Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Duffy v. Absecon Police Department

United States District Court, D. New Jersey

July 12, 2018

BRETT T. DUFFY, Plaintiff,

          Thomas B. Duffy, Esq., Attorney for Plaintiff

          Vanessa Elaine James, Esq. A. Michael Barker, Esq. BARKER, GELFAND, JAMES & SARVAS, P.C., Attorneys for Absecon Defendants

          Christopher Joseph Riggs, Deputy A.G. State of New Jersey Office of the Attorney General, Attorney for State Defendants




         In this case, Plaintiff Brett Duffy (“Plaintiff”) asserts a variety of statutory and constitutional claims against several Defendants, apparently arising out of his arrest and prosecution in 2014. This matter is presently before the Court on three motions: a Motion to Dismiss [Docket Item 27] the Second Amended Complaint [Docket Item 21 (“SAC”)] as against Defendants Judge Julio Mendez, A.S.J.C., Judge Glenn Grant, J.A.D., Acting AOC Administrative Director, [1] Office of the Attorney General of New Jersey, the New Jersey Administrative Office of the Courts, the Office of the Prosecutor of Atlantic County, the State of New Jersey, and Vicinage I of the Superior Court (collectively, “State Defendants”); a Motion to Dismiss [Docket Item 28] the SAC by Absecon Mayor John Armstrong, Absecon Officer Christopher Cavileer, Former Absecon Chief of Police David Risley, Absecon Police Department, and City of Absecon (collectively, “Absecon Defendants”); and Plaintiff's Motion to Amend/Correct the “Federal Complaint, if necessary” [Docket Item 43]. Substantial difficulty is presented in ascertaining which claims are asserted as against which Defendants, and it is in part for this reason that the Court will grant State Defendants' and Absecon Defendants' Motions to Dismiss, in large part without prejudice as detailed more fully herein. The Court will also deny Plaintiff's Motion to Amend/Correct without prejudice.

         Several issues are presented. Defendants move to dismiss, inter alia, on the grounds that Plaintiff's SAC does not consist of a short, plain statement of his causes of action and the supporting factual grounds thereof in violation of Rule 8, Fed. R. Civ. P.; that Plaintiff's descriptions of his claims are implausible and conclusory and thus fail to state a claim under Rule 12(b)(6), Fed. R. Civ. P.; that Plaintiff's claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994); that the SAC fails to allege a prima facie claim of disability discrimination; and that certain claims should be dismissed as against certain defendants for a variety of other reasons.

         The Court turns to the instant motions.


         A. Factual Background [[2]]

         On April 17, 2014, [3] Plaintiff was arrested by officers of the Absecon Police Department for possession of a pellet gun after discharging the pellet gun in Absecon. At the time, he was 21 years old. [Docket Item 21-1 at 29.] While in custody, Plaintiff alleges, he attempted suicide, was taken to the hospital, taken from the hospital by police against medical advice, and continually denied access to his lawyer (and father), who is also his counsel in this case. Plaintiff also claims his rights against self-incrimination (under Miranda) and his right against unreasonable searches and seizures were violated. Plaintiff further complains that these actions led to a subsequent, avoidable, second suicide attempt a few days later that would not have occurred had he not been removed from the hospital against medical advice.

         After he was arrested, Plaintiff was subsequently indicted on two charges: unlawful possession of a weapon in the third degree, N.J.S. 2C:39-5c(1), for “knowingly and unlawfully . . . possess[ing] a firearm, to wit: a GAMO .177 CALIBER PELLET GUN without first having obtained a firearms purchaser identification card in accordance with the provisions of N.J.S. 2C:58-3; contrary to the provisions of N.J.S. 2C:39-5c(1), and against the peace of this State, the government and dignity of the same[;]” and unlawful possession of a weapon in the fourth degree, for “knowingly and unlawfully . . . possessing a certain weapon, to wit: a MACHETE under circumstances not manifestly appropriate for such lawful uses as it may have; contrary to the provisions of N.J.S. 2C:39-5d, and against the peace of this State, the government and dignity of the same.” [Docket Item 21-1 at 55-56.]

