United States District Court, D. New Jersey
TIMOTHY W. SIMMONS, Plaintiff,
ROXBURY POLICE DEP'T et al., Defendants.
MICHAEL VAZQUEZ United States District Judge
matter comes before the Court upon the filing of a prisoner
civil rights complaint under 42 U.S.C. § 1983, the New
Jersey Civil Rights Act (“NJCRA”), and the New
Jersey Tort Claims Act (“NJTCA”) by Plaintiff
Timothy W. Simmons. (Compl., ECF No. 1) Plaintiff is a
prisoner confined in Southern State Correctional Facility, in
Delmont, New Jersey. (Id.) He brings this civil
action seeking damages and injunctive relief for alleged
constitutional violations that occurred during his 2015
arrest and subsequent prosecution. (Id.)
Sua Sponte Dismissal
28 U.S.C. § 1915(e)(2)(B), district courts must review
complaints filed by persons proceeding in forma
pauperis in civil actions, and dismiss any claim that is
frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. A pleading must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible
on its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “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.”
Id. (quoting Twombly, 550 U.S. at 556.)
court must accept as true all of the allegations contained in
a complaint[.]” Id. Legal conclusions,
together with threadbare recitals of the elements of a cause
of action, do not suffice to state a claim. Id.
Thus, “a court considering a motion to dismiss can
choose to begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the
assumption of truth.” Id. at 679. “While
legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.”
Id. If a complaint can be remedied by an amendment,
a district court may not dismiss the complaint with
prejudice, but must permit the amendment. Grayson v.
Mayview State Hospital, 293 F.3d 103, 108 (3d Cir.
must liberally construe pleadings that are filed pro se.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Thus,
“a pro se complaint, however inartfully
pleaded, must be held to ‘less stringent standards than
formal pleadings drafted by lawyers.'” Id.
(internal quotation marks omitted). “Court personnel
reviewing pro se pleadings are charged with the
responsibility of deciphering why the submission was filed,
what the litigant is seeking, and what claims she may be
making.” See Higgs v. Atty. Gen. of the U.S.,
655 F.3d 333, 339-40 (3d Cir. 2011) (quoting Jonathan D.
Rosenbloom, Exploring Methods to Improve Management and
Fairness in Pro Se Cases: A Study of the Pro Se
Docket in the Southern District of New York, 30
Fordham Urb. L.J. 305, 308 (2002)). “The Court need
not, however, credit a pro se plaintiff's
‘bald assertions' or ‘legal
conclusions.'” D'Agostino v. CECOM
RDEC, No. 10-4558, 2010 WL 3719623, at *1 (D.N.J. Sept.
brings this civil action against the following persons: (1)
employees of the Roxbury Police Department (Chief James
Simonetti, Detective Matthew Holland, Sergeant Dean Adone,
Detective Howell, Detective Manisa, Detective Xhudo,
Lieutenant Marc Palanchi, Sergeant Kevin Carroll, Patrolman
Jake Field, Patrolman Thomas Denicola, Patrolman Eric Weaver,
Patrolman S. Weaver); (2) employees of the Morristown Police
Department ([unnamed] Chief, Corporal Krauss); (3) employees
of Morris County Sherriff's Department (Sheriff Edward
Rochford, James Gannon, Commander Fluri, S.O. Sergeant
Davidek, S.O. Cilurso, S.O. Perez, S.O. McMahon, and Sergeant
Dean Adone); (4) employees of Denville Police Department
([unnamed] Chief, and Patrolman Weldon); (5) employees of the
Morris County Prosecutor's Office (Bradford Seabury,
T.F.O. Harrison Dillard, T.F.O. Sutphen, T.F.O. Boyko,
Detective Tracey, Detective Spence Osaigbovo); (6) a
Confidential Informant; (7) employees of the Office of the
Public Defender: (Elizabeth A. Martin and Robert Gracia
Montilus); and (8) a Confidential Informant/Cooperating
Witness. (ECF No. 1 at 3-8.) Plaintiff also names four DEA
Task Force Officers. (Id. at 8.) Each individual is
sued in his/her official and individual
capacity. (Id. at 8.) Plaintiff also sues
the following entities: Roxbury Township Police Department,
Morris County Sheriff's Department, Denville Police
Department, Morristown Police Department, Morris County
Prosecutor's Office, and Office of the Public Defender.
