United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on two motions to dismiss filed
by all Defendants in this action. (ECF Nos. 125, 130).
Defendants are seeking dismissal of the Third Consolidated
Amended Complaint ("TCAC") filed by Plaintiffs
Liberty Bell Temple III and Edward Forchion, wherein
Plaintiffs raised several claims: unlawful seizure (counts 1
and 2); substantive due process violations (counts 3-6);
procedural due process violations (counts 7, 13, 14, 17 and
18), violation of the equal protection clause (counts 8-9);
first amendment retaliation (counts 10-11); failure to train
under Monell v. Dept. of Social Servs. of City of New
York, 436 U.S. 658, 694 (1978) (count 12); negligence
(counts 15, 16, 19-23, 25-27); conversion (counts 24, 28);
respondeat superior liability (count 29); and
malicious prosecution (count 30). Plaintiffs also seek
"special damages in an amount of at least $80, 000"
(count 31); punitive damages (count 32); and attorney fees
(count 33). The Court has subject matter jurisdiction
pursuant to 28 U.S.C. § 1331.
Edward Forchion ("Plaintiff or "Forchion") is
a well-known marijuana activist in New Jersey known to many
as "NJ Weedman." (TCAC ¶ 26, ECF No. 119). In
2015, Forchion opened a restaurant called The Joint, and The
Temple (together, "The Joint"), in Trenton, New
Jersey. (Id. ¶ 27). Throughout its operations,
The Joint "displayed colorful signs encouraging the
legalization of marijuana." (Id. ¶ 28).
The Joint is in a zoning district designated for business
purposes. (Id. ¶¶ 29, 34). The Joint is
located across the street from Trenton City Hall
(Id. ¶ 29), and in close proximity to a federal
TCAC names the following Defendants: the City of Trenton;
Earnest Parrey, the Police Director of the Trenton Police
Department (TPD) and policymaker with regard to officer
training; Edelmiro Gonzalez, Jr., a TPD captain; Yolanda
Ward, a TPD detective; Herbert Flowers, a TPD police officer;
Richard Kachmar, the Clerk for the City of Trenton; Sheehan
Miles, a TPD police officer; Brian Suschke, a TPD sergeant;
William "Bill" Haumann, an assistant prosecutor and
the Chief of Forfeiture at the Mercer County Prosecutor's
Office ("MCPO"); Brian Hawkins, owner and operator
of Hawk's Recovery and Towing, Inc. ("Hawk's
Towing"); Hawk's Towing; Angelo Onofri, the
prosecutor at MCPO; John Boyle, an assistant prosecutor at
MCPO; Stephanie Katz, an assistant prosecutor at the MCPO;
and Kimberly Wilson, the Chief Municipal Prosecutor at the
Trenton Department of Law. (Id. ¶¶ 7-25).
The February 28.2016 Incident
February 28, 2016, TPD officers arrived at The Joint to
enforce a Trenton noise ordinance and forced everyone to
leave the premises. (Id. ¶ 40). Plaintiffs
allege that the TPD officers arrived at The Joint "after
11 p.m. but before 2 a.m." (Id. ¶ 40).
Plaintiffs allege, on information and belief, that Defendant
Gonzalez and other Defendant TPD officers had no reasonable
suspicion that a crime had been committed when they ordered
everyone to vacate The Joint. (Id. ¶ 41).
Plaintiffs further allege, upon information and belief, that
Defendant Gonzalez made "false statements in an
affidavit by stating that he and the other Defendant Officers
were dispatched to Forchion's business [on February 28,
2016] in response to reports of disorderly conduct involving
a street fight." (Id. ¶ 42). Plaintiffs
also allege that "Defendant Officers filed false police
reports on Forchion regarding, inter alia, Forchion
operating his business after 11 p.m. (but before 2
a.m.)." (Id. ¶ 43).
on a police report (City Defendants' Moving Brief, Ex. 5,
February 28, 2016 Trenton Police and Fire Event
Report)-dispute Plaintiffs' account of what occurred on
the evening of February 28, 2016. Defendants contend that:
the TPD officers were responding to a call reporting a street
fight at approximately 2:30 a.m.; the customers in The Joint
had exited the restaurant prior to the officers' arrival;
and officers at the scene observed several men fighting and a
crowd of about thirty people in front of the restaurant.
Defendants "Wage a Campaign Against"
allege that Defendants "waged a campaign against"
Forchion and The Joint. (Id. at ¶ 46). TPD
officers allegedly targeted and stopped The Joint's
customers and instructed them not to patronize the business.
