COTTMAN v. FARABELLA

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

BARRY COTTMAN,

1:19-cv-14122-NLH-AMD Plaintiff,

OPINION v.

JODY FARABELLA,

MILLVILLE CHIEF OF POLICE,

P.O. JOSEPH DIXON

172, P.O. ROBERT RUNKLE

160, CITY OF MILLVILLE, NEW

JERSEY,

Defendants.

APPEARANCES:

JUSTIN TERENCE LOUGHRY

LOUGHRY & LINDSAY, LLC

330 MARKET STREET

CAMDEN, NJ 08102

On behalf of Plaintiff

A. MICHAEL BARKER

BARKER, GELFAND & JAMES

LINWOOD GREENE

210 NEW ROAD

SUITE 12

LINWOOD, NJ 08221

On behalf of Defendants Jody Farabella and City of Millville

THOMAS B. REYNOLDS

REYNOLDS & HORN, P.C.

A PROFESSIONAL CORPORATION

750 ROUTE 73 SOUTH

SUITE 202 A

MARLTON, NJ 08053

On behalf of Defendants Joseph Dixon and Robert Runkle HILLMAN, District Judge

This matter concerns Plaintiff’s claims of excessive force and unlawful seizure against two police officers and municipal liability and supervisory liability against the City of Millville and its police chief, Jody Farabella. Plaintiff claims Farabella and the municipality are liable for his injuries because of their failure to properly train the officers and for fostering customs and policies which condoned the use of excessive force. Previously, the Court dismissed Plaintiff’s claims against Millville and Farabella.1 The Court found that Plaintiff’s claims against Millville and Farabella did not provide sufficient facts to make his claims plausible as required under applicable pleading standards. The Court also found, however, that in consideration of the substance of Plaintiff’s brief and Third Circuit precedent, Plaintiff should be granted leave to file an amended complaint.

Plaintiff filed an amended complaint, and Millville and Farabella have again moved to dismiss Plaintiff’s claims against them. For the reasons expressed below, the Court will deny Defendants’ motions.

BACKGROUND

In his amended complaint, Plaintiff, Barry Cottman, who is African-American, claims that on June 27, 2017, he was crossing a street in Millville, New Jersey “not engaged in any unlawful activity,” when Defendant Millville police officers Joseph Dixon and Robert Runkle “confronted plaintiff with one or more groundless accusations of supposedly wrongful or inappropriate conduct.” (Docket No. 40 at 4.) Plaintiff claims that the officers “argued with plaintiff but plaintiff engaged in no conduct that physically threatened or injured the defendants.” (Id.) Plaintiff claims, “Without reasonable provocation or justification, Defendant Officers Dixon and Runkle physically assaulted plaintiff, first seizing his person and then taking him forcefully to the ground. Dixon, who was approximately six foot three inches tall and weighed 250 pounds, restrained plaintiff by straddling him and pinning him to the sidewalk.” (Id.)

Plaintiff continues, “Defend[]ant Dixon was significantly taller and heavier tha[]n Plaintiff Cottman. Defendant Dixon had effective control over Plaintiff but claimed or acted as if he was not satisfied with Cottman’s degree of compliance, and so struck Plaintiff [with] a series of closed fist violent punches to the head and face, causing unnecessary and great pain, injury, bleeding, and intense fear and humiliation. Officer Runkle stood by and observed but did nothing to interfere with Dixon’s course of violent conduct.” (Id. at 4-5.)

