United States District Court, D. New Jersey
SALAHUDDIN F. SMART, Plaintiff,
ALEXANDRO URBINA, et al., Defendants.
B. KUGLER UNITED STATES DISTRICT JUDGE.
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). 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.
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.
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
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,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555).
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).
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)).
Failure to Serve
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).