(Id.). In addition, TPD officers contacted
neighboring businesses to prohibit The Joint's customers
from using their parking lots, and the police began to
routinely park police vehicles near the business.
(Id. ¶¶ 47-48). Plaintiffs contend that
these actions resulted in significant financial losses.
(Id. ¶ 49).
officers also "routinely" issued citations to The
Joint for violating Trenton Ordinance § 146-22(A) (the
"Ordinance"), which governs the operating hours of
A. No. establishment on a premises whose building or grounds
are closer than 100 feet to the closest point of the building
or grounds of a residential property situated within any
residential zone of the City shall not be open for business
or conduct business or invite or permit access by the general
public for any purposes between the hours of 11:00 p.m. of
any day and 6:00 a.m. of the following day, prevailing time.
B. During the hours of closing prescribed herein the property
shall be securely closed against access by the public to the
building and to the parking areas by the use of appropriately
sized and placed fencing, posts or chains and by posting
"No Trespassing" signs.
C. Locations that operate primarily as a licensed alcoholic
beverage premises shall not be open for business or conduct
business or allow the service, consumption, or delivery of
any alcoholic beverage directly or indirectly during the
hours as set by § 10-5 of the City of Trenton Code.
D. At no time shall any business, operation or establishment
other than a licensed alcoholic beverage premises be allowed
to operate between the hours of 2:00 a.m. and 6:00 a.m.
(Trenton, N.J. Code § 146-22; TCAC ¶ 30).
Plaintiffs claim that based on The Joint's proximity to a
residential property, the Ordinance only restricts him from
operating the business from 2:00 a.m. to 6:00 a.m. (TCAC
¶¶ 32-39). Plaintiffs further allege that TPD
officer filed several false reports regarding The Joint's
operation after 11 p.m (but before 2 a.m.). (Id.
¶¶ 43, 44).
Forchion is Retaliated Against for Filing the Instant
response to Forchion initiating this action alleging,
inter alia, the allegations set forth above, he
alleges that "even more police harassment was
perpetuated on Mr. Forchion and his business patrons."
(Id. ¶ 51). TPD officers continued issuing
citations and continued parking police vehicles outside of
The Joint. (Id.).
TPD Obtains and Executes a Search Warrant and Seizes
April 18, 2016, law enforcement obtained a warrant
authorizing a search of The Joint. (City Defendants'
Moving Br., Ex. 9, April 18, 2016 Search Warrant). On April
27, 2016, TPD officers conducted a raid on the business,
arresting Forchion for marijuana offenses and seizing his two
vehicles. (TCAC ¶ 52). The TPD officers also seized the
surveillance video from February 28, 2016, and "two
silver portable hard drives containing computer files,
including business records and hours of video and valuable
intellectual property." (Id. ¶¶ 53,
55). "[N]o steps were taken ... to initiate forfeiture
proceedings against the DVR surveillance video" or the
hard drives. (Id. ¶¶ 54, 56).
Forchion's Vehicles are Seized
vehicles seized by the TPD during the April 27, 2016 search
were: (1) Forchion's "iconic" N.J. WEEDMAN Van,
a multicolored 1986 Ford Econoline el50; and (2) his delivery
car, a blue Toyota Matrix. (Id. ¶ 52).
officers allegedly informed him that forfeiture proceedings
would commence against the vehicles within sixty to ninety
days, but no such proceedings ever took place. (Id.
¶¶ 59-61). Instead, officers obtained a search
warrant for the van and the title was transferred to
Defendant Hawk's Towing as the van was deemed abandoned.
Then Hawk's Towing, after obtaining the title to the van,
crushed and destroyed the van. (Id. ¶¶ 59,
was not notified of the status of any forfeiture proceeding
and was not notified that the van was considered abandoned
and would be crushed. (Id. ¶ 68). In fact, when
Forchion noticed that forfeiture proceedings had commenced
against a sum of money and not the van, he contacted TPD.
Defendant Suschke advised him that the prosecutor was not
seeking forfeiture of the van, and that is was located at
Hawk's Towing. When Forchion contacted Hawk's Towing,
Defendant Brian Hawkins, the owner of Hawk's Towing, told
him that the property had been deemed abandoned, and was
stripped for scrap and crushed. (Id. ¶ 63).
contends Defendant Haumann, as chief of the Mercer County
Prosecutor's Office forfeiture unit, failed to notify
Forchion that the vehicles were not subject to forfeiture
proceedings. (Id. ¶¶ 71-72), and that
Defendants Hawkins and Hawk's Towing failed to notify
Forchion that his van was deemed abandoned. (Id.