Plaintiff claims that Dixon and Runkle each wrote a report about the incident. As for Dixon, Plaintiff alleges that Dixon filed a “materially false” criminal complaint against Plaintiff stating that Plaintiff had resisted arrest by striking the officers, which is false. (Id. at 6.) For Runkle, Plaintiff claims that in a report authored by Runkle regarding the incident, Runkle described the incident in detail but conspicuously omitted any mention of the several closed fist strikes by Dixon to the face and head of Plaintiff. (Id.) A trial in the municipal court was held regarding Dixon’s charges against Plaintiff. The prosecution did not call Dixon to testify as a witness, but it did call Runkle. According to Plaintiff, on cross-examination Runkle “admitted that he was present for the entire incident and just a couple of feet away from Cottman and Dixon, and that at no time did Plaintiff Cottman kick, punch, strike or even push the officers.” (Id.) Plaintiff’s amended complaint relates that the municipal court judge acquitted Plaintiff of all criminal charges, including the charge that he had resisted arrest by striking the officers. The municipal court judge also found that Dixon’s complaint and the specific allegations against Plaintiff were false. (Id.) Plaintiff’s amended complaint additionally relates that the incident “elicited on the spot complaints” from Plaintiff’s mother, who “was also arrested for complaining and was charged with a criminal offense.” (Id. at 7.) The municipal court dismissed that charge with prejudice, concluding that there was no criminal offense on her part.2 Plaintiff claims that his mother complained to internal affairs and there was “a purported investigation,” which lead to “an exoneration of the officers,” which was a “sham, and reflects at best a deliberate and willful blindness to the police misconduct that has occurred.” (Id.) Plaintiff has asserted claims pursuant to 42 U.S.C. § 1983 and its state law counterpart, the New Jersey Civil Rights Act (“NJCRA”), N.J.S.A. 10:6-2, et seq.3 Plaintiff claims that the defendant officers used excessive force and unlawfully restrained him in violation of the Fourth and Fourteenth Amendments (Counts One, Two and Five). Plaintiff also claims that the Defendant Police Chief Farabella and the City of Plaintiff’s mother is not a plaintiff in this matter.

Millville are liable for his injuries because of their failure to properly train the officers and for their fostering of customs and policies which condone the use of excessive force (Counts Three and Four).

Plaintiff’s claims against Farabella and Millville are recounted in a separate section of his amended complaint. (Docket No. 40 at 9-39.) Plaintiff explains that in a sixteen- month investigation from 2017 through November 2018, the Newark Star Ledger and NJ Advance Media for NJ.com (collectively referred to as “NJ.com”) compiled data based on New Jersey police use of force reports received through public records requests and published a series of articles referred to as The Force Report. The Force Report revealed that in Dixon’s first three-plus years as a police officer for the City of Millville, he reported using force more frequently than any other police officer in the State of New Jersey, and over the studied five- year period of 2012 through 2016, Dixon’s 58 instances in which he reported using force ranked him third statewide behind two other officers from different police departments who had 62 and such instances of reported use of force.

The Force Report further found that Dixon’s 58 use of force incidents in his first four years after completing police academy training yielded an average of more than one incident per month, while more than 17,000 New Jersey officers who reported using force over a similar period averaged less than one incident per year.

Plaintiff’s amended complaint relates that The Force Report revealed that Millville Police Officer Jeffrey Proffit, who reported using force 36 times during the same period - second to Dixon’s 58 - was indicted in February 2017 for seven counts of assault or abuse of force against various citizens of Millville. That indictment was four months before Dixon’s use of excessive force against Plaintiff. Proffit ultimately entered a guilty plea to third degree aggravated assault in January 2020.

Plaintiff claims that until Proffit was indicted, Farabella and the Millville Police Department had never found any complaint against Proffit to be “substantiated.” Moreover, Plaintiff claims that at no time prior to Plaintiff’s encounter with Dixon and Runkle in June 2017 had the Millville Police Department’s internal affairs section sustained any complaint for excessive force against any officer. Plaintiff relates that NJ.com reported that of the 39 excessive force complaints filed against police officers in the City of Millville from 2012 through 2016, not one complaint was substantiated.

Plaintiff claims that the Cumberland County grand jury’s indictment of Proffit in February 2017 on multiple counts of assault against citizens or arrestees placed Chief Farabella, the police department, and the municipality on clear notice that the internal affairs system was ineffectual, and that its police officers were employing excessive force against the citizenry. Plaintiff claims that despite such notice, Farabella and Millville did nothing - they did not change their internal affairs procedures or their training, and they did nothing to prevent continuing administrations of excessive force by members of the police department, which resulted Plaintiff’s injuries in June 2017.

