Love v. City of N.B.

• Decision Date: 16 January 2018
• Docket Number: Civil Action No. 16-2586 (FLW)
• Parties: LEMONT LOVE, Plaintiff, v. CITY OF NEW BRUNSWICK, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

LEMONT LOVE, Plaintiff,
v.
CITY OF NEW BRUNSWICK, et al., Defendants.

Civil Action No. 16-2586 (FLW)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

January 16, 2018

OPINION

WOLFSON, UNITED STATES DISRICT JUDGE:

I. INTRODUCTION

This action arises from an incident on April 28, 2009, in which police officers from the New Brunswick Police Department allegedly assaulted Plaintiff, searched his car and his person, and arrested him without probable cause. Plaintiff was subsequently convicted of drug offenses in connection with his arrest. Plaintiff, who is African American, alleges that he learned in 2016 that the New Brunswick Police Department engaged in selective enforcement based on race during the relevant time period and that his arrest and prosecution resulted from racial profiling and selective enforcement. In his fifty-four page Complaint, Plaintiff has sued numerous entities and individuals¹ asserting several theories of liability, and brings claims for relief pursuant to 42

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U.S.C. §§ 1983 and 1985, as well as under the federal Racketeer Influenced and Corrupt Organizations Act ("RICO") and state law. The Court previously granted Plaintiff's application to proceed in forma pauperis. For the reasons explained in this Opinion, the federal claims are dismissed without prejudice pursuant to 28 U.S.C. 1915(e)(2)(B), and the Court declines supplemental jurisdiction over any remaining state law claims at this time.

II. FACTUAL BACKGROUND

On April 28, 2009, Plaintiff was sitting in a car on a street in New Brunswick waiting to pick up his friends from a house party. (ECF No. 1, Complaint at 14.) In his rearview mirror, he noticed his friend Lisa walking down the street as a car slowly drove next to her. When the car passed Plaintiff's car, he realized it was a police car. Lisa opened Plaintiff's passenger-side door and told him "Let's go." She went to the driver-side door to help Plaintiff exit the car. Plaintiff and Lisa walked arm-in-arm to the house party. The police then shined a spotlight on the pair, and a voice commanded them: "hey you, stop right there." Defendant Calogero ran up behind Plaintiff and "for no reason grabbed him and slammed him on the trunk of one of the cars that was parked on the street." (Id. at 15.) Defendants Pappas, Daughton, and Piper surrounded Plaintiff and Defendant Calogero began searching Plaintiff's pockets. Plaintiff told the officers he had done nothing wrong and would be filing a lawsuit against them for harassing him and exacerbating his preexisting injuries.

An unidentified officer also searched Plaintiff's car without a warrant or consent and discovered a newspaper article that documented a fatal car accident involving Plaintiff. The officer told Defendant Calogero that Plaintiff was really injured, and at that point Calogero arrested Plaintiff "for no reason" and took him to the New Brunswick Police Station.

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Plaintiff learned from his lawyer that Plaintiff had been arrested for drug possession. (Id. at 16.) Plaintiff denied having drugs; however, Plaintiff's attorney "sold [him] out" and Plaintiff was sentenced to 10 years in prison. The case is currently on appeal.²

In 2012, Plaintiff filed an internal affairs complaint against Defendants' Calogero, Pappas, and Daughton. The complaint was handled by Defendant Dominguez, who "rubberstamped" the misconduct of his subordinates. (Id.)

In January 2016, Plaintiff was watching the New Jersey News Channel in his cell, and learned that a survey done by the American Civil Liberties Union ("ACLU") had found selective policing in four cities, including New Brunswick, where the April 28, 2009 incident occurred. Plaintiff wrote to the Attorney General requesting "raw data" on this issue, but the Attorney General would not give him any information. On March 6, 2016, the ACLU sent Plaintiff a letter with "all the information he needed." The target dates for the ACLU survey were 2008-2012. Plaintiff immediately submitted a tort claim. (Id.)

Plaintiff, who is African American, alleges that he was a victim of selective policing during the April 28, 2009 incident and that he was targeted because of his race and not because he had committed a crime. Plaintiff alleges that Defendant Piper, one of the officers on the scene, saw Plaintiff sitting in his car and called 911 because Plaintiff was black. (Id. at 17.)

