the criminal allegations against her were initiated by Defendants as a pretense for terminating her employment. Id. at ¶ 40. The Borough had already begun to interview a replacement for May prior to forcing her out of her office on August 11, 2009. Id. at ¶ 38.
This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343(3), as well as supplemental jurisdiction over the state-law claim under 28 U.S.C. § 1367.
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss an action for failure to state a claim upon which relief can be granted. When evaluating a motion to dismiss, "`courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). Thus, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
To make this determination, courts conduct a three-part analysis. Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). "First, the court must `tak[e] note of the elements a plaintiff must plead to state a claim.'" Id. (quoting Iqbal, 556 U.S. at 675). "Second, the court should identify allegations that, `because they are no more than conclusions, are not entitled to the assumption of truth.'" Id. at 131 (quoting Iqbal, 556 U.S. at 679). Last, "`where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'" Id. (quoting Iqbal, 556 U.S. at 679). This plausibility determination is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. A complaint cannot survive where a court can only infer that a claim is merely possible rather than plausible. Id.
In cases arising under § 1983
Id. at 657-658(quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). Further, "[c]ustom requires proof of knowledge and acquiescence by the decisionmaker." Id. (citing Watson v. Abington Twp., 478 F.3d 144, 154 (3d. Cir. 2007)). "Once a § 1983 plaintiff identifies a municipal policy or custom, he must `demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged.'" Berg v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000) (quoting Bd. of County Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997)). In other words, Plaintiff must allege a causal link between the policy or custom and the alleged constitutional deprivation. Kranson v. Valley Crest Nursing Home, 755 F.2d 46, 51 (3d Cir. 1985).
Defendants first argue that Plaintiff fails to sufficiently plead a Monell claim because she has failed to clearly identify a policy or a custom. Defs.' Br. 13. On the other hand, Plaintiff argues that the compliant sufficiently alleges that the Borough had a custom of violating its employees' rights. Pl.'s Br. 18. Plaintiff argues that she alleges that Costantino improperly instructed the PHPD to investigate her and during the investigation the Borough violated her constitutional rights through false criminal charges as well as through the practices and customs utilized by PHPD. Id.
Here, the Court agrees with Defendants in that Plaintiff has failed to sufficiently allege facts to establish a Monell claim. First, Plaintiff's Complaint does not specify a policy or custom which caused a deprivation of her constitutional rights. In this regard, Plaintiff has not alleged that Pine Hill, or a decisionmaker on behalf of Pine Hill, issued an official proclamation, policy, or edict or that there was permanent and well-settled custom. "`To satisfy the pleading standard, [a plaintiff] must identify a custom or policy and specify what exactly that custom or policy was.'" Lapella v. City of Atl. City, No. 10-2454, 2012 WL 2952411, at *6 (D.N.J. July 18, 2012) (citing McTernan, 564 F.3d at 658). In her brief, Plaintiff alleges that her Complaint refers to "unconstitutional practices" such as Pine Hill's "arrest policy," "conflict of interest policy," and its custom of ignoring basic standard operating practices. Pl.'s Br. 18. In her Complaint, Plaintiff alleges:
Because each of these allegations are conclusory in nature, the Court need not credit same. Even if the Court were to deem these allegations factual, these allegations would only establish that Costantino and/or Winters failed to follow Pine Hill's policies, not that the policies were deficient, improper or caused the deprivation of Plaintiff's constitutional rights. See Kranson, 755 F.2d at 51 ("[T]he carelessness of an employee in failing to follow a policy or in misunderstanding its meaning may establish the negligence of the employee but does not fasten liability on the governmental agency."). Indeed, in Count I of the Complaint, Plaintiff fails to allege the constitutional right Defendants' violated.
The only other facts in support of a policy or custom alleged by Plaintiff, in her Complaint and even in her brief in opposition to the Motion, relate to actions taken against Plaintiff, however, actions taken against Plaintiff alone are insufficient to establish custom that can give rise to municipal liability. See Murdock v. Borough of Edgewater, No. 08-2268, 2011 WL 5320995, * 17 (D.N.J. Nov. 2, 2011). As such, on the facts alleged, Plaintiff fails to sufficiently plead a Monell claim. However, the Court will allow Plaintiff to attempt to cure these deficiencies by permitting Plaintiff to file a motion to amend the Complaint. See Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010) ("[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile.").