More specifically to Dixon, Plaintiff claims that the use of force reports filed by Dixon were reviewed by the department, and some by Farabella, which also put them on notice regarding his significant use of force when compared to other officers, including Proffit. Additionally, in response to The Force Report, which was published after Plaintiff’s encounter with Dixon, Plaintiff claims that Farabella told NJ.com that Dixon was “an example of a fine officer” who has never been the subject of a substantiated excessive force complaint, and Farabella nominated Dixon for a Public Safety Officer Medal of Valor. Plaintiff further claims, however, that Farabella refused to reveal the number of excessive force complaints that had been filed against Dixon.

Plaintiff also claims that The Force Report revealed irregularities between Dixon’s use of force reports and what actually occurred.4 For example, for an incident involving Audra Capps, Dixon filled out a use of force report that stated he only restrained her and Capps was not injured. A video of the incident showed, however, that while Dixon was trying to handcuff 100 lbs. Capps, she attempted to take a step back from Dixon, and Dixon placed Capps in a headlock, lifted her off the ground, swung her over his hip, and slammed her face-first into the ground, breaking several of her ribs.5

Similarly, Plaintiff claims a citizen’s cell phone video of his encounter with Dixon was put on the internet a few days Plaintiff’s complaint relates that State investigators for the Office of Public Integrity and Accountability investigated and studied Millville’s police department as of 2019, and OPIA’s investigation revealed that Dixon prepared 80 use of force reports during his five years as a Millville police officer.

Plaintiff’s complaint further details various actions by Dixon during his time as a Millville police officer. (Docket No. 40 at 18-24.) Specifically related to the timeframe of Plaintiff’s encounter with Dixon, Millville police department Sgt. Redden prepared the evaluation of Dixon from January l, 2017 through November l, 2017, where he noted the number of traffic summonses, arrests and reports issued by Dixon, but he did not include any numbers about excessive force incidents, and Redden’s evaluation of Dixon was positive.

Plaintiff’s complaint further details the OPIA investigation, which revealed that prior to a 2019 policy change, the Millville police department’s review of use of force reports was perfunctory, it never involved any audio or video review, it constituted a one-page template that was filled in by the officer involved in a particular incident, and a supervisor would have no way of actually knowing that a UOF form was accurate and complete just by looking at the document prepared by the submitting officer. Additionally, the OPIA revealed that Dixon had a reputation in the department for punching people. Plaintiff’s complaint continues with allegations of how Farabella “had Dixon’s back.” Plaintiff’s complaint alleges that even though Farabella knew of Dixon’s tendencies to use excessive force, and allegedly spoke to Dixon on some occasions, Farabella did nothing meaningful to curb Dixon’s conduct or the excessive use of force by Proffit and the Millville police department as a whole. Plaintiff claims that Farabella took complete responsibility for the management of the police department and of the Internal Affairs Unit.

Plaintiff claims that in Farabella’s role as policymaker and supervisor for the Millville police department, Farabella acted with deliberate indifference to the consequences, and he established and maintained policies, practices, and customs regarding the un-checked use of excessive force by Dixon and the entire police department. Plaintiff also claims that Farabella failed to train and supervise the Millville police officers so that they would not engage in excessive force, and they would otherwise fail to perform effective internal affairs procedures to curb the use of excessive force.

Farabella and the City of Millville have again moved to dismiss Plaintiff’s claims against them. Defendants argue that Plaintiff’s allegations that Defendants “did not do enough” with regard to Dixon fail to show the requisite deliberate indifference and fostering of a custom of excessive force to maintain his claims against them. Plaintiff has opposed Defendants’ motions.

DISCUSSION

A. Subject Matter Jurisdiction

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over Plaintiff’s state law claims under 28 U.S.C. § 1367(a).

