Conserve v. City of Orange Twp.
| Decision Date | 09 August 2021 |
| Docket Number | Civil Action 21-872 (SDW)(ESK) |
| Parties | MARIE CONSERVE, et al., Plaintiffs, v. CITY OF ORANGE TOWNSHIP, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Before this Court are: 1) Defendants Rudolph Simmonds, Milton Mendoza, and Richard Adrianzen's[1] Motion to Dismiss; 2) Defendant Denise Banks' Partial Motion to Dismiss and Motion to Strike; and 3) Defendants Nicholas Reda, Edward Hall, Kevin Demasi, Keenan Rogers, and Hector Rosado's Partial Motion to Dismiss and Motion to Strike Plaintiff Marie Conserve's (“Plaintiff”)[2] Corrected Complaint (“Complaint”) pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) and (f). Jurisdiction is proper pursuant to 28 U.S.C. § 1331 and § 1367(a). Venue is proper pursuant to 28 U.S.C. § 1391. This opinion is issued without oral argument pursuant to Rule 78. For the reasons stated herein, the motions are GRANTED in part and DENIED in part.
Plaintiff is a resident of Orange, New Jersey, where she lives with her significant other Louis Dessources (“Dessources”) and her minor children. (D.E. 2 at 6 ¶¶ 1-2, at 8 ¶ 8, at 10-11 ¶¶ 19-25, at 13 ¶ 32.) Defendants Rudolph Simmonds (“Simmonds”), Milton Mendoza (“Mendoza”), Richard Adrianzen (“Adrianzen”), Denise Banks (“Banks”), Nicholas Reda (“Reda”) Edward Hall (“Hall”), Kevin Demasi (“Demasi”), Keenan Rogers (“Rogers”) and Hector Rosado (“Rosado”) (collectively, “Officer Defendants”) are officers employed by the Orange Police Department. (Id. at 3 ¶ 2.)[4]
On September 8, 2019 (“September 8th”), Plaintiff alleges that Simmonds, Mendoza, and Adrianzen “trespass[ed] on her premises . . . and physically beat, attack[ed], punch[ed], assault[ed] [and] batter[ed]” Dessources, causing her and her children “severe emotional distress.” (Id. at 6 ¶ 2.) The Complaint contains no other factual allegations regarding these three defendants.
On June 24, 2020 (“June 24th”), at approximately 10:40 p.m., when responding to a noise complaint in her neighborhood, Plaintiff alleges that Officers Reda, Rosado, Banks, Hall, Demasi and Rogers[5] intruded on her property “without permission” and attacked and pulled a gun on Dessources in the presence of Plaintiff and her children, causing them “severe emotional distress.” (Id. at 7 ¶¶ 4-5, at 8 ¶¶ 8-14, at 10 ¶¶ 21, 23.) Plaintiff, who was pregnant with H.D. at that time, also alleges that Hall and Rogers pushed her to the ground and that Hall, Banks, and Rosado “maliciously” and/or recklessly pepper sprayed her and others. (Id. at 7 ¶ 5, at 10 ¶ 21.) Plaintiff was transported to a local hospital for treatment for pelvic pressure and pain in her abdomen, tailbone, and hip. (Id. at 9 ¶ 15.)
On June 26, 2020, Plaintiff alleges that Rosado “and the same crew came back for more harassment, ” blocking the street in front of Plaintiff's residence “for no reasons [sic] at all.” (Id. at 11 ¶ 24, at 7 ¶ 6.) On July 4, 2020, “[t]wo Orange Police vehicles” allegedly parked in front of Plaintiff's home with their lights off but left when “an attempt to video them was made.” (Id. at 8 ¶ 7, at 11 ¶ 24.)
On January 19, 2021, Plaintiff filed suit in this Court alleging that Officer Defendants and others violated her and her children's constitutional, statutory, and common law rights. (See generally D.E. 1.) Plaintiff subsequently corrected her initial pleading to remove the names of her minor children. (D.E. 2.)[6] The instant motions were filed on May 14 and 15, 2021, and all briefing was timely filed. (D.E. 18-20, 24-26, 28-30.)
An adequate complaint must be “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This Rule Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted); see also Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) ().
