JOEL A. PISANO, District Judge.
This is an action brought by Plaintiff Richard Marshall Jr. ("Plaintiff") against Defendants Keansburg Borough, Detective Bryan King, Sergeant Wayne Davis, Detective Jillian Kohler, Chief of Police Raymond O'Hare, Deputy Chief of Police Michael Pigott, John Does 1-5, and John Does 6-10 (together, the "Defendants"). Plaintiff alleges various 42 U.S.C. § 1983 violations and a violation of the New Jersey Civil Rights Act stemming from an altercation between Defendants King, Davis, and Koehler and Plaintiff wherein the Defendant Officers used allegedly excessive force against Plaintiff. He also alleges common law claims for assault and battery, intentional infliction of emotional distress, and negligence. Presently before the Court is Defendants' Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) [ECF No. 5]. The Court decides these matters without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the Motion to Dismiss will be denied in part and granted in part.
On December 18, 2010, Plaintiff was standing on the sidewalk on Beachway Avenue in Keansburg, New Jersey, when he was approached by three uniformed Keansburg Borough Police Officers, Defendants King, Davis, and Kohler (together, the "Defendant Officers"). As the Defendant Officers approached, Plaintiff's cellular phone started to ring. Defendant King told Plaintiff not to "fucking answer that phone." Plaintiff proceeded to answer the phone, at which point Plaintiff alleges that Defendants King and Davis grabbed Plaintiff from both sides of his arm and threw him face first against their unmarked police vehicle. As Defendant King grabbed Plaintiff, he screamed, "I fucking told you not to answer your phone." Defendants King and David allegedly proceeded to kick out Plaintiff's legs, tackle him to the ground, and knee Plaintiff in his ribs and back. Defendant King then allegedly used his forearm to choke Plaintiff, at which point Plaintiff stated, "I can't breathe; why are you doing this?" Defendant Kohler, who had observed the entire incident, then sprayed Plaintiff in the face with OC spray, while Plaintiff was handcuffed and on the ground.
As a result of this incident, Plaintiff was charged with resisting arrest in violation of N.J.S.A. 2C:29-2(a)(1) as to all three police officers. On February 2, 2012, Plaintiff appeared before the Honorable Michael Pugliese, J.M.C., relative to the charges brought against him. As a result of this proceeding, Plaintiff pled guilty to a violation of Keansburg Municipal Ordinance 3-17.4 for "disorderly conduct" and paid fines. Accordingly, the charges for resisting arrest were dismissed.
On December 13, 2012, Plaintiff commenced this action. He alleges: (1) Defendants King, Davis, and Kohler used excessive force against him in violation of § 1983; (2) Defendants King, David, and Kohler failed to intervene in the unjustified assault and arrest of Plaintiff in violation of § 1983; (3) Defendant Davis is liable as a supervisor under § 1983; (4) Defendants Borough of Keansburg Police Department, O'Hare, and Pigott are liable to him under § 1983 because an official policy, practice, or custom caused Plaintiff's injuries; (5) prospective injunctive relief against the Defendants is warranted; (6) Defendants King, Davis, and Kohler used excessive force against Plaintiff in violation of N.J.S.A. 10:6-1 ("The New Jersey Civil Rights Act" or "NJCRA"); (7) Defendants King, Davis, and Kohler committed an assault and battery on Plaintiff; (8) Defendants King, Davis, and Kohler acted in such a way that Plaintiff sustained severe emotional distress; and (9) Defendants King, Davis, and Kohler acted negligently towards the Plaintiff.
The Defendants move to dismiss Plaintiff's Complaint in its entirety. Defendants argue that Count One should be dismissed because Plaintiff's § 1983 claim for excessive force is barred by Heck v. Humphrey, 512 U.S. 477 (1994). Alternatively, they argue that Count One should be dismissed Defendants King, Davis, and Kohler are entitled to qualified immunity and are therefore barred from liability. Finally, they argue that Plaintiff is estopped from asserting a § 1983 excessive force claim in Count One because of the guilty plea he entered in the underlying criminal lawsuit. Defendants contend that because Count One is deficient and must be dismissed, Plaintiff's remaining § 1983 claims (Counts Two through Five) must fail as well. Defendants allege that Count Six of the Complaint, the alleged violation of the New Jersey Civil Rights Act, should be dismissed for the same reasons as Plaintiff's § 1983 claims. Defendants contend that the additional state law claims (Counts Seven through Nine) should be dismissed because, like Counts Two through Five, they are predicated on the use of excessive force against the Plaintiff.
Defendants further allege that any claims against Defendants O'Hare and Pigott must fail because Plaintiff's claims against them are based upon a theory of respondeat superior. Defendants also argue any claims against Defendant O'Hare should be dismissed because he was not the Chief of Police on the date of the incident. Defendants further contend that any claims against Defendants O'Hare and Pigott are barred because they were not identified on a Notice of Tort Claim by the Plaintiff. Finally, Defendants allege that there can be no claim for punitive damages against Keansburg Borough under either § 1983 or under the New Jersey Civil Rights Act.
I. Standard of Review
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." When reviewing a motion to dismiss, courts must first separate the factual and legal elements of the claims, and accept all of the well-pleaded facts as true. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). All reasonable inferences must be made in the Plaintiff's favor. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). As discussed above, when reviewing the sufficiency of a complaint, a district court may also rely on exhibits attached to a complaint, matters of public record, and undisputedly authentic documents that form the basis of a plaintiff's claims. See Sentinel Trust Co., 316 F.3d at 216.
In order to survive a motion to dismiss, the plaintiff must provide "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This standard requires the plaintiff to show "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A "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." Twombly, 550 U.S. at 555 (internal quotations and citations omitted). When assessing the sufficiency of a civil complaint, a court must distinguish factual contentions and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678. Any legal conclusions are "not entitled to the assumption of truth" by a reviewing court. Id. at 679. Rather, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. See also Fowler, 578 F.3d at 210 (explaining that "a complaint must do more than allege a plaintiff's entitlement to relief").
Therefore, when reviewing the sufficiency of a complaint, a district court use a three-part analysis. First, the court must note the elements a plaintiff must plead to state a claim. Second, the court "should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth." Lastly, the court should assume the veracity of any wellpleaded factual allegations and "then determine whether they plausibly give rise to an entitlement for relief." Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (internal quotations and citations omitted).
II. Legal Discussion
a. Plaintiff's § 1983 Excessive Force Claim (Count One)
Section 1983 provides, in relevant part:
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 to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]
42 U.S.C. § 1983. In order to establish a § 1983 claim, "a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 49 (1988) (citations omitted). "Action under color of state law requires that one liable under § 1983 have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Harvey v. Plains Twp. Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011) (internal quotation omitted).
A claim that a law enforcement officer has used excessive force during the course of an arrest or other "seizure" of a citizen is considered to be an alleged violation of the Fourth Amendment. "To state a claim for excessive force as an unreasonable seizure under the Fourth Amendment, a plaintiff must show that a seizure' occurred and that it was unreasonable." Abraham v. Raso,183 F.3d 279, 288 (3d Cir. 1999). Determining whether a seizure was unreasonable in an excessive force case is an objective inquiry: "the question is whether the officers' actions are objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham v. Connor,490 U.S. 386, 397 (1989). "[T]he reasonableness' of a particular use of force must be judged ...