June 12, 2018
from the United States District Court for the District of New
Jersey (D.C. Civil Action No. 2-16-cv-01110) District Judge:
Honorable Susan D. Wigenton
D. Santagata (Argued) Kaufman Semeraro & Leibman Counsel
Kenyatta K. Stewart, Acting Corporation Counsel Wilson D.
Antoine (Argued) Counsel for Appellees
Before: AMBRO, JORDAN, and HARDIMAN, Circuit Judges
police officers forcibly entered and searched the apartment
of Adriano Roman's girlfriend. App. at 386, 391, 459,
486. They arrested Roman, who was present in the apartment,
after they found drugs in a common area that was shared by
multiple tenants. Id. at 399, 479. Though he was
imprisoned for over six months and indicted for various drug
offenses, the New Jersey Superior Court found the search to
be unlawful and the charges were dropped.
now brings claims against the City of Newark (which includes
its Police Department) and various police officers under 42
U.S.C. § 1983 (which gives a federal remedy against
state officials who, acting under color of state law, deprive
"any citizen of the United States . . . of any rights,
privileges, or immunities secured by the [U.S.] Constitution
and laws") and New Jersey tort law. He alleges the City
had a pattern or practice of constitutional violations and
failed to train, supervise, and discipline its officers. He
also pleads an unlawful search claim against the officers and
contends they are liable for false imprisonment and malicious
prosecution. The District Court dismissed all of the claims
because they were inadequately pled. It also held the City
did not have an ongoing practice of unconstitutional searches
most of Roman's claims do not withstand dismissal, his
§ 1983 claims against the City do. He has adequately
alleged that its Police Department had a custom of
warrantless searches and false arrests. He also sufficiently
pled that the Department failed to train, supervise, and
discipline its officers, specifically with respect to
"the requirements of [the] Fourth Amendment and related
law." App. at 160. Because Roman has stated a plausible
claim against the City, we vacate and remand the District
Court's holding on municipal liability. We affirm in all
2, 2014, Roman and his girlfriend Tiffany Reyes were watching
a movie in her apartment's bedroom. App. at 386, 389,
395. Unbeknownst to them, four Newark police officers had set
up surveillance outside of her building because of complaints
about narcotics activity. Id. at 338. The officers
heard an argument between a man and a woman, id. at
340-42, and decided to enter Reyes' apartment without a
warrant, id. at 491.
they stepped inside the building, they discovered that the
front door of the apartment was locked. They also noticed
Melissa Isaksem, Reyes' friend, walking inside the
building. Id. at 417-20. They stopped and questioned
her. Id. at 417, 419. When she told them she was
visiting Reyes, id. at 419, they ordered her to
knock on the apartment door for them and threatened to arrest
her if she did not comply, id. at 419-20. Isaksem
led them to the apartment and stood directly in front of the
peephole. Id. at 421. The police stood to her left,
presumably out of the peephole's range. Id. An
officer knocked on her behalf. Id. Reyes asked who
was at the door, and Isaksem announced her presence.
opened the door, expecting to see only Isaksem. Id.
at 386, 400, 501. Instead, several officers rushed inside.
Id. at 387, 400, 501. They handcuffed Roman, Reyes,
and Isaksem, then demanded Roman "call someone to bring
drugs to the [apartment]." Am. Compl. ¶ 30
(internal quotation marks omitted). If he did, they assured
him they would "'make a deal' and 'let him
go.'" Id. Roman refused the officers'
demands, id. ¶ 33, and the police searched the
apartment. Eventually they found drugs in a common-area space
that was shared by multiple tenants and located in the back
of the apartment. App. at 399, 479. After seizing the
contraband, they yelled, "[W]e got you, motherfucker[;]
. . . you're fucked now." Id. at 427.
Officer Rodger Mendes walked back to Roman, "flipped him
. . . onto his stomach . . ., put his knee in his neck[, ]
and . . . said he was going to get raped [in prison]."
Id. at 428. Another officer informed Roman's
father, who lived next door and observed parts of the search,
that his son "would go away for a long time."
