The opinion of the court was delivered by: Honorable Jerome B. Simandle
SIMANDLE, District Judge:
This matter comes before the Court on a motion for judgment on the pleadings by Defendants City of Atlantic City ("Atlantic City"), Atlantic City Policy Department ("Police Department"), John J. Mooney, and Thomas Moynihan. [Docket Item 63.] Specifically, Defendants request judgment on the pleadings on Count VI of Plaintiff's Amended Complaint and the resultant dismissal with prejudice of Defendants John J. Mooney and Atlantic City Police Department pursuant to Federal Rule of Civil Procedure 12(c).*fn1 For the reasons explained below, the Court shall grant the motion for judgment on the pleadings. The principal issue presented is whether Count VI of the First Amended Complaint in this civil rights act case alleging excessive use of force in arrest, among other claims, states a cognizable claim for municipal liability under 42 U.S.C. § 1983. The Court will dismiss the Atlantic City Police Department with prejudice by the consent of both parties, but will dismiss Count VI and Defendant Mooney without prejudice to Plaintiff's opportunity to request leave to file a curative amendment to provide a plausible basis for her claims of municipal liability within fourteen (14) days of this opinion and order.
In May 2010, Plaintiff brought this action arising from an incident that occurred at the "mur.mur" nightclub in the Borgata Casino (owned and operated by non-moving defendant Marina Development District) on February 7, 2009. (Am. Compl. ¶¶ 16-18.) At this stage the Court is obligated to accept all of Plaintiff's allegations as true, and so will draw the facts of this dispute solely from Plaintiff's First Amended Complaint.
Plaintiff and her friends entered the mur.mur nightclub in the Course of a weekend trip to Atlantic City to celebrate a birthday. (Id. ¶¶ 16-18.) At some point during the evening, members of Plaintiff's party were asked by club staff to extinguish their cigarettes, which they immediately did. (Id. ¶ 22.) In the early morning hours of February 8, 2009, Borgata bouncers and Officer Thomas Moynihan entered the club. (Id. ¶ 23). The bouncers asked Plaintiff's party to leave the club. (Id. ¶ 24.) Without allowing Plaintiff time to leave the club, Officer Moynihan and an unidentified bouncer "roughly grabbed her by the arms and began carrying her toward an exit." (Id. ¶ 26.) Officer Moynihan then allegedly punched Plaintiff in the face and dragged her through an exit, where he and another officer allegedly knelt on Plaintiff with their full body weight, handcuffed her, lifted her from the floor by her arms, and repeatedly slammed her face into a wall while she was unable to brace herself. (Id. ¶¶ 27-31.) Plaintiff was then taken to the Atlantic City Police Station and detained in a cell for several hours. (Id. ¶ 32). Officer Moynihan signed complaints charging Plaintiff with creating a disturbance, aggravated assault, and resisting arrest, though all charges were subsequently dismissed. (Id. ¶ 34.)
Plaintiff brings suit against Officer Moynihan for use of excessive force, false imprisonment, and false arrest in violation of her constitutional rights. (Id. Counts 1-3.) Plaintiff further brings tort claims against Officer Moynihan for assault and battery, malicious prosecution, as well as a claim for civil conspiracy with the Borgata Casino. (Id. Counts 7, 8, 13). Plaintiff brings tort claims against Atlantic City and the Police Department for negligent training and supervision and negligent hiring practices. (Id. Counts 4, 5.) Plaintiff also files suit pursuant to 42 U.S.C. § 1983 against Atlantic City, the Police Department, and Police Chief Mooney for the civil rights violations inflicted upon her by Officer Moynihan, incorporating by reference the claims of negligent training and supervision and negligent hiring practices contained in Counts IV and V. *fn2 (Id. ¶ 45.)
