United States District Court, D. New Jersey
McNULTY UNITED STATES DISTRICT JUDGE.
Lavon King was shot by a Jersey City police officer and died
on June 24, 2014. The Estate of Lavon King brings causes of
action against the City of Jersey City, the Jersey City
Police Department, Kenneth Bowes (the police officer
allegedly involved), and Robert Cowan (the police chief).
Presently before the court is Chief Cowan's motion to
dismiss the complaint.
for purposes of this motion to dismiss, the allegations of
the Complaint are assumed to be true and all inferences are
drawn in favor of die plaintiff.
Lavon King was a resident of New Jersey and is identified as
an African-American man, a fact possibly relevant to the
claims in the Complaint. (Compl. ¶ 5). On June 24, 2014,
Mr. King was in Jersey City, New Jersey. (Compl. ¶ 14).
At approximately 4:30 pm, officer Kenneth Bowes and another,
unknown police officer observed Mr. King and began to pursue
him. (Compl. ¶¶ 14-15). Officer Bowes pursued Mr.
King on foot while the unknown police officer followed in a
vehicle. (Compl. ¶ 16). It is alleged that Mr. King was
chased through several backyards on Ege Avenue in Jersey
City. (Compl. ¶ 17). Mr. King, who was unarmed,
attempted to hide in an unlocked shed. (Compl. ¶¶
17-18). Bowes came to the shed, opened the door, and shot Mr.
King once in the abdomen. (Compl. ¶¶ 19-20). Mr.
King died of his injuries. (Compl. ¶ 20).
Estate of Lavon King brings eight claims in its complaint:
■ Claim One: deprivation of civil
rights under 42 U.S.C. § 1983 ("Section 1983")
by the use of excessive force (Compl. ¶¶ 21-40);
■ Claim Two: racial discrimination in
violation of the Equal Protection Clause and 42 U.S.C. §
1981 (Compl. ¶¶ 41-57);
■ Claim Three: violation of Section
1983 by failure to implement appropriate policies, customs,
and practices (Compl. ¶¶ 58-61);
■ Claim Four: violation of Section
1983 by failure to properly screen, supervise, discipline,
transfer, counsel, and/or otherwise control police officers
who are repeatedly accused of such acts (Compl. ¶¶
■ Claim Five: violation of Section
1983 through respondeat superior (Compl. ¶¶ 73-76);
■ Claim Six: violation of the New
Jersey State Constitution (Compl. ¶¶ 77-80);
■ Claim Seven: violation of 42 U.S.C.
§ 1986 for neglect to prevent (Compl. ¶¶
■ Claim Eight: negligence and wrongful
death (Compl. ¶¶ 83-91).
Chief Cowan has moved to dismiss the complaint. (ECF No. 42).
Cowan claims that the Estate failed to timely serve him, that
the Complaint fails to state a claim upon which relief can be
granted, and that as Chief of Police he is protected by
qualified immunity. (ECF No. 42).
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of a complaint, in whole or in part, if it fails to state a
claim upon which relief can be granted. The defendant, as the
moving party, bears the burden of showing that no claim has
been stated. Animal Sci. Prods., Inc. v. China Minmetals
Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011). For the
purposes of a motion to dismiss, the facts alleged in the
complaint are accepted as true and all reasonable inferences
are drawn in favor of the plaintiff. New Jersey
Carpenters & the Trs, Thereof v. Tishman Constr. Corp. of
New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).
Rule of Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, "a
plaintiffs obligation to provide the 'grounds' of his
'entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." BellAtL Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint's factual allegations must be sufficient to
raise a plaintiffs right to relief above a speculative level,
so that a claim is "plausible on its face."
Id. at 570; see also West Run Student Hous.
Assocs., LLC v. Huntington Nat'l Bank, 712 F.3d 165,
169 (3d Cir. 2013). That facial-plausibility standard is met
"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). While "[t]he
plausibility standard is not akin to a 'probability
requirement'... it asks for more than a sheer
possibility." Iqbal, 556 U.S. at 678.
Proper Service and the Statute of Limitations
Cowan argues that he was not served in a timely manner and
that the allegations against him should therefore be
dismissed with prejudice. Mr. Cowan's argument depends
both upon the statute of limitations and the time limits for
service of process.
1983 does not have its own statute of limitations. Lake
v. Arnold, 232 F.3d 360, 368 (3d Cir. 2000). Rather,
courts "use the statute of limitations for the state
where the federal court sits unless its application would
conflict with the Constitution or with federal law."
Id. Specifically, a Section 1983 claim is
characterized as a personal-injury claim and is governed by
the state's statute of limitations for personal-injury
claims. See Dique v. New Jersey State Police, 603
F.3d 181, 185 (3d Cir. 2010). The relevant New Jersey statute
of limitations is two years. See Brown v. Foley, 810
F.2d 55, 56-57 (3d Cir. 1987) (citing N.J. Stat. Ann. §
2A:14-2). The Estate's claims are based on the events of
June 24, 2014. Therefore, the Estate's claims would be
timely only if brought on or before June 24, 2016.
upon that statute of limitations is the limitation of
Fed.R.Civ.P. 4(m). Under the version effective at that time,
Rule 4(m) required that a summons and complaint be served
witiiin 120 days after filing, unless the period is extended
for good cause by the court.
Estate filed the complaint on September 15, 2015, well within
the two-year limitations period for a Section 1983 action.
Cowan maintains, however, that he was not served until after
the expiration of the then- applicable 120-day limit of Rule
4(m). Therefore, he says, service was not timely, and indeed
it did not occur until well after the two-year limitations
period had run. Therefore, he argues, the action, despite
having been timely filed, must be dismissed because it was
untimely served, and is now barred by the statute of
120-day deadline of Rule 4(m), as noted, began running on
September 15, 2015, and expired on January 13, 2016. On June
9, 2017- after the deadline for service had expired-the
Estate filed a motion for an extension of time in which to
serve Mr. Cowan. (ECF No. 23). On August 23, 2017, Magistrate
Judge Hammer issued an order finding that good cause existed
to extend the Rule 4(m) deadline for service of the complaint
upon Mr. Cowan. (ECF No. 26). The Estate, he found, had
attempted to serve Mr. Cowan via service upon the
clerk of Jersey City in late September 2015. (ECF Nos. 26,
49). At the time, however, Mr. Cowan was no longer employed
by the city. (Id.). The plaintiff was unaware of
tiiat fact, however, and the clerk allegedly did not inform
the process server that Cowan had left his
position. (Mr. Cowan alleges that the city told the
Estate that it was unable to accept service on Mr.
Cowan's behalf in late September 2015 (ECF No. 49)).
Hammer gave the Estate until October 6, 2017 to effectuate
service. (ECF No. 26). The Estate claims that it made
repeated unsuccessful attempts to serve Mr. Cowan at the
address provided by Jersey City-and that its efforts included
the hiring of two process servers. (ECF No. 47, p. 3). The