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Lassoff v. State

February 8, 2006


The opinion of the court was delivered by: Irenas, Senior District Judge


Plaintiff asserts many civil rights and tort claims against a large group of defendants arising out of Plaintiff's physical confrontation with another patron at an Atlantic City casino and the events, including the criminal charges brought against Plaintiff, that followed. Presently before the Court are: (1) the Motion to Dismiss of Defendants State of New Jersey, New Jersey State Police, and New Jersey State Trooper Nazzareno F. Nepi ("Trooper Nepi") (collectively the "New Jersey State Defendants"); (2) the Motion to Dismiss of Defendants Caesar's Entertainment, Inc., and Bally's Park Place, Inc. (collectively "Bally's"); and (3) the Motion to Dismiss of Defendants Mike Flemming and Eric Denmead.


Plaintiff, Samuel Lassoff ("Lassoff") alleges that he was physically "attacked" by Defendant Taylor*fn1 on November 1 or 2, 2002,*fn2 while playing poker at Defendant Bally's Casino ("Bally's") in Atlantic City. According to Lassoff, Taylor grabbed him by the throat and "ripp[ed] his shirt off his neck." (Am. Compl. ¶ 18) Lassoff does not allege what, if any, events led up to the confrontation. Moreover, other than a ripped shirt, Lassoff does not specifically allege what injuries he suffered in the scuffle.*fn3

Bally's security personnel*fn4 were called to the poker table and the New Jersey State Police were contacted. Upon Defendant Trooper Nepi's arrival, he and Bally's personnel "conducted a brief investigation and asked Mr. Lassoff if he wanted to press charges against [Taylor]." (Am. Compl. ¶ 22) Lassoff then left the casino gaming room with the Bally's personnel and Trooper Nepi in order to lodge a formal complaint against Taylor.

Despite Lassoff's allegations that he voluntarily left the room "for the limited purpose of making a complaint against his attacker" (Am. Compl. ¶ 25), he also alleges that he requested that his attorney, Lisa M. Kaplan,*fn5 be present during the "questioning and/or custodial investigation(s)" that followed. (Am. Compl. ¶ 26-27) Allegedly Trooper Nepi and the Bally's personnel intentionally denied Lassoff the assistance of counsel.

Lassoff further asserts that he was taken to a "cell" on the fourth floor of the casino where Trooper Nepi inflicted an "Iraq prison style" beating on Lassoff, "slamming him against the wall" and "stripping him half-naked." (Am. Compl. ¶ 29-30) Afterwards, Bally's personnel and Trooper Nepi allegedly locked Lassoff in the cell and continually ignored Lassoff's repeated requests for his lawyer.

The next day Lassoff was charged with assault and disorderly conduct arising out of the confrontation with Taylor. He was arraigned approximately two weeks later but the charges were ultimately dismissed upon the prosecutor's motion on November 29, 2002.*fn6

Lassoff filed a complaint against Trooper Nepi with the Internal Affairs Division ("IAD") of the New Jersey State Police. Thereafter Trooper Nepi "resurrected the charge of disorderly conduct [against Lassoff] which he re-filed January 6, 2003," allegedly in retaliation for the statements Lassoff made in connection with the IAD complaint. (Am. Compl. ¶ 53-55) Lassoff further alleges that Defendant Assistant Atlantic City Prosecutor Christopher Robinson ("Prosecutor Robinson") directed Trooper Nepi to re-file the disorderly conduct charge*fn7 and "urged the Casino Investigation Unit to lie about [Lassoff's] behavior and actions toward [Trooper Nepi] and others while being escorted off the casino floor." (Am. Compl. ¶ 61) The re-filed charge was eventually "terminated in favor of [Lassoff]." (Am. Compl. ¶62)