Id. at 454.
was arrested and imprisoned on the same night. The officers
filed a criminal complaint against him for possession of, as
well as intent to distribute, heroin and cocaine. A New
Jersey grand jury returned a six-count indictment against him
for the same offenses.
response, Roman moved to suppress the evidence seized from
the apartment. He argued the search was invalid under the
Fourth Amendment because the contraband was not in plain view
and thus a warrant was needed. The New Jersey Superior Court
agreed. It concluded the plain-view exception did not apply
and suppressed the contraband.
State of New Jersey did not appeal the ruling and instead
moved to dismiss the case. The Superior Court granted its
motion in December 2014 and issued a final judgment of
dismissal. Roman was released from prison during the same
a year later, Roman brought § 1983 and state-law tort
claims against the City of Newark and various police officers
(for simplicity, the City and the officers are jointly
referred to as the "Defendants"). Among other
things, he alleged the City had a custom or policy of
unconstitutional searches, inadequate training, and poor
supervision and discipline. He also claimed the officers
unlawfully searched his apartment and were liable for the
torts of unlawful imprisonment and malicious
Defendants responded with a motion to dismiss. The District
Court sided with them, dismissing the complaint in its
entirety. It first addressed Roman's claim against the
City and concluded the complaint "fail[ed] to plead . .
. a custom or policy" of unlawful searches and a failure
to train or supervise officers. Roman v. City of
Newark, Civil Action No. 16-1110-SDW-LDW, 2017 WL
436251, at *4 (D.N.J. Jan. 30, 2017). Although the complaint
alleged "a pattern or practice of constitutional
violations in areas including stop and arrest practices,
use of force, and theft by officers," the Court did not
consider that sufficient to state a claim. Id.
(internal quotation marks omitted) (quoting Compl. ¶
59). Instead, it viewed those practices as predating
Roman's arrest and observed that "the imposition of
a [f]ederal [m]onitor indicate[d] [the City's] attempts
to change any wrongful policies or practices."
Court also held the unlawful search claim was inadequately
pled, as Roman did not "explain which [Defendant(s)]
committed the allegedly wrongful acts" during the search
and arrest. Id. Turning to the false imprisonment
and malicious prosecution claims, it construed them as
state-law claims and noted that plaintiffs must comply with
the New Jersey Tort Claims Act before bringing them against
public entities. See N.J. Stat. Ann. § 59:8-1
et seq. Because the "[c]omplaint nowhere
allege[d]" Roman complied with the Act's procedures,
the Court dismissed those claims as well. Roman,
2017 WL 436251, at *6.
Court's dismissal was without prejudice, and it granted
Roman leave to amend. He did so by omitting his tort claims
and retaining his other allegations in almost identical form.
The Court dismissed his amended complaint and reaffirmed its
ruling on reconsideration. This appeal
Jurisdiction and Standard of Review
District Court had federal-question and supplemental
jurisdiction per 28 U.S.C. §§ 1331 and 1367(a),
respectively, and we have jurisdiction over its final orders
under 28 U.S.C. § 1291.
review de novo its dismissal of a complaint under
Federal Rule of Civil Procedure 12(b)(6). See Phillips v.
County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008).
When conducting our review, "we accept all factual
allegations as true [and] construe the complaint in the light
most favorable to the plaintiff." Warren Gen. Hosp.
v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (internal
quotation marks omitted). However, "we are not compelled
to accept unsupported conclusions and unwarranted inferences
. . . or a legal conclusion couched as a factual
allegation[.]" Baraka v. McGreevey, 481 F.3d
187, 195 (3d Cir. 2007) (internal quotation marks omitted)
(internal citation omitted).
Roman sufficiently pled a municipal liability claim against
noted, Roman alleges the City is liable under § 1983
because it "engaged in a pattern or practice of
constitutional violations," "failed to properly
train and/or supervise" its police force, and
"failed to properly and adequately control and
discipline" its police officers. Am. Compl. ¶¶ 68,
73-74. Before discussing the merits of his claims, Roman
directs our attention to the types of documents we may
consider on a motion to dismiss. He contends we may review
three sources that were provided to the District Court: an
article published in the Newark Star Ledger (the
"Star Ledger article"), a press release
issued by the U.S. Attorney's Office (the "press
release"), and a consent decree between the United
States and the City of Newark (the "consent
decree"). The Star Ledger article and press
release were referenced in the amended complaint, see
id. ¶¶ 68-69 (including hyperlinks to both),
but the consent decree was attached to the Defendants'
motion to dismiss, see App. at 129. Roman also asks
us to look at one other document: the Department of
Justice's Report on the investigation of the Newark
Police Department (the "DOJ Report"). Although he
acknowledges the DOJ Report was never provided to the
District Court, he now claims it is integral to the
the Defendants dispute that we may consider the DOJ Report,
they add that we also cannot consider the consent decree
because "no relevant provisions of [it] . . . were ever
cited . . . to the District Court" and it is
inadmissible settlement material. Defendants' Br. at 42.