(ECF No. 1, caption.)
states that the members of the DEA Task Force have been named
“for Service of Process Only.” (ECF No. 1 at 8.)
A summons and complaint is served only on the
defendants.The Court construes Plaintiff's
statement that the DEA Task Force members are named
“for service of process only, ” to mean that
Plaintiff does not intend to proceed with claims against
them. Moreover, Plaintiff does not make any plausible
allegations of wrongdoing concerning the DEA Task Force
members. Therefore, the Court dismisses them from the
Complaint without prejudice.
alleges the following facts in support of his complaint. In
June 2015, Plaintiff was unlawfully entrapped and seized by
the defendants in violation of his civil rights. (ECF No. 1
at 9, ¶1.) The Police Defendants and Morris County
Prosecutor's Office used a confidential informant
(“CI”) to record phone conversations and make
video recordings of Plaintiff. (ECF No. 1 at 9,
¶3.) According to Plaintiff, the recordings
were made without a warrant, without a reasonable articulable
suspicion, without probable cause, and without prior judicial
authorization. (Id.) The Defendants drew Plaintiff
“into a scheme that caused [him] injury and harm also
unlawfully entrapping the [him].” (Id.)
2015, the Police Defendants, prosecutors and CI, using a
battering ram, broke into Plaintiff's hotel room at the
Holiday Inn in Roxbury, New Jersey. (Id., ¶5.)
They threw Plaintiff from the bed to the floor, kneed him in
the back, and stepped on his face. (Id., ¶5.)
Plaintiff had been sleeping and showed no resistance.
(Id.) Defendants “continued to unlawfully
coerce Plaintiff by showing an unreasonable amount of force
by unlawfully pointing guns at [him].” (Id.,
¶6.) They searched his room and his possessions without
a warrant and did not find any illegal contraband.
(Id.) Plaintiff alleges Bradford Seabury of the
Morris County Prosecutor's Office, along with several
other Defendants, acted outside his traditional prosecutorial
role in executing a warrantless search and unlawful seizure.
(ECF No. 1 at 9-10, ¶4.)
arrested Plaintiff without giving him Miranda warnings and
“maliciously charged plaintiff with conspiracy and
possession with the intent to distribute marijuana charges
that were baseless and unfounded.” (ECF No. 1 at 11,
¶7.) Plaintiff alleges “the Honorable Thomas J.
Critchley J.S.C. threw out the plea/conviction” on
December 6, 2016. (Id.)
alleges his public defenders, mishandled his criminal defense
allowing plaintiff to be prosecuted on evidence that is
illegally tainted by “the fruit of the poisonous
tree” and the product of an illegal search and that
plaintiffs attorneys from the Public Defenders Office and
other Pool attorneys failed to defend plaintiff and were
grossly negligent by not investigating the states evidence,
refused to hold bail hearings, refused to keep defendant
informed at several junctions, failed to hold probable cause
hearings, refused to hold suppression hearings to determine
if plaintiff's rights were being violated, in which they
actually were, vehemently denied plaintiff evidentiary
hearings, denied plaintiff his complete discovery allowing
the defendants to maliciously prosecute plaintiff.
seeks money damages and criminal prosecutions of the
Defendants. (Compl., ECF No. 1 at 18.) Federal district
courts, however, cannot initiate criminal prosecutions. U.S.
v. Santtini, 963 F.2d 585, 595 (3d Cir. 1992)
(“[a]s a general proposition, matters of law
“enforcement” are within the power of the
executive branch.”) (citing United States v.
