NOEL L. HILLMAN, District Judge.
This matter concerns claims by Plaintiff, Dana German-Bunton, the mother of Richard Bard, the decedent, arising out of the shooting death of Bard by Defendant City of Vineland ("City") police officers. In her original and amended complaint,
On October 19, 2017, the Court granted the motion of the City of Vineland, its current police chief, Rudy Beu, and its former police chief, Timothy Codispoti, to dismiss Plaintiff's claims. (Docket No. 18.) The Court afforded Plaintiff leave to file a second amended complaint against those Defendants if she could do so in compliance with Federal Civil Procedure Rules 8 and 11 and the standards set forth by
On July 20, 2018, the Court granted Defendants' motion to dismiss Plaintiff's second amended complaint. (Docket No. 27.) The Court held that Plaintiff's second amended complaint failed to plead facts to suggest that the police chiefs, as policymakers for the City of Vineland, made a deliberate choice to promulgate, implement, or maintain the alleged policies and customs and training failures. The Court further found that Plaintiff's second amended complaint also failed to provide facts to suggest that any such policies, customs, or training failures proximately caused the officers' actions during the incident. Thus, the Court again dismissed Plaintiff's claims brought under
From the time Plaintiff filed her original complaint through the Court's decision dismissing, for the second time, Plaintiff's
On August 23, 2018, Plaintiff responded that she had identified the officers and she asked for forty-five days to file an amended complaint. (Docket No. 29.) In consideration of Plaintiff's letter and the Court's prior Opinions, the Court directed Plaintiff to file a motion for leave to file an amended complaint pursuant to Fed. R. Civ. P. 15(c) and N.J. Ct. R. 4:26-4 no later than September 21, 2018. (Docket No. 30.) The Court had previously explained that N.J. Ct. R. 4:26-4 — the "fictitious party rule" applicable in federal court — permits a plaintiff to preserve a claim against a yet unidentified potential defendant who may have contributed to the plaintiff's injuries, so long as the plaintiff, via a motion prior to judgment, seeks to amend the complaint to state the defendant's true name, and the motion is accompanied by an affidavit explaining the manner in which that information was obtained, along with evidence of the plaintiff's due diligence. (Docket No. 18 at 15 n.4, citing
Plaintiff filed a motion for leave to amend and attached a proposed third amended complaint, which is currently pending. (Docket No. 31.) The motion does not address N.J. Ct. R. 4:26-4, and it does not explain why Plaintiff had not named the officers previously. The proposed third amended complaint substitutes the "John Does" for the real identities of the officers — Christopher Puglisi and Gerard Moughan. However, the proposed third amended complaint also contains all the same claims the Court previously dismissed twice, except for the elimination of any reference to former police chief Codispoti. (Docket No. 31-3.)
Defendants have opposed the filing of the proposed third amended complaint. (Docket No. 35.) First, Defendants point out that none of the claims against the City or the police chiefs has changed from the prior dismissed complaints, and those claims should not be allowed to proceed. On that point, the Court agrees. Regurgitated claims that have already been dismissed twice and have no new basis for assertion cannot proceed, for all the same reasons the Court expressed in the prior two opinions.
Second, Defendants argue that Plaintiff has asserted claims against the two police officers, Christopher Puglisi and Gerard Moughan, for excessive force,
The factual allegations in Plaintiff's proposed third amended complaint are as follows:
(Docket No. 31-3 at 3-4.)
The only claim advanced against Moughan is asserted collectively with Puglisi for excessive force: "Defendants used excessive force thereby violating Plaintiffs' rights under the laws of the Constitution of the United States, in particular the 4th and 14th Amendments and his rights under the Constitution laws of New Jersey. In doing so, Defendants willfully and maliciously caused the death of Richard Bard. The actions committed by Defendants constitute intentional misconduct, excessive use of force and deliberate indifference to Plaintiffs' constitutional rights which caused Richard Bard's death, in violation of Plaintiffs' rights as previously set forth in the above paragraphs." (Docket No. 31-2 at 5-6.)
The Court surmises that by Plaintiff substituting a John Doe Officer defendant with Moughan, Moughan must have been present or involved in the Bard shooting in some capacity. That the Court must guess as to Moughan's involvement is fatal to Plaintiff's claims against him.
It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Following the
Here, there are literally no facts in Plaintiff's proposed third amended complaint regarding Moughan that the Court can separate from the legal claim that Moughan committed excessive force against Bard. As the Supreme Court instructed, this formulaic recitation of the elements of a cause of action without any facts "`will not do.'"
Consequently, the Court will grant Plaintiff's motion for leave to file a third amended complaint, but only for Plaintiff's claims asserted against City of Vineland Police Officer Christopher Puglisi in his individual capacity. All other claims shall be stricken from the proposed amended complaint. Because the third amended complaint supersedes the prior versions in providing the blueprint for the future course of a lawsuit,
An appropriate Order will be entered.