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The Estate of Bard v. The City of Vineland

United States District Court, D. New Jersey

January 4, 2019

THE ESTATE OF RICHARD BARD and DANA GERMAN-BUNTON, as administrator ad-prosequendum of THE ESTATE OF RICHARD BARD, Plaintiffs,
v.
THE CITY OF VINELAND, CHIEF RUDY BEU, FORMER CHIEF TIMOTHY CODISPOTI, and JOHN DOE POLICE OFFICERS 1-10, Defendants.

          CONRAD J. BENEDETTO LAW OFFICES OF CONRAD J. BENEDETTO On behalf of Plaintiffs

          A. MICHAEL BARKER TODD J. GELFAND BARKER, GELFAND & JAMES LINWOOD GREENE On behalf of Defendants

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This matter concerns claims by Plaintiff, Dana German-Bunton, the mother of Richard Bard, the decedent, arising out of the shooting death of Bard by Defendant City of Vineland (“City”) police officers. In her original and amended complaint, [1] Plaintiff claimed: a) that the police officers - named as John Does - violated Bard's right to be free from the use of excessive force; b) the City and the police chiefs maintained a policy or custom that fostered the police officers' use of excessive force; and c) the City and police chiefs failed to properly train their officers on the appropriate use of force, all in violation of the Fourth Amendment of the U.S. Constitution and New Jersey Civil Rights Act, N.J.S.A. 10:6- 2(c).

         On October 19, 2017, the Court granted the motion of the City of Vineland, its current police chief, Rudy Beu, and its former police chief, Timothy Codispoti, to dismiss Plaintiff's claims. (Docket No. 18.) The Court afforded Plaintiff leave to file a second amended complaint against those Defendants if she could do so in compliance with Federal Civil Procedure Rules 8 and 11 and the standards set forth by Twombly and Iqbal.[2] (Id.) Plaintiff filed a second amended complaint, and Defendants again moved to dismiss Plaintiff's claims.

         On July 20, 2018, the Court granted Defendants' motion to dismiss Plaintiff's second amended complaint. (Docket No. 27.) The Court held that Plaintiff's second amended complaint failed to plead facts to suggest that the police chiefs, as policymakers for the City of Vineland, made a deliberate choice to promulgate, implement, or maintain the alleged policies and customs and training failures. The Court further found that Plaintiff's second amended complaint also failed to provide facts to suggest that any such policies, customs, or training failures proximately caused the officers' actions during the incident. Thus, the Court again dismissed Plaintiff's claims brought under Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 694 (1978) against the City and the police chiefs. (Id.)

         From the time Plaintiff filed her original complaint through the Court's decision dismissing, for the second time, Plaintiff's Monell claims against the City and the police chiefs, Plaintiff never sought to substitute the John Doe officers with their real identities. In the July 20, 2018 Opinion, the Court stated, “It remains a mystery to the Court why the identities of the officers involved in the shooting death of Bard have not been revealed. Plaintiff's original complaint was filed on March 2, 2017, and even though the formal discovery process has not yet begun because of the two motions to dismiss that were filed, it is unclear why other means are not available to Plaintiff to determine the officers' identities.” (Docket No. 27 at 12-13.) The Court directed Plaintiff to file a letter within 15 days explaining why the John Doe officers had not yet been identified and added to the complaint, so that the Court could determine how the matter would move forward. (Id. at 13.)

         On August 23, 2018, Plaintiff responded that she had identified the officers and she asked for forty-five days to file an amended complaint. (Docket No. 29.) In consideration of Plaintiff's letter and the Court's prior Opinions, the Court directed Plaintiff to file a motion for leave to file an amended complaint pursuant to Fed.R.Civ.P. 15(c) and N.J. Ct. R. 4:26-4 no later than September 21, 2018. (Docket No. 30.) The Court had previously explained that N.J. Ct. R. 4:26-4 - the “fictitious party rule” applicable in federal court - permits a plaintiff to preserve a claim against a yet unidentified potential defendant who may have contributed to the plaintiff's injuries, so long as the plaintiff, via a motion prior to judgment, seeks to amend the complaint to state the defendant's true name, and the motion is accompanied by an affidavit explaining the manner in which that information was obtained, along with evidence of the plaintiff's due diligence. (Docket No. 18 at 15 n.4, citing DeRienzo v. Harvard Industries, Inc., 357 F.3d 348, 353 (3d Cir. 2004) (citing N.J.S.A. 2A:14-2 and N.J. Ct. R. 4:26-4)).)

         Plaintiff filed a motion for leave to amend and attached a proposed third amended complaint, which is currently pending. (Docket No. 31.) The motion does not address N.J. Ct. R. 4:26-4, and it does not explain why Plaintiff had not named the officers previously. The proposed third amended complaint substitutes the “John Does” for the real identities of the officers - Christopher Puglisi and Gerard Moughan. However, the proposed third amended complaint also contains all the same claims the Court previously dismissed twice, except for the elimination of any reference to former police chief Codispoti. (Docket No. 31-3.)

         Defendants have opposed the filing of the proposed third amended complaint. (Docket No. 35.) First, Defendants point out that none of the claims against the City or the police chiefs has changed from the prior dismissed complaints, and those claims should not be allowed to proceed. On that point, the Court agrees. Regurgitated claims that have already been dismissed twice and have no new basis for assertion cannot proceed, for all the same reasons the Court expressed in the prior two opinions.[3]

         Second, Defendants argue that Plaintiff has asserted claims against the two police officers, Christopher Puglisi and Gerard Moughan, for excessive force, [4] but because Plaintiff's third amended complaint fails to aver any facts against Moughan, the excessive force claim against him must be dismissed.[5] Again, the Court agrees.

         The factual allegations in Plaintiff's proposed third amended complaint are as follows:

FACTS COMMON TO ALL CLAIMS FOR RELIEF
23. At the time of his death on April 17, 2016, Richard Bard was ...

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