Mercer County Prosecutor's Office held the delivery car
for two years and only returned it to Forchion after his
lawyers made "multiple calls." (Id. ¶
Forchion Protests and Later Gets Arrested for Cyber
10, 2016, a strange incident took place, which commenced with
Forchion standing outside of The Joint holding a sign that
stated, "We R Open Fuck the Police" and shouting
"Fuck the police" as TPD officers parked nearby.
(Id. ¶ 80). Forchion and Defendants Flowers
then engaged in a verbal altercation, during which Forchion
accused Flowers of being a pedophile. (Id.
¶¶ 81-83). A third party recorded the verbal
exchange and posted it on social media. (Id. ¶
84). As a result, Forchion was later arrested and charged
with cyber bullying. (Id. ¶ 86). Forchion
alleges the arrest was because of his civil action, his
anti-police sign, and his anti-police rhetoric. (Id.
¶ 87). Forchion also alleges that thereafter, the police
increased surveillance of his business and issued even more
citations for allegedly violating the Ordinance.
(Id. ¶¶ 88-89).
dispute the circumstances surrounding this incident,
contending that Forchion "used foul language directed at
Flowers" and Forchion had "posted information
online [about] his interaction with Flowers relating to his
assertions that Flowers allegedly being a pedophile."
(City Defendants' Moving Br. at 26; see also
id., Ex. 12, May 10, 2016 Trenton Police and Fire Event
Report). Defendants also note that a criminal complaint was
filed against Plaintiff for cyber harassment, in violation of
N.J.S.A. 2C33-4.1(a)(2). On September 15, 2016, a grand jury
returned an indictment against Forchion. (See id.,
Ex.14, Mercer County Indictment No. 16-09-0720).
The Joint's Business License is Revoked
Defendants allegedly decided to revoke the The Joint's
business license based on "sham" violations of the
Ordinance. (Id. ¶¶ 90-91). Plaintiff
claims that those Defendants sent notice of the revocation
hearing to Forchion's former residential address, rather
than the address of The Joint, so that Forchion would not
have "a chance to fight back." (Id.
¶¶ 95-99). However, the notice was sent to the same
address that Plaintiffs provided in their business license
application when The Joint opened in 2015. (See City
Defendants' Moving Br., Ex. 2, Business/Peddler's
License Application for N.J. Weedman's Joint; see
also id., Ex. 18, September 19, 2016 Letter from Trenton
City Clerk to Edward Forchion).
letter dated September 19, 2016, The Joint's business
license was revoked effective September 21, 2016.
(Id. ¶ 100). Plaintiff appealed the license
revocation, and at least one notice relating to the appeal
was mailed to 322 E. State Street-the location of The Joint.
(See City Defendants' Moving Br., Ex. 19,
September 26, 2019 Letter from Trenton City Clerk to Edward
September 23, 2016, Defendant Miles entered the business,
announced that it was closed, and ordered the staff and
customers to exit or be arrested. (Id. ¶ 101).
This was the first time Forchion learned of the license
revocation. (Id.). Three days later, Forchion spoke
to Defendant Kachmar (the Trenton City Clerk) who admitted
that "he made a mistake" and reinstated the
license. (Id. ¶ 103). Plaintiffs contend that
this incident caused significant financial losses because
customers stopped patronizing the business. (Id.
Forchion Secures Dismissal of Several TPD Issued
total, Defendants issued thirteen citations against Forchion
for violating the Ordinance, as well as issued ten additional
citations. (Id. ¶¶ 106, 109). Defendant
Wilson oversaw the prosecutions of the Ordinance violations.
(Id. ¶ 25).
February 6, 2018, the Trenton Municipal Court dismissed all
thirteen citations against Forchion relating to violations of
the Ordinance. (Id. ¶ 105). On June 20, 2018,
the remaining ten municipal violations against Forchion were
summarily dismissed. (Id. ¶ 108). Plaintiff
contends that the officers had no probable cause to issue any
of the citations against him and that they knew they lacked
probable cause. (Id. ¶¶ 106-107, 109-110).
He contends the citations were issued "to intimidate,
harass, exact revenge, silence Mr. Forchion's voice,
revoke his business license, and shut down his
business." (Id. ¶ 111).
