Ramirez v. City of Trenton

GLORIA RAMIREZ, Plaintiff, v. CITY OF TRENTON, et al. Defendants.

Civil Action No. 21-cv-10283 (FLW)

United States District Court, D. New Jersey

April 29, 2022

NOT FOR PUBLICATON

OPINION

Freda L. Wolfson, U.S. Chief District Judge

Plaintiff Gloria Ramirez (“Ramirez” or “Plaintiff”), a resident of Trenton, New Jersey filed the instant suit arising out of injuries she sustained during the arrest of her son at her home. In Plaintiff's Amended Complaint, the following individuals are named in their individual and official capacities: Tara Dzurkoc Detective Anthony Pompeo; Detective Jeremy Stewart; Detective Barry Volkert; Sheilah Coley; John Does 1-10; and John Does 11-20.^[1] (ECF No. 4.) Presently before the Court is a motion by Defendants Detectives Anthony Pompeo and Barry Volkert^[2] (collectively the “Moving Defendants”) to dismiss the claims asserted against them for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Moving Defendants' Motion to Dismiss (“Defs.' Mot.”).) Plaintiff opposes the motion. (Plaintiff's Opposition to Moving Defendants' Motion to Dismiss (“Pl.'s Opp'n.”).) Having considered the parties' submissions, and for the following reasons, the Moving Defendants' motion to dismiss is GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Court assumes the facts set forth in the Amended Complaint to be true for the purposes of the present motion. On January 7, 2020, defendants Tara Dzurkoc, Anthony Pompeo, Jeremy Stewart, Barry Volkert, and/or John Does 1-10 arrived at Ms. Ramirez's house to arrest her son as part of a U.S. Marshal's New York/New Jersey Regional Fugitive Task Force (NY/NJ RFTF) operation. (ECF No. 4, p. 4.) After removing Plaintiff's son from the residence, the officers allegedly began to assault Plaintiff's daughter. (Id.) Thereafter, Ms. Ramirez began recording defendant officers with her cell phone. (Id. at p. 5.) Upon seeing Plaintiff recording, defendants Dzurkoc, Pompeo, Stewart, Volkert, and/or John Does 1-10, collectively, allegedly “proceeded to punch and kick Plaintiff numerous times.” (Id.) As alleged, Defendant Dzurkoc punched Plaintiff several times with a closed fist in her face, knocking out her two front teeth. (Id.) In addition to losing her upper teeth, Plaintiff allegedly suffered various other injuries to her head, neck and back, as well as her right leg as a result of defendants' actions. (Id.) Plaintiff was charged with aggravated assault on a law enforcement officer, resisting arrest, and obstructing the administration of laws, but the charges were resolved and eventually dismissed following Plaintiff's acceptance into a Pretrial Intervention Program without a plea. (Id.)

On April 27, 2021, Plaintiff initially filed a complaint against Sheilah Coley, Tara Dzurkoc, and the City of Trenton. (ECF No. 1.) On May 11, 2021, Plaintiff filed an Amended Complaint, adding Moving Defendants, Jeremy Stewart, and John Does 1-20. (ECF No. 4.) In Plaintiff's Amended Complaint, she brings claims under 42 U.S.C. §1983 and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 413 U.S. 388 (1971), for excessive force (Counts I and II); failure to intervene (Counts III and IV); First Amendment retaliation (Counts V and VI); fabrication of evidence (Counts VII and VIII); failure to supervise (Counts IX and X); and inadequate training (Count XI). Further, Plaintiff maintains that Moving Defendants violated the New Jersey Civil Rights Act (“NJCRA”) by using excessive force and failing to intervene in the use of such force (Count XII) and committed common law state torts against her (Counts XIII and XIV). Specifically, Plaintiff alleges that Moving Defendants committed assault and battery on, and were negligent in their treatment of, Plaintiff.

In the instant matter, Moving Defendants seek to dismiss these claims.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a claim “for failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). On a motion to dismiss for failure to state a claim, the moving party “bears the burden of showing that no claim has been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)); Haney v. USA Gymnastics, Inc., No. 21-07213, 2022 WL 909871, at *2 (D.N.J. Mar. 29, 2022). When reviewing a motion to dismiss for failure to state a claim, courts first separate the factual and legal elements of the claims, and accept all of the well-pleaded facts as true. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). While Federal Rule of Civil Procedure 8(a)(2) does not require that a complaint contain detailed factual allegations, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Thus, to survive a Rule 12(b)(6) motion to dismiss, the complaint must contain sufficient factual allegations to raise a plaintiff's right to relief above the speculative level, so that a claim “is plausible on its face.” Id. at 570; Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (citation omitted). “A claim has facial plausibility 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). All reasonable inferences must be made in the plaintiff's favor. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010).

