The opinion of the court was delivered by: Hon. Jerome B. Simandle
This matter is before the Court on Plaintiff Dolores Ingram's motion seeking leave to amend her complaint pursuant Fed. R. Civ. P. 15. [Docket Item 23.] Plaintiff's proposed Amended Complaint newly alleges that Defendants Township of Deptford and Deptford Township Police engaged in a pattern or practice of allowing its police officers to act recklessly and to use excess force that result in injuries to individual citizens. [Am. Compl. ¶¶ 19, 26.] The Amended Complaint also alleges that Plaintiff "substantially complied" with the notice requirements of the New Jersey Tort Claims Act ("NJTCA"). [Am. Compl. ¶¶ 32, 38.] Defendants Township of Deptford and Defendant Sgt. Michael Taylor oppose the motion. For the reasons discussed herein, the Court will deny Plaintiff's motion to amend.
The instant action arises out of Defendant Sgt. Michael Taylor's alleged use of excessive force on the Plaintiff in removing her from a municipal court proceeding pursuant to the order a municipal court judge, allegedly causing physical and emotional injuries to the Plaintiff. The facts of this case were described fully in the Court's previous opinion, Ingram v. Twp. of Deptford, No. 11-2710, 2012 WL 868934, at *1-*2 (D.N.J. March 13, 2012), and are incorporated herein.
Plaintiff asserts that on the day of the incident, May 13, 2009, she filled out a Deptford Township Municipal Court form with the title, "Probable cause statement for issuance of motor vehicle or criminal complaints" (hereinafter "probable cause statement"), in order to register her complaint against Sgt. Taylor.*fn1 [Pl. Br. Exh. B at Exh. A, Exh. C at 48:15-49:2.] The form includes Plaintiff's name, address and signature, and lists the "Defendant" as "Sargent Michael Taylor" and the "Statute Number or Offense(s) to be issued" as "Excessive force, degrating me to the point that I was crying histerically & humilating me in front of the courtroom." [Pl. Br. Exh. B at Exh. A.] On the last of four blank lines provided to describe the "Reason for issuing this complaint (Briefly describe the incident)" are numbers apparently referencing parts of the New Jersey Code of Criminal Justice: "2C, 33-4 2C, 12-1-A-1."*fn2 On the back of the form, Plaintiff explains the incident in more detail: "Officer Sgt. Taylor grabbed me by the arm, placing his hand on the center of my back, forced me, lifting me off the ground, while in the courtroom, causing pain to my previously injured neck and back . . . ." Plaintiff alleges that Sgt. Taylor "threatened to put me in jail" and, when Plaintiff asked "Do you realize I can charge you with excessive force?", Sgt. Taylor responded, "I don't care." Plaintiff asserts: "I was afraid I was going to have a stroke." [Pl. Br. Exh. B at Exh. A.]
Nearly two years later, Plaintiff filed the instant action against Defendants Township of Deptford, Deptford Township Police, Sgt. Michael Taylor and John Does 1-50. [Docket Item 1.] Plaintiff claimed four causes of action: (1) violations of her Fourth and Fourteenth Amendment rights under the U.S. Constitution, caused by Defendants' use of unnecessary and grossly excessive force, (2) violations of the New Jersey State Constitution, stemming from the same activity, (3) tort claims for negligence, and (4) assault and battery.
Upon Defendants' motion, the Court dismissed without prejudice all claims against Defendants Township of Deptford and Deptford Township Police brought under 42 U.S.C. § 1983, because Plaintiff failed to allege the existence of a policy or custom that deprived Plaintiff of her constitutional right to be free from excessive force, and because Plaintiff failed to allege that the Township or the police department acted with deliberate indifference to any purported policy or custom. Ingram, 2012 WL 868934, at *13. The Court also dismissed without prejudice the negligence and assault and battery claims, because the issue of whether Plaintiff complied with the notice provisions of the NJTCA was not fully briefed, and the Court dismissed all claims against John Doe defendants with prejudice. Id. at *12-*13. The only surviving claims were those against Sgt. Taylor. Id. at *14.
Plaintiff filed a motion for leave to amend her complaint. [Docket Item 23.] After filing and after conducting discovery, Plaintiff's counsel, in a letter dated August 21, 2012, advised the Court that Plaintiff was discontinuing voluntarily all claims under § 1983 ("Monell claims") as well as claims against John Doe defendants. [Docket Item 27.] Thus, the only issue presently before the Court is whether Plaintiff should be allowed to amend her claims against the Township, the Township Police, and Sgt. Taylor under the New Jersey State Constitution or state tort law.
When disregarding the claims brought under § 1983 and those against John Doe defendants, there are only two significant differences between the proposed Amended Complaint and the Complaint as originally filed.
First, in the "Second Count" of the Amended Complaint, Plaintiff pleads that the Township of Deptford and the Township Police "engaged in a pattern or practice of allowing its police officers, including Defendant Sgt. Michael Taylor to engage in reckless behavior and utilizing excess force causing injuries to individual citizens and implemented adopted [sic] these unlawful policies and customs." [Am. Compl. ¶ 26.] Plaintiff cites "Case of Joseph Rao (Deptford Police Brutality) and Case of Sarah Weingartner (Personal Injuries caused reckless by Sgt Michael Taylor)" without further explanation. Id.
Second, Plaintiff adds substantially similar paragraphs to both "Third Count" and "Fourth Count," expressly pleading that plaintiff "substantially complied with the New Jersey Tort Claims Act" by filing "a complaint for excessive force with the Deptford Township Police against Michael Taylor on May 13, 2009 the date of the incident (incorrectly noted as May 14, 2009 and incorrectly dated August 24, 2009)." [Am. Compl. ¶¶ 32, 38.] In ¶ 32, Plaintiff adds that "[a] true and correct copy of this Notice is attached hereto as Exhibit A." In ¶ 38, under "Fourth Count," Plaintiff adds an additional sentence: "Plaintiff also filed several OPRA [Open Public Records Act] requests within 90 days on the Deptford Township Police which went largely ignored and without any further follow up or inquiry from the Deptford Township Police." There is no further mention of the OPRA requests, nor a description of their contents, in Plaintiff's submissions to the Court.
Attached to the Amended Complaint, as Exhibit A, is a copy of the Deptford Township Municipal Court probable cause statement.
Under Fed. R. Civ. P. 15(a)(2), a party may amend its pleading with the court's leave, and "[t]he court should freely give leave when justice so requires." However, the Third Circuit has recognized that a district court justifiably may deny leave to amend "on grounds such as undue delay, bad faith, dilatory motive, and prejudice, as well as on the ground that an amendment would be futile." Smith v. Nat'l Collegiate Athletic Ass'n, 139 F.3d 180, 190 (3d Cir. 1998), rev'd on other grounds, 525 U.S. 459 (1999). An amendment is futile if the amended complaint would not survive a motion to dismiss for failure to state a claim upon which relief could be granted. Id.; see also Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000).
The Court will consider both of Plaintiff's claims in turn: her amended tort New Jersey claims and her amended New Jersey State Constitution claims.
A. Tort Claims under the New Jersey Tort Claims Act (NJTCA)
The key question for the Court is whether the probable cause statement provided adequate notice to the Township and Township Police of Plaintiff's tort claims, under the NJTCA. If the filing is insufficient for the purposes of the NJTCA, then the motion to amend Plaintiff's tort claims must be denied, because the amended tort claims would ...