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Estate of Lavon King v. City of Jersey City

United States District Court, D. New Jersey

June 29, 2018

ESTATE OF LAVON KING, Plaintiff,
v.
CITY OF JERSEY CITY, CITY OF JERSEY CITY POLICE DEPARTMENT, ROBERT COWAN, KENNETH BOWES, ABC CORPS. #1-3, and JOHN DOES #1-3, Defendants.

          OPINION

          KEVIN McNULTY UNITED STATES DISTRICT JUDGE.

         Mr. 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.

         I. BACKGROUND

         Solely 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.

         Mr. 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).

         The 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. ¶¶ 62-72);
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. ¶¶ 81-82);
Claim Eight: negligence and wrongful death (Compl. ¶¶ 83-91).

         Police 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).

         II. LEGAL STANDARD

         Federal 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).

         Federal 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.

         III. DISCUSSION

         A. Proper Service and the Statute of Limitations

         Mr. 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.

         Section 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.

         Overlaid upon that statute of limitations is the limitation of Fed.R.Civ.P. 4(m).[1] 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.[2]

         The 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 limitations.

         The 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.[3] (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)).

         Judge 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 ...


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