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Cooney v. Alberto

United States District Court, Third Circuit

November 12, 2013



DENNIS M. CAVANAUGH, District Judge.

This matter comes before the Court upon the Motion of Victoria Alberto ("Defendant") to Dismiss the Complaint of Plaintiff Patrick F. Cooney, III ("Plaintiff") pursuant to FED. R. CIV. P. 12(b)(6). Pursuant to FED. R. CIV. P. 78, no oral argument was heard. Based on the following and for the reasons expressed herein, Defendant's Motion to Dismiss is granted.


Plaintiff alleges that on June 1, 2012, he was driving his vehicle on Forest Avenue in Paramus, New Jersey, when he passed by Vincent Alberto ("Mr. Alberto"), who was jogging at the time. Plaintiff claims that Mr. Alberto began to shout obscenities at him and that Plaintiff then turned left onto Ross Road and parked his vehicle. Plaintiff states that when he exited his vehicle, Mr. Alberto approached him, continued to shout obscenities, and began to strike him. Plaintiff claims that Mr. Alberto then pinned him to the ground, repeated to strike him, and twisted his arm behind his back in a violent manner. Plaintiff states that Mr. Alberto took these actions despite the fact that Plaintiff told Mr. Alberto that he would not harm him and the fact that Defendant, Mr. Alberto's wife, repeatedly told him to stop.

Plaintiff claims that upon observing the attack, Defendant, who is a police officer but was oft-duty at the time, dialed 9-1-1. Plaintiff states that Defendant advised the operator that the altercation was only a "dispute" and failed to advise the operator that her husband was striking Plaintiff. Plaintiff alleges that Defendant "intentionally minimalized the attack by her husband" because she knew that the call was being recorded. Plaintiff has attached a transcript of the 9-1-1 call to his Opposition to Defendant's Motion to Dismiss as evidence that Defendant identified herself as a police officer and failed to respond to the operator's question of whether the dispute was violent. Plaintiff has also attached a transcript of a call made to the police by a neighbor who viewed the altercation.

Plaintiff filed a Complaint against Defendant and Mr. Alberto on March 25, 2013 (ECF No. 1). The only claim against Defendant is contained within count four, where Plaintiff alleges that Defendant violated his rights under 42 U.S.C. § 1983. Defendant filed the instant Motion to Dismiss on May 6, 2013 (ECF No. 5). Plaintiff filed an Opposition on June 3, 2013 (ECF No. 9). Defendant filed a Reply on June 10, 2013 (ECF No. 10).


In deciding a motion under FED. R. CIV. P. 12(b)(6), the District Court is "required to accept as true all factual allegations in the complaint and draw all inferences in the facts alleged in the light most favorable to the [plaintiff]." Phillips v. Cnty. of Allegheny , 515 F.3d 224, 228 (3d Cir. 2008). "[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). However, the plaintiff's "obligation to provide the grounds' of his entitle[ment] to relief requires more than labels and conclusions and a formulaic recitation of the elements of a cause of action will not do." Id . On a motion to dismiss, courts are "not hound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain , 478 U.S. 265, 286 (1986). Plaintiff's complaint is subject to the heightened pleading standard set forth in Ashcroft v. Iqbal:

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." 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... Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not "show[n] - "that the pleader is entitled to relief."

556 U.S. 662, 678-679 (2009) (quoting Twombly , 550 U.S. at 557, 750).


Plaintiff alleges that Defendant violated his rights under 42 U.S.C. § 1983 based on the state-created danger theory. Section 1983 "does not create substantive rights, but provides a remedy for the violation of rights created by federal law." Groman v. Twp. of Manalapan , 47 F.3d 628, 633 (3d Cir. 1995). In order to establish a claim under § 1983, a plaintiff must show that "(1) a person deprived him of a federal right; and (2) the person who deprived him of that right acted under color of state or territorial law." Id . (citing Gomez v. Toledo , 466 U.S. 635, 640 (1980)). The Third Circuit has stated that "if a person's actions were not committed in the performance of any actual or pretended duty, ' the actions were not committed under color of law." Mark v. Borough of Hatboro , 51 F.3d 1137, 1151 (3d Cir. 1995) (quoting Bonsignore v. City of New York , 683 F.2d 635, 639 (2d Cir. 1982)).

The state-created danger theory was adopted by the Third Circuit in 1996 to allow liability to attach where the state acts to create or enhance a danger that deprives a person of his or her Fourteenth Amendment right to substantive due process. Sanford v. Stiles , 456 F.3d 298, 304 (3d Cir. 2006). In a state-created danger case, a plaintiff must prove the following four elements: (1) the harm caused was foreseeable and fairly direct; the state actor's degree of culpability "shocks the conscience;" (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant's acts; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the plaintiff or that rendered the plaintiff more vulnerable to danger than had the state actor not acted at all. Id. at 304-305.

This Court finds that Plaintiff's Complaint fails to demonstrate that Defendant acted under color of state law and fails to adequately allege the existence of ...

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