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Paul L. Schirmer v. Douglas Penkethman


March 28, 2011


The opinion of the court was delivered by: Bumb, United States District Judge:

NOT FOR PUBLICATION [Docket No. 21, 23]


I. Introduction

This matter comes before the Court on motions for partial dismissal brought by Defendants Cape May County ("the County") and Jeffrey Devico, Christopher Leusner, Douglas Osmundsen, and Clinton Stocker (hereafter collectively referred to as the "Middle Township Police Defendants"). [Dkt. No. 21, 23.] Defendants Douglas Penkethman and Michael Kopakowsi (hereafter the "School District Defendants") join in these motions. [Dkt. No. 31.] For the following reasons, Defendants' motions will be granted.

II. Background*fn1

Middle Township Elementary School employed Plaintiff Paul L. Schirmer ("Plaintiff") as a teacher. [Amend. Compl. ¶ 4.] In March 2008, Defendants Douglas Penkethman, the principal of Middle Township Elementary School, and Michael Kopakowski, the superintendent for the Middle Township School District, reported allegations that Plaintiff had inappropriately touched students at the school. (Id. at ¶¶ 5-6, 18.) Defendants Corporal Jeffrey Devico, Detective Douglas Osmundsen, and Detective Clinton Stocker of the Middle Township Police and Detective D. Holt and Lieutenant Lynne Frame of the Cape May County Prosecutor's Office (collectively referred to as the "the Investigating Defendants") investigated the reported misconduct. (Id. at ¶¶ 8-12; 22, 30.) As a result of the reports, Plaintiff was arrested, detained, required to respond to numerous court appearances and suffered loss of professional standing and reputation. (Id. at ¶¶ 1, 42-43.) Plaintiff was also suspended, pending a decision to terminate his employment. (Id. at ¶ 21.) The charges against Plaintiff, however, were later dismissed. (Id. at ¶ 44.)

III. Standard of Review

"To 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." Sheridan v. NGK Metals Corp., 609 F.3d 239, 263 n. 27 (3d Cir. 2010) (quoting Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949 (2009)) (internal quotation marks omitted). "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 misconduct alleged." Id. (quoting Iqbal, 129 S.Ct. at 1949).

The Court conducts a three-part analysis when reviewing a claim:

First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, "because they are no more than conclusions are not entitled to the assumption of truth." Id. at 1950. Finally, "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. Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009)("...[A] complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts.").

IV. Discussion

Defendants raise several arguments for dismissal. The Court addresses each in turn.

A. Claims Brought Pursuant to § 1983 Plaintiff states several claims pursuant to 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State...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 immunities 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.Id.

Therefore, to state a claim under this Section, a plaintiff must allege two elements: (1) "the violation of a right secured by the Constitution and laws of the United States" and (2) "that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). "As in any action under § 1983, the first step is to identify the exact contours of the underlying right said to have been violated." County of Sacramento v. Lewis, 523 U.S. 833, 842 n. 5 (1998). With this guidance in mind, the Court turns to Plaintiff's Amended Complaint.

1. The Investigating Defendants

In Count One, Plaintiff avers that the Investigating Defendants' "conduct constitute[d] an intentional violation of the Plaintiff's rights to be free of unconstitutional arrest and wrongful or malicious criminal charges and prosecution, under the Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution."*fn2 Amend. Compl. ¶ 47. The Court understands Plaintiff to state a Fourth Amendment claim,*fn3 applicable to the states through the Fourteenth Amendment. See Maryland v. Pringle, 540 U.S. 366, 369 (2003). Claims for unlawful arrest and false imprisonment are both cognizable under the Fourth Amendment.*fn4 See Reedy v. Evanson, 615 F.3d 197, 211 (3d Cir. 2010) (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995))("It is well-established that the Fourth Amendment 'prohibits a police officer from arresting a citizen except upon probable cause.'"); Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995) ("A false imprisonment claim under § 1983 which is based on an arrest made without probable cause is grounded in the Fourth Amendment's guarantee against unreasonable seizures.").

