United States District Court, D. New Jersey
Michael Vazquez, U.S.D.J.
matter comes before the Court on a motion to dismiss
Plaintiffs Amended Complaint filed by Defendants Sergeant
Hussein Sara; Detectives Pablo Gonzalez and Debbie Teixeira;
and Officers Sandro Colon, Josue Duran, Eladio Luciano, and
Anthony Scala (collectively "Defendants"). D.E. 14.
Plaintiff Eric Purvis ("Plaintiff) filed a brief in
opposition, D.E. 17, to which Defendants replied. D.E. 18.
The Court reviewed all submissions made in support of the
motion, and considered the motion without oral argument
pursuant to Fed.R.Civ.P. 78(b) and L. Civ. R. 78.1(b). For
the reasons that follow, Defendants' motion is
FACTS AND PROCEDURAL HISTORY 
March 16, 2017, the Court granted Defendants' motion to
dismiss Plaintiffs original Complaint. D.E. 10, 11. The Court
dismissed the Newark Police Department from the matter with
m prejudice. Id. The Court dismissed all other
counts against Defendants without prejudice. Id. As
to those counts, the Court gave Plaintiff leave to file an
amended complaint within thirty days addressing the
deficiencies noted in the Court's opinion, if he so
filed his First Amended Complaint ("FAC") on April
14, 2017. D.E. 12. Defendants then filed their motion to
dismiss the FAC. D.E. 14. Plaintiff opposed the motion, D.E.
17, to which Defendants replied, D.E. 18.
12(b)(6) governs motions to dismiss for "failure to
state a claim upon which relief can be granted." For a
complaint to survive dismissal under the rule, it must
contain sufficient factual matter to state a claim that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Ail. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is facially plausible
"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.
Although the plausibility standard "does not impose a
probability requirement, it does require a pleading to show
more than a sheer possibility that a defendant has acted
unlawfully." Connelly v. Lane Const. Corp., 809
F.3d 780, 786 (3d Cir. 2016) (internal quotation marks and
citations omitted). As a result, a plaintiff must
"allege sufficient facts to raise a reasonable
expectation that discovery will uncover proof of [his]
claims." Id. at 789.
evaluating the sufficiency of a complaint, district courts
must separate the factual and legal elements. Fowler v.
UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009).
Restatements of the elements of a claim are legal
conclusions, and therefore, not entitled to a presumption of
truth. Burtch v. Milberg Factors, Inc., 662 F.3d
212, 224 (3d Cir. 2011). The Court, however, "must
accept all of the complaint's well-pleaded facts as
true." Fowler, 578 F.3d at 210. In deciding a
motion to dismiss the Court may also consider any
"document integral to or explicitly relied upon in the
complaint." Schmidt v. Skolas, 770 F.3d 241,
249 (3d Cir. 2014) (citing In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)
(quotation & emphasis omitted)). Even if plausibly pled,
however, a complaint will not withstand a motion to dismiss
if the facts alleged do not state "a legally cognizable
cause of action." Turner v. J.P. Morgan Chase &
Co., No. 14-7148, 2015 WL 12826480, at *2 (D.N.J. Jan.
opinion and order addressing the first motion to dismiss, the
counts dismissed without prejudice included a Fourth
Amendment malicious prosecution claim, a Fourteenth Amendment
civil rights violation claim, and a Fourteenth Amendment
selective enforcement claim. D.E. 10, 11. In his FAC,
Plaintiff re-pled each of the counts the Court dismissed
without prejudice. Plaintiff, however, did not cure any of
the deficiencies to make these three counts plausibly pled in
his FAC. In fact, Plaintiff made no substantial changes in
his FAC. The few minors changes Plaintiff made are
insufficient to make the counts plausibly pled.
example, in his FAC, Plaintiff recites the allegation that
Defendant Scala stated that it was Plaintiff who caused a
laceration to Abrue Ramos's ("Mr. Ramos") head
and then retrieved a handgun. FAC ¶ 31. Plaintiff then
adds in the FAC that "Defendant Scala had no reasonable
basis to make that statement." Id. ¶ 32. A
little more than twenty paragraphs later, Plaintiff repeats
this pattern. He re-alleges that Defendant Scala made
statements concerning the fight between Plaintiff and Mr.
Ramos. Id. ¶¶ 49-53. Plaintiff then adds
in the FAC that "Defendant Scala had no reasonable basis
to make any of the foregoing statements. To the contrary, all
physical evidence is in direct contravention of Defendant
Scala's aforementioned statements." Id.
¶ 54. These alterations to the FAC do not contain
sufficient factual matter to make the counts plausible.
Instead, they are merely conclusory statements.
other changes to the FAC are even less substantial. Thus, in
light of the Court's first detailed opinion dismissing
Plaintiffs Complaint and the lack of substantive and
sufficient changes made to Plaintiffs FAC, the Court grants
Defendants' motion to dismiss. The Court must also decide
whether it will grant Plaintiff another opportunity to file
an amended complaint.
a complaint is subject to a Rule 12(b)(6) dismissal, a
district court must permit a curative amendment unless such
an amendment would be inequitable ox futile."
Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d
Cir. 2008) (emphasis added). Similarly, Federal Rule of Civil
Procedure 15 invokes a liberal approach to amendment and
states that "leave shall be freely given when justice so
requires" unless other factors weigh against such
relief. Dole v. Arco Chemical Co., 921 F.2d 484,
486-87 (3d Cir. 1990). Factors that weigh against amendment
include "undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc." Foman v.
Davis, 371 U.S. 178, 182 (1962). Amendment is futile
"if the amended complaint would not survive a motion to
dismiss for failure to state a claim upon which relief could
be granted." Alvin v. Suzuki, 227 F.3d 107, 121
(3d Cir. 2000). A district court may therefore "properly
deny leave to amend where the amendment would not withstand a
motion to dismiss." Centifanti v. Nix, 865 F.2d
1422, 1431 (3d Cir. 1989).
Court finds that any further amendment of the complaint would
be futile. In its initial opinion, the Court set forth in
detail the alleged facts, the governing law, and the
deficiencies of the initial Complaint. D.E. 10. Plaintiff has
made no good faith effort to address any of the noted
deficiencies, instead making nominal and immaterial
alterations in the FAC. As a result, the Court determines
that Plaintiff did not make the necessary changes because
Plaintiff could not in good faith do so. Therefore, Count I
(Fourth Amendment malicious prosecution claim), Count II ...