         Subsequent to his indictment, Plaintiff eventually entered the Pre-Trial Intervention program (“PTI”). Plaintiff claims that his entry into PTI was delayed either because he is disabled or because he is believed to be disabled, stating that the court system and actors within it do not allow people with “mental illness” to participate in PTI, but rather must take part in “mental illness probation” instead, which is less favorable to criminal defendants than PTI is, as mental illness probation results in a conviction, whereas PTI does not. [SAC at 34.][4]

         Plaintiff complains that certain actions taken against him in the course of his arrest and the ensuing criminal case constituted violations of his rights and/or disability discrimination. Plaintiff claims that he was discriminated against, retaliated against, and harassed because he is disabled, in violation of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act (“RA”), and the New Jersey Law Against Discrimination (“NJLAD”). Id. at 29-36. Plaintiff claims that he is “a qualified person with disabilities. Specifically, he has various developmental disabilities, Neurofibromatosis Type I and cerebral palsy[.]” Id. at 2. He also claims that the retaliation has violated his First Amendment rights. Id. at 30.

         With regard to his claims under 42 U.S.C. § 1983 and the analogous New Jersey Civil Rights Law, Plaintiff claims that the facts in the SAC “have intimidated Brett from exercising numerous Constitutional Rights including, but not limited to, Free Speech, Redress of Grievances (1), 2 Amendment Rights, [5] the Right to be free from illegal searches and seizures (4th), Right to Counsel (5th Amendment), and to be free from cruel and unusual punishment (8th), and Due Process Rights and the right to disability advocacy without retaliation for a given cause for which he may advocate. Specifically, the defendant have violated Brett's rights of Due Process and Equal Protection Rights under the 14th Amendment itself and these amendments by incorporation: 1st, 2nd, 4th, 5th, and 8th Amendments.” Id. at 37. Plaintiff claims municipal liability pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). Id. ¶¶ 54-55, 64-65, 67.

         Plaintiff requests compensatory damages, equitable remedies, and also asserts a claim under the New Jersey Declaratory Judgment Act, whereupon he requests a variety of specific equitable remedies. Id. at 39-42.

         B. Procedural Background

         The Court notes at the outset that, at all times during the pendency of this litigation, Plaintiff has been represented by licensed counsel, Thomas B. Duffy, Esq., who is also Plaintiff's father. Plaintiff is therefore not subject to the generous pleading standards afforded to plaintiffs proceeding pro se, see generally Erickson v. Pardus, 551 U.S. 89, 94 (2007)(“A document filed pro se is to be liberally construed,' and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]'”)(internal citations omitted).

         Although Plaintiff claims that he has a qualified disability, there is no suggestion in the SAC that Plaintiff is, with regard to this action, a minor or incompetent person, either with, Fed.R.Civ.P. 17(c)(1), or without, Fed.R.Civ.P. 17(c)(2), a representative.

         Plaintiff's submissions, including the SAC, the Response in Opposition, and the Motion to Amend, are all then assessed according to the general standards required of licensed attorneys in both the Local Rules and the Federal Rules of Civil Procedure, including Fed.R.Civ.P. 11(b). See Chan v. FIA Card Svcs., No. SACV 10-1300 DOC (JCx), 2010 WL 11558108, at *4 n.2 (C.D. Cal. Oct. 28, 2010)(“The Court further notes that Plaintiff is not pro se but is represented by counsel presumably capable of understanding the elements of [a statutory claim] and alleging appropriate facts in support of this claim.”) Notwithstanding certain provisions in the SAC (see, e.g., Docket Item 21 at 30, claiming a First Amendment violation because a defendant “has kept both Father and Son Duffy from speaking or advocating for people with disabilities”), the Court further notes that Plaintiff's counsel is not a party to this action and the Court does not understand him to assert violations of his own rights, nor any claims as the parent, representative, guardian, or guardian ad litem of Plaintiff.

         Plaintiff initially filed this action in New Jersey state court, in the Law Division of Cumberland County [Docket Item 1-2 at 2] and filed an amended complaint in state court (styled as the First Amended Complaint, id.), ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.