Plaintiff captions Count Two of his Amended Complaint with the parenthetical, "Absence of legal and factual justification for the prosecution of the Plaintiff by Defendants Devico, Stocker, Osmundsen, Holy and Frame." The Court presumes that Plaintiff intended Count Two to state a § 1983 claim because he seeks attorney's fees pursuant to 42 U.S.C. § 1988, which permits courts discretion to award fees in civil rights cases. Thus, Count Two appears to be a Fourth Amendment malicious prosecution claim against the Investigating Defendants. A malicious prosecution claim is cognizable under the Fourth Amendment. See Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998) (holding that a malicious prosecution claim is grounded in the Fourth Amendment concept of "seizure"). To the extent that Plaintiff intended to state different or supplemental claims in Counts One and Two, however, he must clearly identify such claim in an amended complaint to be filed within thirty days from the date of this Opinion. Beyond this deadline, he must seek leave to amend.

Given the Court's construction of Count One and Count Two, dismissal is unwarranted because Defendants do not seek dismissal of Plaintiff's Fourth Amendment claims.*fn5 See Middle Township Police Defendants Br. in Supp. of Dismissal at 1. [Dkt. No. 23.]

2. Municipal Liability

In Count Three, Plaintiff also asserts claims against Cape May County and Police Chief Leusner for violating unspecified federal rights. See Amend. Compl. ¶ 59 ("The various injuries suffered by Plaintiff all proximately result from failures of the supervisory Defendants to protect the rights, privileges and immunities of Plaintiff as guaranteed by the United States Constitution and laws of the United States, in violation of 42 U.S.C. § 1983."). The County argues that Plaintiff's claim for municipal liability must be dismissed because he fails to identify a policy or custom that caused him to suffer a constitutional violation.

"Under 42 U.S.C. § 1983, municipal defendants cannot be held liable under a theory of respondeat superior; municipal liability only arises when a constitutional deprivation results from an official custom or policy." Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir. 1998) (citing Monell v. Department of Social Servs. of City of N.Y., 436 U.S. 658, 691-94 (1978)). "'Policy' includes official proclamations made by a municipal decisionmaker with final authority, and 'custom' is defined as 'practices of state permanent and well settled as to virtually constitute law.'" Kelly v. Borough of Carlisle, 622 F.3d 248, 263 (3d Cir. 2010) (quoting Berg v. County of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000)) (internal quotation marks and citation omitted).

Plaintiff alleges that the County and Chief Leusner "knowingly and/or with deliberate indifference recklessly failed to fulfill" their "duty to hire, train, supervise and discipline subordinates." Amend. Compl. ¶ 56. Plaintiff further avers that these Defendants "failed to institute polices and/or practices to prevent[] the violation of rights set forth herein," that this "failure[] prevent the violation of citizens' or suspects' constitutional rights[] amounts to a pattern, practice and/or policy of lax or no supervision" and that "[t]he various injuries suffered by Plaintiff all proximately result[ed]" from the Defendants' failure to protect Plaintiff's rights. Amend. Compl.¶¶ 56-59.

To the extent Plaintiff seeks to hold the County directly responsible for the actions of the Investigating Defendants, such claim is clearly barred by Monell. See Montgomery, 159 F.3d at 127. To the extent Plaintiff seeks to hold the County liable due to a pattern or practice that led to the violation of Plaintiff's rights, the Court agrees that Plaintiff fails to identify the offending custom or practice. See McTernan v. City of York, PA, 564 F.3d 636, 658 (3d Cir. 2009) ("To satisfy the pleading standard, [a plaintiff] must identify a custom or policy, and specify what exactly that custom or policy was.").