Forchion Files Another Suit and is Arrested for Witness
initiated another civil action, alleging a conspiracy to
entrap him in connection with the April 27, 2016 search of
his property. Forchion named a confidential police informant
as a defendant in that action. (Id. ¶ 113).
Because he named and contacted the informant's household,
Forchion was arrested and charged with two counts of witness
tampering. (Id. ¶ 114). Forchion was denied
bail and detained for over four hundred days. (Id.
¶ 115). A jury ultimately acquitted him of the witness
tampering charges. (Id. ¶ 116). Forchion claims
there was no probable cause to support the witness tampering
charges and that the purpose of the charges were to
intimidate and harass him, exact revenge for filing a
lawsuit, shut down his business, and silence him.
(Id. ¶¶ 117, 121).
motion to dismiss for failure to state a claim pursuant to
Federal Rule Civil Procedure 12(b)(6), the Court is required
to accept as true all allegations in the TCAC and all
reasonable inferences that can be drawn therefrom, and to
view them in the light most favorable to the non-moving
party. See Reed v. Cameron, 380 Fed.Appx. 160, 162
(3d Cir. 2010) (citation omitted). "To survive a motion
to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief
that is plausible on its face.'" Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ail.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While a
court will accept well-pleaded allegations as true for the
purposes of these motions, it will not accept bald
assertions, unsupported conclusions, unwarranted inferences,
or sweeping legal conclusions cast in the form of factual
allegations. Iqbal, 556 U.S. at 678-79; see also
Morse v. Lower Merion School District, 132 F.3d 902, 906
(3d Cir. 1997). A complaint should be dismissed only if the
well-pleaded alleged facts, taken as true, fail to state a
claim. See In re Warfarin Sodium, 214 F.3d 395,
397-98 (3d Cir. 2000).
court may consider certain narrowly defined types of material
without converting the motion to dismiss" into a motion
for summary judgment, In re Rockefeller Ctr. Props., Inc.
Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999), including
documents "integral to or explicitly relied
upon in the complaint." In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)
(emphasis in original) (quoting Shaw v. Digital Equip.
Corp., 82 F.3d 1194, 1220 (1st Cir. 1996)). Such
material includes "the complaint, exhibits attached to
the complaint, matters of public record, as well as
undisputedly authentic documents if the complainant's
claims are based upon these documents." Buck v.
Hampton Twp. Sch. Dist., 452 F.3d 256 260 (3d Cir.
2006). The Court rendered a decision with respect to which
documents it would consider in two memoranda, which were
filed on the docket in this action on January 23, 2019, and
February 7, 2019. (ECF Nos. 140, 147).
action, Plaintiffs assert that a variety of state actors
infringed upon their constitutional rights. As such,
Plaintiffs bring several causes of action under 42 U.S.C.
§ 1983. "Section 1983 imposes civil liability upon
any person who, acting under the color of state law, deprives
another individual of any rights, privileges, or immunities
secured by the Constitution or laws of the United
States." Shuman v. Penn Manor Sch. Dist, 422
F.3d 141, 146 (3d Cir. 2005). Separately, Plaintiffs also
bring several tort claims against state actors, as well as
private parties. The Court will first discuss the claims
brought under § 1983, which will logically begin with an
analysis of which, if any, Defendants are entitled to
immunity from suit, and thereafter examine Plaintiffs'
contend that Defendants Onofri, Wilson, Haumann, Boyle, and
Katz are entitled to absolute prosecutorial immunity.
"Most public officials are entitled only to qualified
immunity" in 42 U.S.C. § 1983 actions. Yarns v.
Cnty. of Delaware, 465 F.3d 129, 135 (3d Cir. 2006).
State prosecutors, however, "are absolutely immune from
liability under § 1983 for actions performed in a
quasi-judicial role." Light v. Haws, 472 F.3d
74, 77 (3d Cir. 2007); see also Imbler v. Pachtman,
424 U.S. 409, 427, 431 (1976). This immunity applies to
"activity taken while in court, such as the presentation
of evidence or legal argument, as well as selected
out-of-court behavior 'intimately associated with the
judicial phases' of litigation." Kulwicki v.
Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992). The immunity
does not extend to administrative or investigatory duties or
to duties that "do not relate to an advocate's
preparation for the initiation of a prosecution or for
judicial proceedings." Buckley v. Fitzsimmons,
509 U.S. 259, 273 (1993). To illustrate these principles, the
Third Circuit has held that "a prosecutor seeking a . .