They assert as well, without any citation to the record, that
Roman may not rely on the decree because he asked the
District Court to confine its analysis to the pleadings.
disagree with the Defendants' view of the consent decree.
Although we examine the "complaint, exhibits attached to
the complaint, [and] matters of public record,"
Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir.
2010), we can also consider documents "that a defendant
attaches as an exhibit to a motion to dismiss,"
Pension Benefits Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), if they are
"undisputedly authentic" and "the
[plaintiff's] claims are based [on them],"
Mayer, 605 F.3d at 230. That holding extends to
settlement material because plaintiffs "need not provide
admissible proof at th[e] [motion-to-dismiss] stage."
In re OSG Sec. Litig., 12 F.Supp.3d 619, 622
(S.D.N.Y. 2014); see also In re MyFord Touch Consumer
Litig., 46 F.Supp.3d 936, 961 n.5 (N.D. Cal. 2014)
(same). Moreover, the Supreme Court has been clear about the
scope of our review, stating we "must consider
the complaint in its entirety, as well as other sources [we]
ordinarily examine when ruling on . . . motions to dismiss,
in particular, documents incorporated into the complaint by
reference, and matters of which a court may take judicial
notice." Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007) (emphasis added).
although the consent decree was not attached to Roman's
amended complaint, we are free to review its contents for
three reasons. First, the Defendants attached the decree
to their motion to dismiss and affirmed that it is
"capable of judicial notice" as an indisputably
authentic government document. App. at 129. Second, contrary
to the dissent's assertion, the Defendants themselves
argued (and correctly) before the District Court that
Roman's claims were based on the consent decree.
Compare Dissenting Op. at 5 ("What is crucial
is whether Roman's complaint was 'based' on the
consent decree."), with App. at 129 (filing
from Defendants characterizing the consent decree as
"integral to the Complaint"). Third, the amended
complaint cited, and the District Court discussed, the DOJ
investigation and federal monitor that eventually led to the
consent decree. See Roman, 2017 WL 436251, at *4;
see also Am. Compl. ¶¶ 68-71. Thus it was
especially important for the Court to have considered the
decree as well, given that it provides essential context to
Roman's claims. That it did not was an abuse of
said, we may not consider the DOJ Report at this stage
because it was not provided to the District Court in the
first instance by any party. Nor is it apparent that the
Court considered it sua sponte. See United
States ex rel. Wilkins v. United Health Grp., Inc., 659
F.3d 295, 302 (3d Cir. 2011) ("Though we do not doubt
the authenticity of these documents, nevertheless we will not
consider them because the parties did not present them to the
District Court and we do not find any indication in the
record that the Court considered them on its own
initiative."). Hence it cannot carry any weight in our
to the amended complaint, Roman claims the City is liable for
his unlawful search because it "failed to train its
officers in the use of search and seizure techniques,
probable cause, and/or methods to properly obtain a search
warrant." Am. Compl. ¶ 95. He alleges the Newark
Police Department "engaged in a pattern or practice of
constitutional violations" and asserts the Department of
Justice appointed a federal monitor to oversee the reforms to
which the City consented. Id. ¶ 68. His
allegations also touch on the City's failure to
"control and discipline" its police force,
id. ¶ 74, and failure to "investigate . .
. instances of . . . police misconduct," id.
¶ 81. He characterizes the City's practices in these
areas as "tantamount to a[n] [unconstitutional] custom
and/or policy," id. ¶ 82, thus indicating
its "deliberate indifference to [its citizens'
constitutional] rights," id. ¶ 83.