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Defendant further alleges that the dispatch operators, Defendants Santana and Tkacs, received the call from Defendant Piper and dispatched Defendant Officers Calogero, Pappas, and Daughton to racially profile Plaintiff despite the fact that Defendant Piper did not accuse Plaintiff of committing any crime. (Id. at 17-18.) Plaintiff alleges that these Defendants, together with Defendants Calogero and Pappas conspired to racially profile Plaintiff. (See Compl. at 17-20.)

Plaintiff further alleges that the ACLU study shows that the New Brunswick Police Department had a policy of targeting racial minorities while not enforcing the law against non-racial minorities, i.e., whites. (Id. at 17.) Plaintiff alleges that Defendants Rowe, Dominquez, Miller, and Caputo were supervisors during the relevant period and were aware of the unlawful conduct of their subordinates through numerous complaints and the selective policing policy but failed to take corrective action. (Id. at 20.)

Plaintiff also alleges that Defendants Piper, Santana, Tkacs, Calogero, Daughton, Pappas, Rowe, Dominguez, Miller, and Caputo also violated Plaintiff's right to "access to the courts" by failing to inform the prosecutor of the selective policing evidence and their own misconduct, which would have allowed Plaintiff to mount a defense to the state's accusations. (Id. at 21.)

Plaintiff further alleges that Defendants D'Elia and Zanetakos, who are identified as assistant prosecutors in Middlesex County, also conspired with the other Defendants to selectively enforce the laws based on Plaintiff's race and were also aware of the selective policing policy in New Brunswick. (Id.) These Defendants prosecuted Plaintiff to cover up the misconduct of the other Defendants and likewise withheld exculpatory evidence of selective policing when the initiated Plaintiff's prosecution, denying him access to the courts. (Id.) Plaintiff further alleges that Defendants Carey and Kuberiet, as the supervisors of Defendants D'Elia and Zanetakos, failed to properly supervise their subordinates and created an environment

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where prosecutors felt free to violate the rights of racial minorities. Defendants Lougy, Hoffman, Carey, Kuberiet, D'Elia and Zanetakos also allegedly violated Plaintiff's right to access to the courts by frustrating his efforts to get post-conviction relief by suppressing the racial profiling evidence. Plaintiff alleges that all the individual Defendants have violated his right to a civil remedy though § 1983 because he is unable to prove malicious prosecution without proving favorable termination, as the criminal proceeding resulted in his conviction and did not terminate in his favor. (Id. at 23-24.)

Plaintiff also alleges that entity Defendants City of New Brunswick, Middlesex County, Middlesex County Prosecutor's Office, New Jersey Attorney General's Office and individual Defendants Lougy, Hoffman, Kaplan, and Carey failed to supervise, train, and discipline the members of the New Brunswick police department and were aware of the policy of selective policing and encouraged it and/or acquiesced to it and were aware of the Officer Defendants' propensity to violate the constitutional rights of citizens of New Brunswick. (Id. at 24-27.)

Plaintiff alleges that the misconduct described above violated his constitutional rights under 42 U.S.C. §§ 1983 and 1985. (Id. at 44-47.) In addition to claims under 42 U.S.C. §§ 1983 and 1985, Plaintiff alleges that all Defendants were part of a RICO conspiracy to violate Plaintiff's rights, and the rights of other racial minorities, through their selective enforcement misconduct and by "fraudulently obtaining money from [racial minorities] and sending them to prison." (Id. at 36-44; 47-51.) With respect to his RICO allegations, Plaintiff alleges that the Defendant Calogero stole $423.00 dollars from him at the time of his arrest, and that he and other Defendants engaged in various acts of extortion, mail fraud, bank fraud, wire fraud, and obstruction of justice during 2009 in connection with Plaintiff's arrest and prosecution. He

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further alleges that Plaintiff's prosecution resulted in the termination of Plaintiff's business/employment relationship. (Id. at 47-51.)

III. STANDARD OF REVIEW

Under the PLRA, district courts must review complaints in those civil actions in which a person is proceeding in forma pauperis, See 28 U.S.C. § 1915(e)(2)(B). The PLRA directs district courts to sua sponte dismiss any claim that is frivolous, is malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id. "The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)." Schreane v. Seana, 506 F. App'x 120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App'x 230, 232 (3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c)(1)); Courteau v. United States, 287 F. App'x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).

Here, Plaintiff's Complaint is subject to screening under 28 U.S.C. § 1915(e)(2)(B). When reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), 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). All reasonable inferences must be made in the plaintiff's favor. See In...