Specifically, in Count VI, which is captioned "Municipal Liability," Plaintiff alleges that Atlantic City's policies and procedures in place at the time of her arrest were unlawful and improper. (Id. ¶ 66.) Plaintiff also alleges negligent training and supervision (Count IV) and negligent hiring (Count V), which she believes are incorporated into Count VI by reference. (Pl.'s Br. in Opp'n to Defs.' Mot. for J. on the Pleadings 10.) Finally, Plaintiff alleges in Count XV that Chief Mooney is vicariously liable for permitting Officer Moynihan's conduct to continue after he had knowledge of "the improper manner in which Defendant . . . was discharging his duties." (Am. Compl. ¶111.)
On January 16, 2012 Defendants Atlantic City, Atlantic City Police Department, Police Chief Mooney, and Officer Moynihan ("Moving Defendants") filed the instant Motion for Judgment on the Pleadings. See Fed. R. Civ. P. 12(c). Specifically, Moving Defendants assert that Count VI of Plaintiff's Amended Complaint is insufficiently plead and should be dismissed, and that as a result all claims against Defendant Mooney should also be dismissed. (Defs.' Mot. for J. on the Pleadings 4.) Moving Defendants further assert that the Police Department is not properly a party to this matter and should be dismissed as well. (Id. 21.)
Under Rule 12(c) of the Federal Rules of Civil Procedure, "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." While a Rule 12(b) motion to dismiss a complaint must be filed before responsive pleadings, a Rule 12(c) motion for judgment on the pleadings may be filed after the pleadings are closed. Turbe v. Gov't of the Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991).
However, the differences between Rules 12(b)(6) and 12(c) are purely procedural, as the pleading standards of Rule 12(b)(6) are applied for both. Id. Thus, the Court must "accept all factual allegations as true" and construe the complaint "in the light most favorable to the plaintiff." Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002)).
Prior to 2007, the federal courts utilized a standard of notice pleadings and would dismiss complaints for failure to state a claim only when "it appear[ed] beyond doubt that the plaintiff [could] prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45 (1957). However, in 2007 the Supreme Court abandoned that standard in its decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In Twombly, the Court explained that:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than label and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.
Twombly, 550 U.S. 555 (internal citations omitted). A complaint need not provide detailed factual allegations, but it must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id. at 570. The Supreme Court elaborated on and clarified the Twombly standard in a subsequent decision, Ashcroft v. Iqbal, 556 U.S. 662 (2009). In Iqbal, the Supreme Court stated:
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." [Twombly] at 570, 127 S.Ct. 1955. 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., at 556, S.Ct. 1955. The plausibility standard is not akin to a probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendants liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id., at 557, 127 S.Ct. 1955 (brackets omitted). Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555, 127 S.Ct. 1955. Iqbal, 556 U.S. 662.
As such, when a Court is deciding a motion under Rule 12(c), it must look closely at the complaint to determine whether it states a facially plausible claim to relief, composed of factual content and not merely conclusory allegations reflecting the cause of action.
B.The Monell Standard under 42 U.S.C. § 1983
Plaintiff's municipal liability claims against Atlantic City, the Police Department, and Police Chief Mooney all arise under 42 U.S.C. § 1983, which reads:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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 for redress . . .
42 U.S.C.A § 1983 (1996). Municipal liability under § 1983 may not be proven under a respondeat superior theory of liability but must be founded on evidence that the government itself supported a violation of constitutional rights. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). Municipal liability exists only where execution of the municipality's policy or custom, whether made by lawmakers or decisionmakers whose edicts may fairly represent official policy, inflict the injury. Id., at 694.
Not all state action rises to the level of a custom or policy. A policy is made "when a decisionmaker possess[ing] final authority to establish municipal policy with respect to the action issues a final proclamation, policy or edict." Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion)). A custom is an act "that has not been formally approved by an appropriate decisionmaker," but that is "so widespread as to have the force of law." Bd. of County Comm'rs of Bryan County, Okla. V. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).
Natale v. Camden Cnty. Correctional Facility, 318 F.3d 575, 584 (3d Cir. 2003). Once a policy or custom has been shown to exist, it must then be shown that the allegedly unconstitutional ...