Defendants respond that Roman has failed to allege a
municipal liability claim, as no part of the Star
Ledger article, press release, or consent decree
references the types of constitutional violations pled in the
amended complaint. They also contend the City had no notice
"of any pattern of constitutional violations with
respect to forced entry and searches of homes."
Defendants' Br. at 50.
plead a municipal liability claim, a plaintiff must allege
that "a [local] government's policy or custom . . .
inflict[ed] the injury" in question. Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
"Policy is made when a decisionmaker possess[ing] final
authority to establish municipal policy with respect to the
action issues an official proclamation, policy, or
edict." Andrews v. City of Philadelphia, 895
F.2d 1469, 1480 (3d Cir. 1990) (alteration in original)
(internal quotation marks omitted). "Custom, on the
other hand, can be proven by showing that a given course of
conduct, although not specifically endorsed or authorized by
law, is so well-settled and permanent as virtually to
constitute law." Bielevicz v. Dubinon, 915 F.2d
845, 850 (3d Cir. 1990) (Becker, J.); see also Brown v.
Muhlenberg Twp., 269 F.3d 205, 215 (3d Cir. 2001)
("A custom . . . must have the force of law by virtue of
the persistent practices of state [or municipal]
officials." (internal quotation marks omitted)).
a policy or custom is necessary to plead a municipal claim,
it is not sufficient to survive a motion to dismiss. A
plaintiff must also allege that the policy or custom was the
"proximate cause" of his injuries. See Kneipp
v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996). He may do
so by demonstrating an "affirmative link" between
the policy or custom and the particular constitutional
violation he alleges. Bielevicz, 915 F.2d at 850
(internal quotation marks omitted). This is done for a custom
if Roman demonstrates that Newark had knowledge of
"similar unlawful conduct in the past, . . . failed to
take precautions against future violations, and that [its]
failure, at least in part, led to [his] injury."
Id. at 851. Despite these requirements, Roman does
not need to identify a responsible decisionmaker in his
pleadings. See id. at 850. Nor is he required to
prove that the custom had the City's formal approval.
See Anela v. City of Wildwood, 790 F.2d 1063, 1067
(3d Cir. 1986).
pleading requirements are different for failure-to-train
claims because a plaintiff need not allege an
unconstitutional policy. See Reitz v. County of
Bucks, 125 F.3d 139, 145 (3d Cir. 1997) ("[I]n the
absence of an unconstitutional policy, a municipality's
failure to properly train its employees and officers can
create an actionable violation . . . under §
1983."). Instead, he must demonstrate that a city's
failure to train its employees "reflects a deliberate or
conscious choice." Brown, 269 F.3d at 215
(internal quotation marks omitted). For claims involving
police officers, the Supreme Court has held that the failure
to train "serve[s] as [a] basis for § 1983
liability only where [it] . . . amounts to deliberate
indifference to the rights of persons with whom the police
come into contact." City of Canton v. Harris,
489 U.S. 378, 388 (1989) (footnote omitted). A plaintiff
sufficiently pleads deliberate indifference by showing that
"(1) municipal policymakers know that employees will
confront a particular situation[, ] (2) the situation
involves a difficult choice or a history of employees
mishandling[, ] and (3) the wrong choice by an employee will
frequently cause deprivation of constitutional rights."
Doe v. Luzerne County, 660 F.3d 169, 180 (3d Cir.
2011) (internal quotation marks omitted) (quoting Carter
v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir.
of this case law, Roman has not pled a municipal policy, as
his amended complaint fails to refer to "an official
proclamation, policy, or [an] edict." Andrews,
895 F.2d at 1480. However, he has sufficiently alleged a
custom of warrantless or nonconsensual searches. He has also
adequately pled that the City failed to train, supervise, and
discipline its police officers.
start with Roman's allegations on municipal custom. He
asserts the City had "a pattern or practice of
constitutional violations in areas including . . . arrest
practices." App. at 137. He further contends it had
notice of this practice, as it received "complaints
against officers accused of . . . conducting improper
searches and false arrests." Id. at 134. The
amended complaint, along with the press release and Star
Ledger article, note that Newark was under the
supervision of a federal monitor after Roman's arrest.
Am. Compl. ¶ 68; App. at 133, 137. According to the
press release, ...