Russell, 411 U.S. 423, 435 (1973) (“execution of
the federal laws under our Constitution is confided primarily
to the Executive Branch of the Government”)). Thus, any
claim for relief requesting criminal prosecutions is struck
from the Complaint.
plaintiff may have a cause of action under 42 U.S.C. §
1983 for violations of his constitutional rights. Section
1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory ...
subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other
proper proceeding for redress.
to state a claim for relief under § 1983, a plaintiff
must allege, first, the violation of a right secured by the
Constitution or laws of the United States and, second, that
the alleged deprivation was committed or caused by a person
acting under color of state law. West v. Atkins, 487
U.S. 42, 48 (1988); Piecknick v. Pennsylvania, 36
F.3d 1250, 1255-56 (3d Cir. 1994).
NJCRA provides, in pertinent part:
[a]ny person who has been deprived of any substantive due
process or equal protection rights, privileges or immunities
secured by the Constitution or laws of the United States, or
any substantive rights, privileges or immunities secured by
the Constitution or laws of this State, or whose exercise or
enjoyment of those substantive rights, privileges or
immunities has been interfered with or attempted to be
interfered with, by threats, intimidation or coercion by a
person acting under color of law, may bring a civil action
for damages and for injunctive or other appropriate relief.
The penalty provided in subsection e. of this section shall
be applicable to a violation of this subsection.
district, courts have repeatedly interpreted the NJCRA as
analogous to § 1983. See Trafton v. City of
Woodbury, 799 F.Supp.2d 417, 443 (D.N.J. 2011)
(collecting cases); see Hedges v. Musco,
204 F.3d 109, 121 n. 12 (3d Cir. 2000) (concluding that New
Jersey's constitutional provision concerning unreasonable
searches and seizures is interpreted analogously to the
Fourth Amendment) (citing Desilets v. Clearview Reg'l
Bd. of Educ., 627 A.2d 667, 673 ( N.J.Super.Ct.App.Div.
1993)). Therefore, the Court considers Plaintiff's §
1983 and NJCRA claims together.
named the following entities as defendants to his § 1983
and NJCRA claims, based on their involvement in his arrest
and/or prosecution: Roxbury Township Police Department,
Morris County Sheriff's Department, Denville Police
Department, Morristown Police Department, Morris County
Prosecutor's Office, and Office of the Public Defender. A
city or county police department is not a proper party to a
§ 1983 action because police departments are
“governmental sub-unit[s] that [are] not distinct from
the municipality of which it is a part.” Mikhaeil
v. Santos, 646 F. App'x 158, 163 (3d Cir. 2016) (per
curiam). Plaintiff also raised claims against the Morris
County Sheriff's SERT and K-9 Teams. A specialized police
unit is not a “person” that can be sued under
§ 1983. See Surine v. Edgcomb, 479 F. App'x
405, 408 (3d Cir. 2012) (per curiam) (“SERT itself is
not a ‘person for purposes of section 1983 and thus may
not be sued”) (citing Will v. Michigan Dep't of
State Police, 491 U.S. 58, 71 (1989)).
result, the Court construes the allegations against the
police departments as allegations against the local
government bodies under which they fall: Roxbury Township,
Morris County, Township of Denville, and Town of Morristown.
The Court also construes the claims against the SERT and the
K-9 Team as claims against Morris County.
county prosecutor's office is a state agency, and is not
a person amenable to suit under § 1983.
Mikhaeil, 646 F. App'x at 161 (citing Estate
of Lagano v. Bergen Cty. Prosecutor's Office, 769
F.3d 850, 854-55 (3d Cir. 2014) (holding that New Jersey
county prosecutor's offices are considered state agencies
for § 1983 purposes when fulfilling their law
enforcement and investigative-as opposed to
administrative-roles). The ...