United States District Court, D. New Jersey
JOSEPH H. RODRIGUEZ, United States District Judge.
matters come before the Court on motions to Dismiss the Third
Amended Complaint, pursuant to Fed.R.Civ.P. 12 (b)(6), filed
by Defendants Gloucester County Prosecutor Sean Dalton and
Gloucester County. The Court has considered the written
submissions of the parties, without oral argument. For the
reasons that follow, the Defendants' motions are granted.
following facts are alleged in the Third Amended Complaint,
which sets forth similar claims as the previous two
complaints. The underlying facts of this case are tragic.
Matthew McKloskey, aged 10, and two friends were crossing
Delsea Drive (also known as New Jersey State Route 47) in
Franklin Township, New Jersey, around 7:00 p.m. (Amend.
Compl. ¶¶ 12, 16) It was dark outside and it was
raining. (Id. ¶¶ 12, 20) Defendant Officer
Locilento, “who had fairly recently been hired by
Franklin Township, ” “was responding to a
nonemergency call that was less than three miles away.”
(Amend. Compl. ¶¶ 18, 20) Locilento was driving
“around 80 [miles per hour] without lights and
sirens” when he struck Matthew with his car.
(Id. ¶ 21) Very shortly thereafter, Matthew
died as a result of the injuries he sustained. (Id.
¶¶ 28, 103).
September 7, 2016, the Court issued an Opinion and Order
granting Plaintiff leave to file an Amended Complaint in
response to the Court's ruling that, as plead, the
Complaint failed to plead sufficient facts to plausibly
support a finding of liability against the moving Defendants.
Plaintiff subsequently filed a Second and then a Third
Amended Complaint. Moving Defendants seek dismissal of the
Third Amended Complaint on several grounds, with all parties
in agreement that the claims against Defendant Gloucester
County are derivative of the actions of Defendant
Dalton. As a result, the arguments advanced by
Defendant Dalton in support of dismissal also form the basis
for Defendant Gloucester County's motion.
moves for dismissal on grounds of Eleventh Amendment
immunity, failure to state a claim under 42 U.S.C.
§1983, and, alternatively, qualified immunity.
Standard of Review
move for dismissal on grounds of Eleventh Amendment immunity,
failure to state a claim, and qualified immunity. A motion to
dismiss based on Eleventh Amendment, or sovereign immunity,
is appropriate under both Rule 12(b)(1) and Rule 12(b)(6).
Carter v. City of Philadelphia, 181 F.3d 339, 343
(3d Cir. 1999) (considering immunity under 12(b)(6));
Blanciak v. Allegheny Ludlum Corp., 77 F.3d
690, 693 n. 2 (3d Cir .1996) (considering immunity under
12(b)(1)). Defendants move pursuant to Fed.R.Civ.P. 12 (b)
Rule of Civil Procedure 12(b)(6) allows a party to move for
dismissal of a claim based on “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A complaint should be dismissed pursuant to Rule
12(b)(6) if the alleged facts, taken as true, fail to state a
claim. Fed.R.Civ.P. 12(b)(6). When deciding a motion to
dismiss pursuant to Rule 12(b)(6), ordinarily only the
allegations in the complaint, matters of public record,
orders, and exhibits attached to the complaint, are taken
into consideration. See Chester County Intermediate Unit
v. Pa. Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). It
is not necessary for the plaintiff to plead evidence.
Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d
Cir. 1977). The question before the Court is not whether the
plaintiff will ultimately prevail. Watson v. Abington
Twp., 478 F.3d 144, 150 (2007). Instead, the Court
simply asks whether the plaintiff has articulated
“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).
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. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556).
“Where there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
motion to dismiss should be granted unless the
plaintiff's factual allegations are “enough to
raise a right to relief above the speculative level on the
assumption that all of the complaint's allegations are
true (even if doubtful in fact).” Twombly, 550
U.S. at 556 (internal citations omitted). “[W]here 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 ‘shown'-‘that the
pleader is entitled to relief.'” Iqbal,
556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
motions to dismiss will be granted because Dalton is entitled
to Eleventh Amendment immunity and because the Third Amended
Complaint fails to state a claim under 42 U.S.C. § 1983
against Dalton. The Eleventh Amendment provides: “The
Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by citizens of another State
or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend XI. The Eleventh Amendment incorporates a
general principle of sovereign immunity that bars citizens
from bringing suits for damages against any State in federal
court. Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100-01 (1984).
Sovereign immunity extends to State agencies and State
officers, “as long as the state is the real party in
interest.” Fitchik v. N.J. Transit Rail
Operations, 873 F.2d 655, 659 (3d Cir. 1989). It does
not extend to counties and municipalities. Mt. Healthy
City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977);
Bolden v. Southeastern Pa. Transp. Auth., 953 F.2d
807, 813-14 (3d Cir. 1991) (“[A]lthough political
subdivisions of a state, such as counties and municipalities,
fall within the term ‘State' as used in the
Fourteenth Amendment, political subdivisions are not
‘State[s]' under the Eleventh Amendment.”).
entities may be entitled to immunity, however, if deemed an
arm of the state. Febres v. Camden Bd. of Educ., 445
F.3d 227, 229 (3d Cir. 2006) (citing Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle,429 U.S. 274, 280, 97
S.Ct. 568, 50 L.Ed.2d 471 (1977)). The test to determine
whether an entity is an arm of the state and therefore
entitled to Eleventh Amendment immunity is three-fold: (1)
whether payment of a judgment resulting from the suit would
come from the state treasury, (2) the status of the entity
under state law, and (3) the entity's degree of autonomy.
See Chisolm v. McManimon, 275 F.3d 315, 323 (3d Cir.
2001) (citing Fitchik, 873 F.2d at 229). The Third
Circuit has repeatedly held that the most important factor is
whether the payment of a judgment would come from the state
treasury. Chisolm, supra, at 323 (citing Carter