With regard to Plaintiff's allegation of the failure to train, "a Plaintiff must (1) identify the deficiency in training; (2) prove that the deficiency caused the alleged constitutional violation; and (3) prove that the failure to remedy the deficiency constituted deliberate indifference on the part of the municipality." Lapella v. City of Atl. City, 2012 WL 2952411, at *7 (citing Malignaggi v. County of Gloucester, 855 F.Supp. 74, 77) (D.N.J. 1994)). There must be a causal link between the training deficiency and the alleged constitutional violation. Id. "[I]n order for a municipality's failure to train or supervise to amount to deliberate indifference, it must be shown that (1) municipal policymakers know that employees will confront a particular situation; (2) the situation involves a difficult choice or a history of employees mishandling; and (3) the wrong choice by an employee will frequently cause deprivation of constitutional rights." Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999). "Generally, deliberate indifference can be shown only by demonstrating `[a] pattern of similar constitutional violations by untrained employees,' though a single incident can suffice in the rare case where the unconstitutional consequence of the failure to train is patently obvious." Lapella, 2012 WL 2952411, at *7 (citing Connick v. Thompson, 131 S.Ct. 1350, 1360 (2011)).
Lapella is instructive in this regard. In Lapella, the Court dismissed plaintiff's failure to train claim because plaintiff failed to allege: (1) specific shortcomings of the municipality's training programs regarding investigations, (2) how the deficiency caused the injury; (3) deliberate indifference on the part of the decisionmaker. Id. at *6-7. In this regard, plaintiff alleged that:
Id. at *7-8. The court in Lapella found that plaintiff failed to establish a specific shortcoming in defendant Atlantic City's programs, as the complaint contained only conclusory allegations regarding Atlantic City's failure to train. Id. at *8. Further, the court found that plaintiff did not plausibly allege how the deficiency caused her injury because there was insufficient factual support that insufficient training encouraged the defendant officer to engage in unlawful conduct. Id. Last, the court found that, while plaintiff alleged that Atlantic City knew that defendant officer had a history of mistreating civilians, plaintiff failed to allege facts that the resulting outcome was a result of the policy as opposed to the officer's individual shortcomings. Id. Further, the court indicated that plaintiff failed to allege that defendant officer's alleged conduct was bound to happen and the police department ignored said risk. Id.
Similarly here, Plaintiff fails to sufficiently plead a claim for failure to train. First and foremost, in Count V, the Court assumes that Plaintiff's failure to train claim is based upon the investigation performed by Winters.
These facts do not plausibly state a failure to train claim. First, Plaintiff's Complaint does not allege any facts sufficient to establish the specific shortcomings of Pine Hill's training programs regarding investigations. Moreover, because the Complaint does not contain allegations establishing the specific shortcomings of Pine Hill's training programs, as a corollary, same could not, and does not, plead facts regarding how the deficiency caused her injury. Indeed, as noted above, Count V fails to allege a specific constitutional violation. Last, Plaintiff fails to allege deliberate indifference on the part of the decisionmaker because the Complaint is devoid of any facts alleging "[a] pattern of similar constitutional violations by untrained employees." Lapella, 2012 WL 2952411, at *7. As such, Plaintiff fails to set forth facts which state a claim for failure to train. However, here to, the Court will permit Plaintiff to cure any deficiencies via a motion to amend.
With regard to Counts II and III, there appears to be some confusion as to the claims Plaintiff is attempting to plead. Defendants characterized Counts II and III as Monell claims.
To prevail on a malicious prosecution claim under section 1983, a plaintiff must show that: (1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in the plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding. McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009). The only apparent issue here is whether Plaintiff has adequately pled probable cause. "Probable cause is defined as `reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious [person] in the belief that the accused is guilty of the offense with which he is charged.'" Land v. Helmer, 843 F.Supp.2d 547, 550 (D.N.J. 2012). There are two allegations relevant to the issue of probable cause. First, Plaintiff alleges that Defendants' actions constituted a de facto termination and the illegal police investigation of Plaintiff was without probable cause. This is conclusory and thus the Court need not credit same. Plaintiff also alleges:
2013 Compl., ¶ 32. This is also a conclusory allegation primarily because Plaintiff does not allege facts establishing the lack of "standing" or how this was an "unsubstantiated conclusion" on the part of Defendants. Indeed, Plaintiff fails to even set forth facts that would lead to the conclusion that the investigation was improper because there were no issues with her employment documents. Moreover, Plaintiff baldly states that the charges were manufactured but does not allege what the charges were or how same were "manufactured." While Plaintiff alleges that her municipal tax collector certification is, and has remained, current, this begs the question of whether or not she misrepresented her credentials on an employment document in violation of the law. There are no allegations relating to same. As such, Plaintiff fails to sufficiently allege facts to permit an inference that the proceeding was initiated without probable cause. As noted above, Plaintiff is granted leave to correct said deficiency by way of motion to amend the Complaint.
