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Smart v. Urbina

United States District Court, D. New Jersey

October 19, 2017

SALAHUDDIN F. SMART, Plaintiff,
v.
ALEXANDRO URBINA, et al., Defendants.

          OPINION

          ROBERT B. KUGLER UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiff Salahuddin F. Smart is proceeding pro se with an amended civil rights complaint. Currently pending before this Court is Defendant Borough of Magnolia's (“Borough”) motion to dismiss the amended complaint pursuant to Rule 12(b)(5)-(6).[1] For the following reasons, the motion to dismiss is granted as to Robert Doyle. The motion is denied as to the John Doe Borough police officer and the Borough.

         II. BACKGROUND

         The Court recites the facts in the light most favorable to plaintiff. On September 29, 2011, Alexandro Urbina, a case worker at New Jersey's Division of Child Protection and Permanency (“DCP&P”), formerly the Division of Youth and Family Services, called the Borough of Magnolia Police Department and reported Mr. Smart had committed an act of child abuse or endangerment. As a result, Borough police officers entered the home in which Mr. Smart was staying without a warrant or Mr. Smart's consent and proceeded to search the house. “After the warrantless home entry on September 29, 2011 the division worker Mr. Urbina reported that plaintiff exposed his genitals to a minor child.” No criminal charges were brought against Mr. Smart as a result of these allegations, but Mr. Smart was ordered by a family court judge to have no contact with the minor child.

         Mr. Smart filed a civil rights complaint on July 15, 2013 asserting violations of his Fourth Amendment rights. The Court originally administratively terminated the complaint because Mr. Smart did not use the proper in forma pauperis application form. Mr. Smart requested to reopen the case on January 17, 2014, but the Court denied his application because he still had not completed the proper prisoner in forma pauperis application. Mr. Smart submitted a new application and requested to file an “all inclusive” amended complaint. The Court granted the in forma pauperis application filed the original complaint. Mr. Smart submitted the amended complaint on December 2, 2015, and the Court permitted the amended complaint to proceed on August 30, 2016. The Borough has filed a motion to dismiss the amended complaint for failure to serve former Magnolia Police Chief Robert Doyle pursuant to Federal Rule of Civil Procedure 12(b)(5), and for failure state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Mr. Smart did not file a response in opposition to the motion.

         III. LEGAL STANDARD

         When considering a motion to dismiss a complaint for failure to state a claim, Fed.R.Civ.P. 12(b)(6), the Court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the non-moving party. A motion to dismiss may be granted only if the plaintiff has failed to set forth fair notice of what the claim is and the grounds upon which it rests that make such a claim plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Although Rule 8 does not require “detailed factual allegations, ” it requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

         In reviewing the sufficiency of a complaint, the Court must “tak[e] note of the elements [the] plaintiff must plead to state a claim. Second, it should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, [w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (alterations in original) (internal citations and quotation marks omitted).

         Federal Rules of Civil Procedure 12(b)(5) permits a motion to dismiss for “insufficiency of service of process.” “The party responsible for effecting service has the burden of demonstrating that service was proper.” Sharp v. Kean Univ., 153 F.Supp.3d 669, 677 n.5 (D.N.J. 2015) (citing Grand Entm't Group v. Star Media Sales, 988 F.2d 476, 488 (3d Cir. 1993)).

         IV. DISCUSSION

         i. Failure to Serve

         The Borough argues the amended complaint must be dismissed as to Mr. Doyle because Mr. Smart has failed to properly serve the amended complaint. A review of the docket indicates summons were returned unexecuted as to Mr. Doyle on January 31, 2017. Nothing on the docket indicates Mr. Doyle has since been served with the amended complaint, and Mr. Smart has not moved for an extension of time to serve Mr. Doyle with the amended complaint. The amended complaint is therefore dismissed without prejudice as to Mr. Doyle. Fed.R.Civ.P. 12(b)(5). Mr. Smart may move for an extension of time to serve Mr. Doyle if he can make a showing of good cause for failure to timely serve. Fed.R.Civ.P. 4(m).

         ii. Failure ...


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