In considering a Motion to Dismiss under Rule 12(b)(6), the Court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips, 515 F.3d at 231 (external citation omitted). However, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) (discussing the Iqbal standard). Determining whether the allegations in a complaint are “plausible” is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. If the “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” the complaint should be dismissed for failing to “show[] that the pleader is entitled to relief” as required by Rule 8(a)(2). Id.
Rule 12(f) permits a court to strike portions of pleadings that are “redundant, ” “immaterial, ” “impertinent, ” or “scandalous.” R. 12(f). “The purpose of a motion to strike is to clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters.” Synthes, Inc. v. Emerge Med., Inc., Civ. No. 11-1566, 2012 WL 4473228, at * 3 (E.D. Pa. Sept. 28, 2012) (internal citation omitted).
Defendant Banks, Reda, Hall, Demasi, Rogers and Rosado all move to strike portions of Plaintiff's Complaint for redundancy or impropriety. (See D.E. 19 at 2-4; D.E. 20-8 at 14.) Given the convoluted nature of the Complaint, this Court will address these motions before turning to Officer Defendants' motions to dismiss.
First, as to Count One, Plaintiff's claims brought pursuant to the New Jersey Constitution and 42 U.S.C. §§ 1981, 1982, 1983, 1984, 1985, 1986 and 1988 shall be stricken.[7] With the exception of Plaintiff's § 1984 claim, all of these claims are duplicative of the claims contained in Count Two. The § 1984 claim shall also be stricken, as the section contains no text and, therefore, cannot be the basis for a cause of action. In addition, the claim for assault and battery will be stricken as duplicative of Count Three and the claim of excessive force stricken as duplicative of Count Five.
As to Count Two, Plaintiff's claim pursuant to § 1981 is stricken because it is subsumed by Plaintiff's § 1983 claim. See, e.g., McGovern v. City of Phila., 554 F.3d 114, 120 (3d Cir. 2009) (). In addition, because § 1988 permits the recovery of attorney's fees in certain federal lawsuits, it is a form of relief, not an independent cause of action, and it will also be stricken. See Russo v. City of Atl. City, Civ. No. 13-3911, 2016 WL 1463845, at *9 (D.N.J. Apr. 14, 2016).
Count Six shall also be stricken as duplicative of Count Two. (Compare D.E. 2 Count Six (raising claims pursuant to §§ 1981, 1983, 1985, 1986, 1988) with Count Two (raising same).) Count Seven shall be stricken as duplicative of Counts Four and Five. (Compare D.E. 2 Count Seven (raising claims brought pursuant to the New Jersey Civil Rights Act (“NJCRA”), 10:6-1 et seq. and the New Jersey Law Against Discrimination, (“NJLAD”), N.J.S.A. 10:5-12(f), 10:1-2, 10:5-4) with Counts Four and Five (raising claims under the same statutes).) Count Eight shall also be stricken as duplicative of Count Four. (Compare D.E. 2 Count Eight and Four (raising claims under the NJLAD).)
Therefore, moving forward, Plaintiff's Complaint consists of the following claims:
As an initial matter, to the extent Plaintiff raises tort claims against Officer Defendants, she is required to comply with the notice requirements of the New Jersey Tort Claims Act (“TCA”), N.J.S.A. 59:8-1, et seq. The TCA allows individuals to bring tort claims against public entities, provided that “certain procedures be followed prior to bringing suit.” Tripo v. Robert Wood Johnson Med. Ctr., 845 F.Supp.2d 621, 626 (D.N.J. 2012). As such, parties seeking to sue under the TCA are required “to sign and file a notice of tort claim (a ‘Notice of Claim') with the public entity within 90 days of the accrual of the cause of action.” Id.; see also N.J.S.A. § 59:8-8. A plaintiff is “forever barred from recovering against a public entity or public employee” if they fail to file a Notice of Claim within the time required. N.J.S.A. § 59:8-8. In addition to this initial notice, the TCA permits public entities to require a plaintiff to provide additional specialized information such as medical records, relevant bills, or expenses, although the statute does not contain guidance as to the timing of the filing of this additional information. See N.J.S.A. § 59:8-6. The City of Orange...
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