III. DISCUSSION

A. Federal Actors

Plaintiff brings claims for excessive force; failure to intervene; First Amendment retaliation; fabrication of evidence; failure to supervise; and inadequate training under section 1983 and Bivens, as well as claims under the NJCRA and New Jersey common law. Moving Defendants argue that they are State actors as they are employees of the New Jersey State Police and the New Jersey State Parole Board, respectively. (See Defs.' Mot., pp. 3-4; Pompeo Reply, p. 3.) Plaintiff alleges that Moving Defendants acted at all times as agents, servants and/or employees of the State of New Jersey and/or the U.S. Marshal's New York/New Jersey Regional Fugitive Task Force (“NY/NJ RFTF”). (ECF No. 4, pp. 2-3.) More importantly, Plaintiff avers that on January 7, 2020, Moving Defendants arrived at Plaintiff's home to arrest her son as part of a U.S. Marshal's NY/NJ RFTF operation. (Id. at p. 4.) The Court has not identified a single case permitting both section 1983 and Bivens claims against the same defendants acting as part of a federal task force operation during an isolated incident. Rather, the District of New Jersey has classified deputized U.S. Marshals employed by state agencies as federal actors. See Martin v. Unknown U.S. Marshals, 965 F.Supp.2d 502, 512, n. 2 (D.N.J. 2013). Martin involved a suit brought by relatives of an arrestee who died from a gunshot wound within minutes of deputized United States Marshals' arrival at his residence. In Martin, the court referred to a category of defendants as “Federal Defendants” or “Marshals” because they had been deputized as members of the NY/NJ RFTF even though none of the defendants was a USMS employee. Id. Indeed, two of the defendants were employed by the New Jersey State Police. Id. The District of New Jersey explained that “although they each worked for state and local law enforcement agencies, [the Marshals] are to be considered federal agents acting under federal law during the incident in question.” Id. at 537. The Third Circuit affirmed the district court's opinion. See Est. of Martin v. U.S. Marshals Serv. Agents, 649 Fed.Appx. 239 (3d Cir. 2016).

Other courts have also treated state law enforcement officers designated as federal task force members as federal agents acting under federal law. See, e.g., Guerrero v. Scarazzini, 274 Fed.Appx. 11, 12 n.1 (2d Cir. 2008) (holding that local officers “assigned to an FBI Joint Organized Crime and Drug Enforcement Task Force” were “federally deputized for their Task Force work, ” and thus the claim was “properly brought” as a Bivens action); Majors v. City of Clarksville, 113 Fed.Appx. 659, 659-60 (6th Cir. 2004) (construing section 1983 claim against “police officers who were acting as deputized Task Force Agents by the [DEA]” as a Bivens claim “in reality”); Texas v. Kleinert, 143 F.Supp.3d 551, 562 (W.D. Tex. 2015) (“Courts have consistently treated local law-enforcement agents deputized as federal agents and acting as part of a federal task force as federal agents.”); Pike v. United States, 868 F.Supp.2d 667, 670, 677-678 (M.D. Tenn. 2012) (concluding that § 1983 claims against “state and local law enforcement officers who served as members of the Fugitive Task Force . . . [of] a program coordinated by the United States Marshal's [sic] Service” were “plainly Bivens claims, not § 1983 claims”); Ivey v. Lyman, No. 902CV470, 2005 WL 1397134, at *2 (N.D.N.Y. June 1, 2005) (“[D]efendant is employed by the Albany Police Department, and thus would generally be acting under color of state law in his capacity as a police officer. However, because he was working with the DEA and assigned to the DETF, he is considered to be acting as a federal agent.”); cf. Challenger v. Bassolino, No. 18-1524, 2019 WL 625803, at *3 (D.N.J. Feb. 14, 2019) (finding that claims against member of the United States Marshal's Office would not be brought under section 1983, but pursuant to Bivens).

Consequently based on Plaintiff's...