. warrant is performing 'the preparation necessary to
present a case' and such preparation is encompassed
within the prosecutor's advocacy function," and thus
such actions are entitled to absolute immunity. See
Schrob v. Castterson, 948 F.2d 1402 (3d Cir. 1991). It
is the prosecutor's burden to prove "she was
functioning as the state's 'advocate' while
engaging in the alleged conduct that gives rise to the
constitutional violation." Yarns, 465 F.3d at
Wilson was the Chief Municipal Prosecutor at the City of
Trenton Department of Law. (TCAC § 25). Plaintiffs
allege that on two separate occasions, she "ensured and
oversaw" thirteen and ten municipal cases, respectively,
against Forchion despite lacking probable cause to do so.
(Id. §§ 107, 110, 111, 144, 148, 190).
Plaintiffs' claims against Defendant Wilson purportedly
stem from Plaintiffs' contention that there was not
probable cause to prosecute the cases in municipal court, and
the purpose of initiating those proceedings was to
"harass and intimidate Mr. Forchion, silence his voice
in the community, strip him of his business license, shut
down his business," inter alia. (See Id. §
190). The Court finds, however, that under the facts and
circumstances alleged in the TCAC, Defendant Wilson is immune
from suit because it appears that she was acting in a
prosecutorial function in a overseeing the prosecutions
alleged. See Duffy v. Freed, 452 Fed.Appx.
200, 202 (3d Cir. 2011). Thus, all claims, or counts ten,
eleven, and thirty, are dismissed as interposed against
Defendants Onofri, Boyle, and Katz
to the TCAC, Defendant Onofri was the lead prosecutor who
prosecuted the 2017 witness tampering charges against
Forchion. (TCAC § 22, 115). Defendant Onofri allegedly
supervised Defendants Boyle and Katz in connection with the
witness tampering case. (Id. § 22). Plaintiffs
allege that Defendants Onofri, Boyle, and Katz knew there was
no legitimate probable cause for the presentment of the
witness tampering charges to the grand jury, nor the
prosecution of those charges, and were bought "out of a
retaliatory animus." (See Id. §§ 119,
120, 144, 148, 191). Absolute immunity extends to "any
hearing before a tribunal which performed a judicial
function." Burns v. Reed, 500 U.S. 478, 490
(1991); see also Allen v. Thompson, 815 F.2d 1433
(11th Cir. 1987). Here, the allegations in the TCAC relate
solely to these Defendants' conduct in prosecuting the
2017 witness tampering case against Forchion. Under these
circumstances, the Court is satisfied that absolute
prosecutorial immunity extends to the allegations in the TCAC
with respect to Defendants Onofri, Boyle, and Katz. Thus, all
claims, or counts ten, eleven, and thirty, are dismissed as
interposed against Defendants Onofri, Boyle, and Katz.
Haumann was an assistant prosecutor and the Chief of
Forfeiture at the Mercer County Prosecutor's Office.
(TCAC §§ 19, 69). Plaintiffs allege that Defendant
Haumann failed to notify Forchion that forfeiture proceedings
would not be take taken against Forchion's van, which, as
discussed above, was seized by the police. (See Id.
§ 155). Plaintiffs also allege that Defendant Haumann
allegedly failed to send notification to Forchion that his
van was deemed abandoned. (Id.). As a result, the
van was later destroyed. (Id.). Because Defendant
Haumann allegedly failed to provide Forchion notice or an
opportunity to be heard, Forchion asserts that he was
permanently deprived of his property interest in the van.
(Id.). Similarly, Plaintiffs allege that Defendant
Haumann failed to notify Forchion that forfeiture proceedings
would not be taken against Forchion's delivery car, which
was also seized by the TPD. (Id. § 163). As a
result, the delivery car remained in Mercer County custody
for approximately two years, which allegedly deprived
Forchion of his property interest in the vehicle.
decision whether to initiate forfeiture proceedings, is
covered by absolute prosecutorial immunity. Schrob,
948 F.2d at 1419. However, a prosecutor's management of
seized property after forfeiture proceedings or once the
decision has been made not to initiate forfeiture is entitled
only to qualified immunity. Id. at 1419. That is,
management of seized property is only covered by qualified
immunity because it is "not directly related to the
judicial process" but involves "acting in an
administrative role." Id.; see also Coleman v.
