Callaway v. Small
| Decision Date | 31 March 2022 |
| Docket Number | 1:21-cv-12058 |
| Parties | CRAIG CALLAWAY Plaintiff, v. MARTY SMALL SR., CITY OF ATLANTIC CITY, DEPUTY CHIEF JAMES A. SARKOS, OFFICER KEVIN FRANCIS Defendants. |
| Court | U.S. District Court — District of New Jersey |
This matter concerns Plaintiff Craig Callaway's (“Plaintiff”) third attempt to construe a screaming match between himself and his political rival Marty Small Sr. (“Small”), on the streets of Atlantic City as a violation of Plaintiff's constitutional rights. Defendants Small, City of Atlantic City (“Atlantic City”), Deputy Chief James A Sarkos (“Sarkos”), and Officer Kevin Francis (“Francis”) (collectively “Defendants”) move to dismiss Plaintiff's Second Amended Complaint (“SAC”). [Dkt. 26]. For the reasons set forth below, the Court will grant Defendants' motion with respect to Plaintiff's federal claims (Counts I-VII) and will dismiss the remaining state-law claims for lack of subject-matter jurisdiction.
The following facts are taken from the SAC[1] and a publicly available video clip of the events that gave rise to this lawsuit.[2] Small is the Mayor of Atlantic City, New Jersey. [SAC ¶ 6].
On May 2, 2021, Small and others appeared at a residential neighborhood in Atlantic City to campaign for his reelection as Mayor. [SAC ¶ 14]. Defendant Francis, a police officer with the Atlantic City Police Department, provided personal security to Small as Small campaigned. [SAC ¶ 16]. Plaintiff “came to be lawfully present on the public sidewalk” where Small was campaigning. [SAC ¶ 15].
When Plaintiff came “into view of Mayor Small, a raucous verbal altercation ensued.” [SAC ¶ 18]. While the SAC does not allege who initiated the altercation, video evidence shows Plaintiff and Small screaming at one another and pacing toward and away from one another on a public sidewalk. The SAC alleges that, during this altercation, Small “threaten[ed] violence upon Plaintiff, ” stating “You're gonna see … I'mma [sic] get somebody that's about that life, and let's see what you do, ” [SAC ¶ 27], and “I'm gonna whoop your fucking ass, bitch.” [SAC ¶ 29]. The latter statement is clearly audible in the video. Small also “slapped a cell phone out of the hands of one bystander who had been recording the events.” [SAC ¶ 24]. The video also shows Plaintiff repeatedly calling Small a “child molester protector.”[3] Though Officer Francis was present, he did not intervene in this altercation or arrest Small. [SAC ¶¶ 39, 42-43]. Plaintiff alleges that he told Officer Francis that Small threatened Plaintiff and Officer Francis responded by saying “I know.” [SAC ¶ 38]. Plaintiff alleges that he eventually “ceased his political speech and returned to his car, due to the threats Small made against him.” [SAC ¶ 31].
Plaintiff seeks to hold Defendants liable for Small's conduct. In his initial complaint and the FAC, Plaintiff alleged that Small's conduct violated Plaintiff's Fourth and Fourteenth Amendment rights. [See Dkt. 1, 16]. The Court granted Defendants' motion to dismiss the FAC but granted Plaintiff leave to file another amended complaint due to procedural errors by both parties. [Dkt. 20, 21]. In his SAC, Plaintiff now alleges that Defendants violated his First and Fourteenth Amendment rights, and Counts I-VII seek to recover under 42 U.S.C. § 1983 for violation of these rights. [See Dkt. 25]. Counts VIII-XII allege state-law claims for gross negligence; negligence; assault; the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c); and civil conspiracy, respectively. [See Id.]. Defendants moved to dismiss the SAC. [Dkt. 26].
The Court has subject-matter jurisdiction over Plaintiff's § 1983 claims under 28 U.S.C. §§ 1331 and 1343. The Court has supplemental jurisdiction over Plaintiff's state-law claims under 28 U.S.C. § 1367(a).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A complaint should be dismissed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim. Id. In general, only the allegations in the complaint, matters of public record, orders, and exhibits attached to the complaint, are taken into consideration when deciding a motion to dismiss under Rule 12(b)(6). See Chester Cnty Intermediate Unit v. Pa. Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). It is not necessary for the plaintiff to plead evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). The question before the Court is not whether the plaintiff will ultimately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (3d. Cir. 2007). Instead, the Court simply asks whether the plaintiff has articulated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility[4] 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) (citing Twombly, 550 U.S. at 556). “Where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
The Court need not accept “unsupported conclusions and unwarranted inferences, ” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citation omitted), however, and “[l]egal conclusions made in the guise of factual allegations . . . are given no presumption of truthfulness.” Wyeth v. Ranbaxy Labs., Ltd., 448 F.Supp.2d 607, 609 (D.N.J. 2006) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) . Accord Iqbal, 556 U.S. at 678-80 ().
Further, although “detailed factual allegations” are not necessary, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). See also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).
Thus, a motion to dismiss should be granted unless the plaintiff's factual allegations are “enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true (even if doubtful in fact).” Twombly, 550 U.S. at 556 (internal citations omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘shown'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)
The Court notes at the outset that it is treating Defendants' motion as unopposed. Plaintiff filed his opposition brief on March 18, 2022, eleven days after the Court-ordered deadline of March 7, 2022, without explanation, excuse, or request for an extension. [See Dkt. 28, 30]; see also See L. Civ. R. 7.1(d)(7) ().
This is the latest example in a pattern of failures to comply with deadlines, procedural rules, and Court orders. Plaintiff previously violated Federal Rule of Civil Procedure 15 by filing his FAC without obtaining consent from Defendants or leave from the Court. [Dkt. 21 at 3]. The Court nevertheless treated the FAC as properly filed when considering Defendants' motion to dismiss the FAC. [Id. at 6]. The Court granted Defendants' motion to dismiss the FAC, but ordered that Plaintiff could further amend his complaint in compliance with Local Rule 15.1. [Dkt. 22]. Local Rule 15.1(b)(2) requires a plaintiff to file “form of the amended pleading that shall indicate in what respect(s) it differs from the pleading that it amends, by bracketing or striking through materials to be deleted and underlining materials to be added.” Plaintiff failed to comply with this requirement, which provides an independent and sufficient ground to dismiss the SAC. See Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991) (). The Court nevertheless will address the merits of Plaintiff's SAC.
In Count I, Plaintiff seeks to recover under 42 U.S.C. § 1983[5] alleging that his Fourteenth Amendment right against deprivation of “life, liberty or property … without due process of law” was violated when Officer Francis failed to “intervene and arrest” Small and to prevent Small from infringing upon Plaintiff's First and Fourteenth Amendment rights. [SAC ¶¶ 51-60]. The Court already rejected Plaintiff's Fourteenth Amendment failure to arrest theory as alleged in the FAC, [see Dkt. 21 at 10-13], and Plaintiff has not materially improved that theory here. The Court will therefore grant Defendants' motion to dismiss this theory of liability.
The Court will also grant dismissal on the First Amendment failure to intervene claim. As stated in the Court's FAC opinion, to state a claim for one state actor's failure to intervene...
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