Based on these events, Lassoff has filed the present suit against: the State of New Jersey, the New Jersey State Police,*fn8 and Trooper Nepi*fn9 (collectively the "New Jersey State Defendants"); the City of Atlantic City, the Atlantic City Prosecutor's Office, Municipal Prosecutor Billie J. Moore, and Prosecutor Robinson (collectively the "Atlantic City Defendants"); Caesars Entertainment Inc., Bally's Park Place, Inc. ("Bally's);*fn10 "Bally's Security Director," Bally's Surveillance Security Officer Mike Flemming, Bally's Security Supervisor Dori M. Diaz, Bally's Security Officer Eric Denmead; and lastly, Defendant Taylor.*fn11

The ten-count complaint asserts against all Defendants:*fn12 false arrest; false imprisonment and assault and battery (Count 1); Section 1983 claims based on alleged violations of procedural and substantive due process (Counts 2 and 5); intentional and negligent infliction of emotional distress, defamation and false light (Count 3); negligence and gross negligence (Count 4); failure to train and supervise (Count 6); respondeat superior liability for claims asserted in Counts 1-6 (Count 7); conspiracy to commit assault and battery, false arrest and false imprisonment, unlawful search, invasion of privacy and false light and violations of Lassoff's due process rights (Count 8); and malicious prosecution (Count 9). Count 10, entitled "Supplemental State Claims," re-asserts all the state common law torts alleged in the previous nine counts and adds spoliation of evidence and perjury allegations. Lassoff seeks monetary damages on all counts.

The New Jersey State Defendants, Bally's, and Defendants Flemming and Denmead all move to partially dismiss the Amended Complaint.*fn13 First we will address the New Jersey State Defendants' motion, considering arguments regarding Trooper Nepi in his official capacity and then in his individual capacity. Next, we will consider Bally's motion and Flemming and Denmead's motion together, as they are represented by the same counsel and their briefs are practically identical.


Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." In considering a Rule 12(b)(6) motion, the court will accept as true all of the factual allegations contained in the complaint and any reasonable inferences that can be drawn therefrom. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). Dismissal of claims under Rule 12(b)(6) should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Although the court must assume as true all facts alleged, "[i]t is not . . . proper to assume that the [plaintiff] can prove any facts that [are] not alleged." Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Finally, when "confronted with a [12(b)(6)] motion, the court must review the allegations of fact contained in the complaint; for this purpose the court does not consider conclusory recitations of law." Pennsylvania v. PepsiCo., Inc., 836 F.2d 173, 179 (3d Cir. 1988) (emphasis added).



The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced 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. amend. XI. Thus, absent express consent, the Eleventh Amendment renders states generally immune from suit by private parties in federal court. Pa. Fedn. of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002).

Eleventh Amendment immunity extends to an unconsenting state's agencies or departments, provided that the state is the real party interest. MCI Telecomm. Corp. v. Bell Atlantic-Pa. Serv., 271 F.3d 491, 503 (3d Cir. 2001); see also Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984). The Eleventh Amendment also bars a suit against a state official in his or her official capacity because it "is not a suit against the official but rather is a suit against the official's office. As such it is it is no different from a suit against the State itself." Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).*fn14

On the other hand, the Eleventh Amendment does not bar suits for damages against government officials sued in their personal capacities. Garden State Elec. Inspection Servs., Inc. v. Levin, 144 Fed. Appx. 247, 251 (3d Cir. 2005). "In personal capacity suits, a plaintiff seeks to impose personal liability upon an individual officer and recover from the personal assets of that officer." Id. Therefore, the Eleventh Amendment is not implicated because the State is not the real party in interest. Kentucky v. Graham, 473 U.S. 159, 165 (1985).

Accordingly, all claims for compensatory or punitive damages asserted against the State of New Jersey, the New Jersey State Police, and Trooper Nepi in his official capacity will be dismissed. Because we will grant the motion to dismiss in favor of the State of New Jersey and the New Jersey State Police on all counts, and Trooper Nepi's motion to the extent he is sued in his official capacity, we have not considered these Defendants' other arguments for dismissal.*fn15 However, we ...

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