Turpen, 697 F.2d 1341, 1346 (10th Cir. 1982). The Third
Circuit has consistently afforded prosecutors who managed
seized assets only qualified immunity. See, e.g., Wrench
Transp. Sys. v. Bradley, 212 Fed.Appx. 92, 99-100 (3d
Cir. 2006) (prosecutors who delayed return of seized truck
until plaintiff released them from liability entitled to at
best qualified immunity); Reitz v. County of Bucks,
125 F.3d 139, 147 (3d Cir. 1997). Therefore, Plaintiffs'
allegations, which are taken as true for purposes of these
motions, including that Defendant Haumann intentionally
failed to mail Forchion notice, relates to an administrative
duty that is not entitled to absolute immunity.
reasons stated in this section, all claims against Defendants
Onofri, Wilson, Boyle, and Katz are dismissed on the basis of
absolute immunity. However, the Court will not dismiss all
claims against Haumann on absolute immunity grounds; the
claims interposed against him are analyzed below.
procedural difference between absolute and qualified immunity
is significant. Absolute immunity defeats a lawsuit at the
outset, while an official with qualified immunity must
establish that 'their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.'"
Schrob, 948 F.2d at 1407 n.5. "Qualified
immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) violated
a statutory or constitutional right, and (2) that the right
was 'clearly established' at the time of the
challenged conduct.'" Ashcroft v. Al-Kidd, 563
U.S. 731, 735 (2011). "[A]ll but the plainly incompetent
or those who knowingly violate the law" are protected by
qualified immunity. Borrell v. Bloomsburg Univ., 870
F.3d 154, 162 (3d Cir. 2017). Qualified immunity may apply to
prosecutors who are not otherwise entitled to absolute
immunity. See Hof v. Janci, No. CV 17-295, 2018 WL
6318381, at *5 (D.N.J. Dec. 3, 2018)
each remaining Defendant, who is state actor, is entitled to
qualified immunity requires an analysis unique to each
individual count. The Court will therefore address each
Defendants' entitlement to qualified immunity with
respect to each claim, where applicable, below.
"Failure to Train" Monell
Claim Against the City of Trenton
count 12, Plaintiffs allege that Defendant Parrey failed to
"properly train, supervise, or discipline police
officers in various areas." (TCAC ¶ 151). As a
result of Defendant Parrey's alleged failure to train,
Plaintiffs contend that Defendant City of Trenton
"violated Mr. Forchion's rights with deliberate
well established that "a local government may not be
sued under § 1983 for an injury inflicted solely by its
employees or agents." Monell, 436 U.S. at 694.
"Plaintiffs who seek to impose liability on local
governments under § 1983 must prove that 'action
pursuant to official municipal policy' caused their
injury." Connick v. Thompson, 563 U.S. 51, 60
(2011) (citation omitted). "In limited circumstances, a
local government's decision not to train certain
employees about their legal duty to avoid violating
citizens' rights may rise to the level of an official
government policy for purposes of § 1983."
Id. But, to satisfy § 1983, a municipality can
only be held liable where it fails to train such employees
with "deliberate indifference to the rights of persons
with whom the police come into contact." City of
Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989).
"Only then 'can such a shortcoming be properly
thought of as a city 'policy or custom' that is
actionable under § 1983." Connick, 563
U.S. at 61. "A plaintiff may show deliberate
indifference in a failure-to-train case in one of two ways:
(1) through a pattern of similar constitutional violations
providing a municipal actor with notice of the need for
training; and (2) demonstrating 'single incident'
liability for circumstances in which training is obviously
necessary to avoid constitutional violations."
Khalil v. City of Paters on, No. 18-3241 (JLL), 2018
WL 6168191, at *4 (D.N.J. Nov. 26, 2018).
Plaintiffs fail to adequately allege the City of
Trenton's "deliberate indifference" with
respect to its purported "failure-to-train."
Specifically, Plaintiffs fail to plausibly allege: (1) that
the City of Trenton had any relevant policies or customs
specifically regarding any of the practices at issue; (2)
that the City was on notice of a pattern of similar
constitutional violations; or (3) that the City's need to
train officers was '"so obvious,' that failure
to do so could properly be characterized as 'deliberate
indifference' to constitutional rights,' even without
a pattern of previous violations." Khalil, 2018
WL 6168191, at *6. In short, the Court finds Plaintiffs'
allegation that the "City of Trenton has violated Mr.
Forchion's rights with deliberate indifference, and it is
liable to Mr. Forchion for all permissible damages" ...