The New Jersey Civil Rights Act ("CRA") provides a private cause of action to a person who
N.J.S.A. 10:6-2(c).
In her Complaint, Plaintiff alleges that Defendants violated her due process and equal protection rights in violation of the Fourteenth Amendment and the New Jersey Constitution. Defendants argue that said claims are barred by the applicable statute of limitations—two years—as such, same should be dismissed. In response, Plaintiff then argues in her brief that her claims are not barred because Defendants violated her "Fourth Amendment" rights and, further, her CRA claims are "rooted in malicious prosecution." Plaintiff also argues that she has brought a proper procedural due process claim based upon the fact that Winters and Costantino abused the criminal process.
Although Plaintiff's brief references the Fourth Amendment, Counts IX, X and XI only reference the Fourteenth Amendment-not the Fourth Amendment. Thus, these counts of the Complaint do not allege, and have not placed Defendants on notice of, a claim for violation of Plaintiff's Fourth Amendment rights. Further, to the extent that Plaintiff claims that the foregoing counts set forth a claim for either abuse of process or malicious prosecution as well, although same is certainly not apparent from the pleading, for the reasons expressed in connection with the Court's § 1983 analysis with regard to the malicious prosecution claims, Plaintiff fails to plead sufficient facts to state a claim for same and will be permitted leave to file a motion to amend. See Hottenstein v. City of Sea Isle City, 977 F.Supp.2d 353, 365 (D.N.J. 2013) (" This district has repeatedly interpreted NJCRA analogously to § 1983.").
Here again, Defendants, as argued by Plaintiff, mischaracterized this count as a conspiracy claim pursuant to New Jersey law. Plaintiff argues, in her brief, that it is a civil conspiracy claim pursuant to 42 U.S.C. § 1985.
To state a claim for civil conspiracy pursuant to § 1985, plaintiff must allege "that defendants, motivated by a class-based invidiously discriminatory animus, conspired to deprive plaintiff of the equal protection rights of the laws or of equal privileges and immunities under the laws and that plaintiff was thereby injured." Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 79 (3d Cir. 1989).
Here, Plaintiff fails to assert any facts from which any type of conspiratorial agreement between the Defendants can be inferred. Plaintiff alleges that Defendant Costantino instructed Winters to open a criminal investigation into Plaintiff and that Defendant Winters knew or should have known that Defendant Costantino had a personal vendetta against Plaintiff. Compl. ¶¶ 27, 30(f). Further, Plaintiff alleges that the Defendants manufactured false charges and claims against her. Compl. ¶ 32. Plaintiff alleges that the Defendants "conspired" in retaliation for her complaints about unlawful and/or fraudulent conduct by Defendant Costantino. Other than baldly claiming that Defendants "conspired", there are no facts to support a finding that the Defendants reached an agreement and/or had the requisite "meeting of the minds" to form a conspiracy. Livingston v. Borough of Edgewood, 430 Fed. Appx. 172, 178-9 (3d Cir. 2011). Furthermore, Plaintiff specifically alleges that the "conspiracy" was in retaliation for her complaints about unlawful and/or fraudulent conduct by Defendant Costantino, as opposed to being "motivated by a class-based invidiously discriminatory animus" as required to state a § 1985(3) civil conspiracy claim. Therefore, the alleged facts are insufficient to state a § 1985(3) claim.
Finally, Defendants allege that Plaintiff's Complaint should be dismissed pursuant to the entire controversy doctrine because each count of the Complaint arises from the same facts and history set forth in Plaintiff's 2010 Complaint. However, because there has been no prior state judgment, the entire controversy is not applicable in this case. "Under the entire controversy doctrine, a party cannot withhold part of a controversy for separate later litigation even when the withheld component is a separate and independently cognizable cause of action." Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 137 (3d Cir. 1999). In Paramount Aviation, the Third Circuit held "that the entire controversy doctrine is not the right preclusion doctrine for a federal court to apply when prior judgments were not entered by the courts of New Jersey." Id. at 138. Here, the 2010 Complaint was removed to this Court and, subsequently, Judge Irenas has granted, at least in part, a motion to dismiss and a motion for summary judgment. Thus, the entire controversy doctrine does not preclude the 2013 Complaint because said doctrine does not apply to the 2010 Complaint in that it was not the subject of a prior judgment entered by a court in New Jersey.
In conclusion, Defendants' Motion to Dismiss is granted with regard to Counts IV, VI, VII, VIII, XII, XIII, XIV, XV and XVI, thus, these claims shall be dismissed with prejudice. Further, Counts I, II, III, V, IX, X, XI, XVII, and XVIII are dismissed without prejudice.
An appropriate order will be issued.