B. Standard for Motion to Dismiss

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need 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) (alteration in original) (citations omitted) (first citing Conley v. Gibson, 355 U.S. 41, 47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

To determine the sufficiency of a complaint, a court must take three steps: (1) the court must take note of the elements a plaintiff must plead to state a claim; (2) the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth; and (3) when there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 664, 675, 679 (2009) (alterations, quotations, and other citations omitted).

A district court, in weighing a motion to dismiss, asks “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.” Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our decision in Twombly expounded the pleading standard for ‘all civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in the coffin for the ‘no set of facts’ standard that applied to federal complaints before Twombly.”). “A motion to dismiss should be granted if the plaintiff is unable to plead ‘enough facts to state a claim to relief that is plausible on its face.’” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at 570). C. Analysis

For a claim against a municipality under § 1983, a municipality cannot be held liable under a theory of respondeat superior, but instead a municipality may be liable under § 1983 “if the plaintiff identifies a municipal ‘policy’ or ‘custom’ that was the ‘moving force’ behind the injury.” Jewell v. Ridley Township, 497 F. App’x 182, 185 (3d Cir. 2012) (quoting Monell v. Dept. of Social Servs. of City of N.Y., 436 U.S. 658, 691 (1978)). A policy exists “when a decision-maker with final authority issues an official proclamation, policy, or edict.” Noble v. City of Camden, 112 F. Supp. 3d 208, 221 (D.N.J. 2015) (internal quotations and citations omitted). “[A] custom may be established by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law.” Id. (internal quotations and citations omitted).

With regard to Farabella, there are two theories of supervisory liability under which he may be found liable. First, Farabella may be found liable if he “established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” Santiago v. Warminster Twp., 629 F.3d 121, 127 n.5 (3d Cir. 2010). Second, Farabella “may be personally liable . . . if he . . . participated in violating the plaintiff’s rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in his subordinates’ violations.” Id. at 127 (quoting A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)); see also Capps v. Dixon, 2021 WL 2024998, at *5–7 (D.N.J. May 21, 2021) (stating that “there are some uncertainties about the applicability of supervisory liability in any § 1983 action, and particularly in cases concerning the Fourth Amendment,” but the Third Circuit has recognized “two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates” (citing Barkes v. First Correctional Medical, Inc., 766 F.3d 307, 316 (3d Cir. 2014)).6

F.3d 60, 74 (3d Cir. 2011) (noting that “the typical ‘notice’ case seems to involve a prior incident or incidents of misconduct by a specific employee or group of employees, specific notice of such misconduct to their superiors, and then continued instances of misconduct by the same employee or employees”); Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996) (holding that five complaints of excessive force against the officer who used excessive force against the plaintiff, which had been transmitted through the chain of command to the policymaker-chief of police were sufficient to show that the policymaker knew of the officer's violent behavior)). facts to support his claims that Farabella and the City of Millville had notice and “consciously disregarded an obvious risk that the officer[s] would subsequently inflict a particular constitutional injury,” and this deliberate indifference caused the officers to use excessive force on Plaintiff. Brown, 520 U.S. at 411; Connick, 563 U.S. at 58-62. Plaintiff’s claims against Farabella and the City of Millville may proceed. Cf. Capps v. Dixon, 2021 WL 2024998, at *5–7 (D.N.J. May 21, 2021) (denying the defendants’ motions to dismiss, finding that the plaintiff sufficiently pleaded her supervisory liability claim against Farabella, and finding that “Capps has sufficiently alleged that Farabella either knew or should have known that Dixon received use of force complaints at a rate far higher than other officers in the department, and that whatever measures he took to correct this issue was insufficient. Thus, dismissal of Capps’s Monell claims against Millville is unwarranted at this time.”).

CONCLUSION

For the reasons expressed above, Defendants’ motions to dismiss Plaintiff’s claims against them will be denied. An appropriate Order will be entered.

Date: June 28, 2021 s/ Noel L. Hillman At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.