Nor does Plaintiff establish a factual predicate for knowledge or acquiescence to any wrongful conduct by Cape May County. The Third Circuit has "held that a failure to train, discipline or control can only form the basis for section 1983 municipal liability if the plaintiff can show both contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents and circumstances under which the supervisor's actions or inaction could be found to have communicated a message of approval to the offending subordinate." Montgomery, 159 F.3d at 127 (citing Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 (3d Cir. 1997)). Plaintiff here pleads no facts to suggest that the County or a County supervisor had contemporaneous knowledge of Plaintiff's arrest, detention or prosecution. Plaintiff does identify Chief Leusner as "the chief policymaker and supervisor for Middle Township Police Department and the official for the hiring, training, discipline, and supervision of the police officers" but pleads no facts suggesting that the Chief had policymaking authority for Cape May County. Amend. Compl. ¶ 7 (emphasis added). See Santiago, 629 F.3d at 135 (footnote omitted)("The complaint does not allege that Chief Murphy had policymaking authority, nor does it allege what action he took that could fairly be said to be policy.").

Nor has Plaintiff pled any facts that suggest a pattern of similar incidents such that a County supervisor's actions or inaction could be interpreted as encouraging the violation of Plaintiff's rights. Plaintiff does state in his Amended Complaint that he believes that discovery will show "further specific activities and knowing errors of commission and omission will be discovered, which will demonstrate [a] knowing violation of the Plaintiff's constitutional rights." Amend. Compl. ¶ 33. The Iqbal standard, however, requires Plaintiff to present a factual basis for the claim at the pleading stage. The Third Circuit explained in Santiago:

[w]e recognize that plaintiffs may face challenges in drafting claims despite an information asymmetry between plaintiffs and defendants. Given that reality, reasonable minds may take issue with Iqbal and urge a different balance between ensuring, on the one hand, access to the courts so that victims are able to obtain recompense and, on the other, ensuring that municipalities and police officers are not unnecessarily subjected to the burdens of litigation. See Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 Duke L.J. 1, 2 (2010) (arguing that Twombly and Iqbal give "too much attention to claims ... of expense and possible abuse and too little on citizen access, a level litigation playing field, and the other values of civil litigation"). The Supreme Court has struck the balance, however, and we abide by it 629 F.3d at 134 n. 10.

Plaintiff's claim against Cape May County is dismissed without prejudice. The Court permits Plaintiff thirty days from the date of this Opinion to amend his claim. Beyond this deadline, he must seek leave to amend.

Although not raised by the parties, the Court further notes that to the extent Plaintiff seeks to hold Chief Leusner directly liable for the conduct of his subordinates, such claim is also barred. See Santiago, 629 F.3d at 128 (quoting Iqbal, 129 S.Ct. at 1948, for the proposition that "[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior."). Plaintiff also fails to plead any facts suggesting that the Chief personally participated in the violation of Plaintiff's rights, directed others to violate Plaintiff's rights or otherwise had knowledge of and acquiesced in the alleged violations. See Santiago, 629 F.3d at 129 (quoting A.M. ex rel. J.M.K. v. Luzerne County Juvenile Detention Ctr., 372 F.3d 572, 586 (3d Cir. 2004)) ("'[A] supervisor may be personally liable...if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in his subordinates' violations.'"). Plaintiff does allege that "the Chief has ratified and condoned their actions and not issued or taken corrective action toward these officers." Amend. Compl. ¶ 39. This allegation, however, does not suggest that the Chief personally participated in or directed the alleged violation of Plaintiff's rights. Nor does it suggest that the Chief had knowledge of and acquiesced in the violation of Plaintiff's rights.

Citing Sample v. Diecks, the Third Circuit laid out the elements of a § 1983 supervisory liability claim in Brown v. Muhlenberg Township:

The plaintiff must (1) identify the specific supervisory practice or procedure that the supervisor failed to employ, and show that (2) the existing custom and practice without the identified, absent custom or procedure created an unreasonable risk of the ultimate injury, (3) the supervisor was aware that this unreasonable risk existed, (4) the supervisor was indifferent to the risk; and (5) the underling's violation resulted from the supervisor's failure to employ that supervisory practice or procedure. ..."[I]t is not enough for a plaintiff to argue that the constitutionally cognizable injury would not have occurred if the superior had done more than he or she did." Sample, 885 F.2d at 1118. Rather, the plaintiff must identify specific acts or omissions of the supervisor that evidence deliberate indifference and persuade the court that there is a "relationship between the 'identified deficiency' and the 'ultimate injury.'" Id. 269 F.3d 205, 216 (3d Cir. 2001) (quoting 885 F.2d 1099, 1118 (3d Cir. 1989)), rehearing en banc denied, 273 F.3d 390 (3d Cir. 2001). Plaintiff has not pled sufficient facts to state a plausible claim for supervisory liability. His claim against Chief Leusner is dismissed without prejudice. The Court permits Plaintiff thirty days from the date of this Opinion to amend his claim. Beyond this deadline, he must seek leave to amend.

