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Greene v. Perez

United States District Court, D. New Jersey

April 17, 2016

RONALD B. GREENE, Plaintiff,
MICHAEL PEREZ, et al., Defendants.


          WILLIAM J. MARTINI, U.S.D.J.

         Pro 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.

         I. BACKGROUND

         The 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.

         Plaintiff 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.

         Plaintiff 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.

         On 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.

         Defendants 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. 48.


         Federal 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.

         Federal 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).

         Although 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. ...

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