United States District Court, D. New Jersey
RONALD B. GREENE, Plaintiff,
MICHAEL PEREZ, et al., Defendants.
WILLIAM J. MARTINI, U.S.D.J.
se Plaintiff Ronald Greene brings this action against
four detectives of the Bergen County Prosecutor's Office,
namely Brian Kelly, Michael Perez, and unidentified
individuals John Doe #1 and John Doe #2 (collectively
“Defendants”). Plaintiff alleges that Defendants
used excessive force against him during his arrest in
violation of 42 U.S.C. § 1983. This matter comes before
the Court on Defendants' motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). There
was no oral argument. Fed.R.Civ.P. 78(b). For the reasons set
forth below, Defendants' motion to dismiss is GRANTED, in
part, and DENIED, in part.
Court assumes the parties' familiarity with the facts and
procedural history of this case, but will briefly summarize
here. Plaintiff is a convicted and sentenced prisoner,
currently serving his sentence in East Jersey State Prison,
Rahway, New Jersey. Op. 1, ECF No. 39. On October 18, 2011,
Plaintiff alleges that Defendants used excessive force while
arresting him during a police sting operation. See
Am. Compl. 5-6, ECF No. 41.
originally complained of several other § 1983 claims in
addition to his excessive force claim, which this Court
dismissed with prejudice because those claims were not
cognizable under Heck v. Humphrey, 512 U.S. 477
(1994). See Op. 3-4, ECF No. 30. The Court found
that Heck did not bar Plaintiff's excessive
force claim because it did not necessarily undermine his
conviction. Id. at 4. Nevertheless, the Court
dismissed the excessive force claim without prejudice because
Plaintiff's allegations failed to describe specific facts
as to how the use of force was excessive. Id.
later filed an amended complaint (the
“Complaint”) in which he alleged the following,
in pertinent part:
After being handcuffed and while being held down on the
ground, Det. Kelly used his knee to spear plaintiff in the
back, then repeatedly punched plaintiff in his back, ribs and
scrotum, doing this while Det. John Doe #1 kept his foot on
plaintiff's neck, increasing the pressure and grinding
his boot into plaintiff's neck. This assaultive force
used against plaintiff while he was handcuffed and pinned to
the ground lasted for 2-3 minutes. Det. Kelly and Det. John
Doe #1, each having both a realistic and reasonable
opportunity to intervene and prevent each other from using
the unnecessary and excessive force to seize and arrest
plaintiff. At all times, John Doe #2 was in close proximity,
and having a realistic and reasonable opportunity to do
failed to intervene in the excessive force, and acquiesced to
the assaultive use of force . . . .
Am. Compl. at 6. Plaintiff further alleged that he was
arrested “as he exited the parked vehicle that he was
in, while he was involved in committing no crime, and was
talking on his cell phone.” Id. at 5-6.
December 5, 2013, Plaintiff was convicted by a jury on
several charges, including aggravated assault with a firearm.
On April 11, 2014, Plaintiff was sentenced to 35 years of
imprisonment, which he is currently serving. See ECF
No. 36 at 1; Defs.' Br. in Opp'n to Pl.'s Mot.
for Default, Ex. B, ECF No. 20-1. Under the aggravated
assault charge, the indictment describes that Plaintiff
“did knowingly under circumstances manifesting extreme
indifference to the value of human life, point a firearm at,
or in the direction of, Detective Michael Perez . . .
.” See id., Ex. A. Plaintiff does not mention
that he possessed a firearm during the course of his arrest
in the Complaint.
now move to dismiss the Complaint, arguing: (1) that
Plaintiff's claims regarding a lack of probable cause to
effect an arrest are barred by Heck, see
Br. in Supp. of Defs.' Mot to Dismiss (“Defs.'
Mot.”) 7-9, ECF No. 43; (2) Plaintiff's claims
against Defendants Perez and Kelly are conclusory and not
entitled to the assumption of truth, see id. at
9-10, 13-15; and (3) that Defendant Kelly is entitled to
qualified immunity in light of the factual
circumstances-i.e., Plaintiff's possession of a
firearm during his arrest, see id. at 15-19.
Plaintiff opposes, arguing that he is entitled to discovery
and emphasizing that he alleges the use of excessive force
after he was secured and handcuffed. See Pl.'s
Opp'n 2-3, ECF No. 47. Defendants filed a reply. ECF No.
Rule of Civil Procedure 12(b)(1) provides for the dismissal
of a complaint for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). There are two types of challenges to
subject-matter jurisdiction: (1) facial attacks, which
challenge the allegations of the complaint on their face; and
(2) factual attacks, which challenge the existence of
subject-matter jurisdiction, quite apart from any pleadings.
Mortensen v. First Fed. Sav. & Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977). In reviewing a factual
attack, such as the ones presented here, the court may
consider evidence outside the pleadings, and no presumptive
truthfulness attaches to the plaintiff's allegations.
Gould Electronics Inc. v. United States, 220 F.3d
169, 176 (3d Cir. 2000). The plaintiff bears the burden of
proving that jurisdiction exists. Id. at 178.
Rule of Civil Procedure 12(b)(6) provides for dismissal of a
complaint, in whole or in part, if the plaintiff fails to
state a claim upon which relief can be granted. The moving
party bears the burden of showing that no claim has been
stated. Hedges v. United States, 404 F.3d 744, 750
(3d Cir. 2005). In deciding a motion to dismiss under Rule
12(b)(6), a court must take all allegations in the complaint
as true and view them in the light most favorable to the
plaintiff. See Warth v. Seldin, 422 U.S. 490, 501
(1975); Trump Hotels & Casino Resorts, Inc. v. Mirage
Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998).
a complaint need not contain detailed factual allegations,
“a plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). Thus, the factual allegations must be sufficient
to raise a plaintiff's right to relief above a
speculative level, such that it is “plausible on its
face.” See Id. at 570; see also Umland v.
PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008).
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.” Ashcroft v. ...