3. School District Defendants

In Count Four, Plaintiff seeks to hold the School District Defendants liable under § 1983 for failing to fulfill an alleged duty "to protect both faculty and students from obviously false accusations" and for failing "to institute policies and/or practices to prevent[] the violation of rights set forth herein." Amend. Compl. ¶ 61. Defendants note that Plaintiff failed to identify a specific constitutional violation in Count Four. See Dkt. Ent. 31. Given, however, that Plaintiff incorporates his previous allegations in Count Four, the Court understands Plaintiff to allege a Fourth Amendment claim against these Defendants.

Plaintiff alleges that these Defendants provided false information to law enforcement. See Amend. Compl. ¶ 17 ("Despite any real evidence of criminal conduct, Penkethman and Kopakowski complained to law enforcement officers of the matter, with the purpose of triggering an investigation of alleged criminal conduct."). Plaintiff further alleges that these Defendants did so with the intent of instituting a prosecution. See Amend. Compl. ¶ 20 ("In lieu of conducting a professional and objective investigation of the complaints lodged by students, Defendants Penkethman and Kopakowski, with deliberate indifference to the reputation and civil rights of the Plaintiff, referred the allegations to the Middle Township Police Department with either a recommendation or with assent that [Plaintiff] be prosecuted for certain crimes which he obviously did not commit."). The Court reads Plaintiff's Amended Complaint as stating a claim for malicious prosecution*fn6 against the School District Defendants as complaining witnesses. See, e.g., Merkle v. Upper Dublin School Dist., 211 F.3d 782, 794 (3d Cir. 2000) ("The action of the School District in initiating the criminal proceedings and pressing unfounded criminal charges against Merkle can render the District liable for its major role in a malicious prosecution.").

The School District Defendants correctly argue that they were duty-bound to report incidents of child abuse. Plaintiff, however, alleges that Defendants reported such incidents "[d]espite any real evidence of criminal conduct" and had no "basis upon which to form a reasonable belief as to the credibility of these untrue allegations." Amend. Compl. ¶¶ 17, 18. At the motion to dismiss stage, the Court must construe the allegations in the Amended Complaint in a light most favorable to Plaintiff. Thus, the Court finds that Plaintiff states a plausible claim for relief.*fn7

To the extent that Plaintiff intended to state a different or supplemental claim in Count Four, however, he must clearly identify such claim in an amended complaint to be filed within thirty days from the date of this Opinion. Beyond this deadline, he must seek leave to amend.

4. Fourteenth Amendment

Although not pled as a separate count, Plaintiff's briefing suggests that he intended to state a Fourteenth Amendment due process claim for deprivation of a liberty interest in reputation.*fn8 See Pl. Opp. Br. at 4. [Dkt. Ent. 30] Individuals do possess a liberty interest in reputation that is protected by due process. See Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971). Courts evaluating such claims apply the "stigma-plus" test. See Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006). The Third Circuit explained:

In the public employment context, the "stigma-plus" test has been applied to mean that when an employer "creates and disseminates a false and defamatory impression about the employee in connection with his termination," it deprives the employee of a protected liberty interest. Codd v. Velger, 429 U.S. 624, 628 (1977). The creation and dissemination of a false and defamatory impression is the "stigma," and the termination is the "plus." When such a deprivation occurs, the employee is entitled to a name-clearing hearing.

To satisfy the "stigma" prong of the test, it must be alleged that the purportedly stigmatizing statement(s)(1) were made publicly, Bishop v. Wood, 426 U.S. 341, 348, 96 (1976); Chabal v. Reagan, 841 F.2d 1216, 1223-1224 (3d Cir. 1988); Anderson v. City of Philadelphia, 845 F.2d 1216, 1222 (3d Cir. 1988), and (2) were false. Codd, 429 U.S. at 627-629; Fraternal Order of Police v. Tucker, 868 F.2d 74, 82-83 (3d Cir. 1989).Id.

The liberty interest in reputation, however, "is not accorded substantive due process protection."*fn9 Austin v. Neal, 933 F.Supp. 444, 455-56 (E.D. Pa. 1996)(citing In re Selcraig, 705 F.2d 789, 796-97 (5th Cir. 1983); Brown & Kerrigan, 42 U.S.C. § 1983: The Vehicle for Protecting Public Employees' Constitutional Rights, 47 Baylor L.Rev. 619, 645 (1995)). "Rather, the right accorded is that of procedural due process, specifically the right to an opportunity to refute the charges and clear one's name." Id. (citing Codd, 429 U.S. at 627; Paul v. Davis, 424 U.S. 693, 710 (1976); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972); Brennan v. Hendrigan, 888 F.2d 189, 196 (1st Cir. 1989); Doe v. U.S. Dep't of Justice, 753 F.2d 1092, 1102-03 (D.C. Cir. 1985)).

In his opposition brief, Plaintiff avers that stigmatizing statements were made against him, which were false and led to his wrongful arrest and suspension. See Merkle, 211 F.3d at 795 ("An arrest is a serious matter, especially an arrest of a public school teacher whose professional career instantaneously is put in jeopardy by stigmatic public charges."). However, "it is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss." Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988)(quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)). Plaintiff is granted thirty days to amend should he choose to pursue this claim.

B. New Jersey Civil Rights Act

Plaintiff also purports to state a claim pursuant to the New Civil Rights Act ("NJCRA"). In support of his claim, Plaintiff incorporates the preceding allegations of the Complaint and avers simply: "The Plaintiffs' rights under the New Jersey Civil Rights Act have been violated by all Defendants." Amend. Compl. ¶ 68. Clearly, such allegation must be disregarded as a "threadbare recital[] of the elements of a cause of action, supported by mere conclusory statements...." Iqbal, 129 S.Ct. at 1949. Plaintiff fails to identify the applicable subsection of the NJCRA, but even presuming that Plaintiff brings his claim pursuant to N.J. Stat. Ann. § 10:6-2(c)*fn10 , Plaintiff fails to identify (1) the specific "rights" which have been deprived him; and (2) which Defendants deprived him of such right. See, e.g., Matthews v. New Jersey Institute of Technology, 717 F.Supp.2d 447, 452 (D.N.J. 2010)("Matthews' original Complaint failed to identify which federal or state constitutional 'rights, privileges, or immunities' had been interfered with."). Thus, Count Five of Plaintiff's Amended Complaint is likewise dismissed without prejudice. Plaintiff is granted thirty days to assert a proper basis for a claim arising under the NJCRA.

C. Punitive Damages

Plaintiff concedes that he seeks punitive damages against the Middle Township Defendants in their individual capacity. See Pl. Opp. Br. at 6-7. Thus, Defendants' motion to dismiss Plaintiff's punitive damages claims against these Defendants in their official capacity is granted. Plaintiff further concedes that punitive damages may not be awarded against a municipality. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Therefore, any such claim against Cape May County is dismissed.

Defendants also move to dismiss the punitive damages component of Plaintiff's NJCRA claim. Given that Plaintiff's claim under this Act has been dismissed, the Court need not address this issue.

V. Conclusion

For the aforementioned reasons, Defendants' Motions for Partial Dismissal are granted. Plaintiff's claims against Cape May County and Chief Christopher Leusner are dismissed without prejudice. Plaintiff's claims brought pursuant to the New Jersey Civil Rights Act are also dismissed without prejudice. An appropriate Order will issue this date.


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