NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JONATHAN P. LOPEZ, :

: Civil Action No. 10-4023 (RBK)

Plaintiff, :

:

v. : OPINION

:

OFFICER HARRIS, et al., :

:

Defendants. :

APPEARANCES:

Plaintiff pro se

Jonathan P. Lopez

Ancora Psychiatric Hospital

301 Spring Garden Road

Ancora, NJ 08037

KUGLER, District Judge

Plaintiff Jonathan P. Lopez, a patient at Ancora Psychiatric

Hospital, seeks to bring this action in forma pauperis pursuant

to 42 U.S.C. § 1983, alleging violations of his constitutional

rights. Based on his affidavit of indigence, the Court will

grant Plaintiff’s application to proceed in forma pauperis

pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the Court

to file the Complaint.

At this time, the Court must review the Complaint to

determine whether it should be dismissed as frivolous or

malicious, for failure to state a claim upon which relief may be

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granted, or because it seeks monetary relief from a defendant who

is immune from such relief.

I. BACKGROUND

The following factual allegations are taken from Plaintiff’s

Complaint and are accepted as true for purposes of this review.

Plaintiff alleges that Defendant Officer Harris, an employee

of the New Jersey Human Services Police Department employed to

patrol the grounds at Ancora Psychiatric Hospital, arrested him

for violation of a restraining order and making terroristic

threats, without probable cause.

He also alleges that Defendant Human Services Police

Department is liable to him for failure to train Officer Harris.

Plaintiff seeks compensatory and punitive damages.

II. STANDARDS FOR A SUA SPONTE DISMISSAL

This Court must dismiss, at the earliest practicable time,

certain in forma pauperis actions that are frivolous, malicious,

fail to state a claim, or seek monetary relief from a defendant

who is immune from such relief. See 28 U.S.C. § 1915(e)(2).

In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe it liberally in favor of the

plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must

“accept as true all of the allegations in the complaint and all

reasonable inferences that can be drawn therefrom, and view them

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in the light most favorable to the plaintiff.” Morse v. Lower

Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).

A complaint is frivolous if it “lacks an arguable basis

either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

325 (1989) (interpreting the predecessor of § 1915(e)(2), the

former § 1915(d)). The standard for evaluating whether a

complaint is “frivolous” is an objective one. Deutsch v. United

States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).

In addition, any complaint must comply with the pleading

requirements of the Federal Rules of Civil Procedure.

Rule 8(a)(2) requires that a complaint contain “a short and

plain statement of the claim showing that the pleader is entitled

to relief.” A complaint must plead facts sufficient at least to

“suggest” a basis for liability. Spruill v. Gillis, 372 F.3d

218, 236 n.12 (3d Cir. 2004). “Specific facts are not necessary;

the statement need only ‘give the defendant fair notice of what

the ... claim is and the grounds upon which it rests.’” Erickson

v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted).

While a complaint ... 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, see Papasan v. Allain, 478 U.S. 265, 286, 106

S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to

dismiss, courts “are not bound to accept as true a

legal conclusion couched as a factual allegation”). 

Factual allegations must be enough to raise a right to

relief above the speculative level ... .

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Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007)

(citations omitted).

Where a complaint can be remedied by an amendment, a

district court may not dismiss the complaint with prejudice, but

must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34

(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d

Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane

v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal

pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg

County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).

III. SECTION 1983 ACTIONS

A plaintiff may have a cause of action under 42 U.S.C.

§ 1983 for certain violations of his constitutional rights. 

Section 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory ... subjects, or causes to be subjected,

any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress ... .

Thus, to state a claim for relief under § 1983, a plaintiff must

allege, first, the violation of a right secured by the

Constitution or laws of the United States and, second, that the

alleged deprivation was committed or caused by a person acting

under color of state law. West v. Atkins, 487 U.S. 42, 48

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(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.

1994).

Finally, a § 1983 action brought against a person in his or

her official capacity “generally represent[s] only another way of

pleading an action against an entity of which an officer is an

agent.” Monell, 436 U.S. at 690 n.55. “[I]n an officialcapacity action, ... a governmental entity is liable under § 1983

only when the entity itself is a ‘moving force’ behind the

deprivation; thus, in an official capacity suit the entity’s

‘policy or custom’ must have played a part in the violation of

federal law.” Kentucky v. Graham, 473 U.S. 159, 166 (1985)

(internal quotation marks and citations omitted).

IV. ANALYSIS

A. False Arrest Claim

Plaintiff alleges that Officer Harris arrested him without

probable cause.

It is well established in the Third Circuit that an arrest

without probable cause is a Fourth Amendment violation actionable

under § 1983. See Walmsley v. Philadelphia, 872 F.2d 546 (3d

Cir. 1989)(citing cases); see also, Albright v. Oliver, 510 U.S.

266, 274 (1994) (a section 1983 claim for false arrest may be

based upon an individual’s Fourth Amendment right to be free from

unreasonable seizures). Under New Jersey law, false arrest has

been defined as “the constraint of the person without legal

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justification.” Ramirez v. United States, 998 F. Supp. 425, 434

(D.N.J. 1998) (quoting Fleming v. United Postal Service, Inc.,

604 A.2d 657, 680 (N.J. Law Div. 1992)).

To state a Fourth Amendment claim for false arrest, a

plaintiff must allege two elements: (1) that there was an

arrest; and (2) that the arrest was made without probable cause. 

Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir.

1988). To establish the absence of probable cause, a plaintiff

must show “that at the time when the defendant put the

proceedings in motion the circumstances were such as not to

warrant an ordinary prudent individual in believing that an

offense had been committed.” Lind v. Schmid, 67 N.J. 255, 262

(1975). “Probable cause . . . requires more than mere suspicion;

however, it does not require that the officer have evidence to

prove guilt beyond a reasonable doubt.” Orsatti v. New Jersey

State Police, 71 F.3d 480, 482-83 (3d Cir. 1995). Rather,

probable cause exists when the facts and circumstances are

“sufficient to warrant a prudent man in believing that the

defendant had committed or was committing an offense.” Gerstein

v. Pugh, 420 U.S. 103, 111 (1975) (quoting Beck v. State of Ohio,

379 U.S. 89, 91 (1964)); Sharrar v. Felsing, 128 F.3d 810, 817

(3d Cir. 1997).

Plaintiff’s allegations are sufficient to permit the false

arrest claim to proceed as against Officer Harris.

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B. Failure to Train Claim

Plaintiff alleges that the Human Services Polices Department

is liable to him for failure to train Officer Harris. The

allegations are not sufficient to state a claim.

Initially, Plaintiff has failed to assert facts sufficient

to state a claim, as against any person, for failure to train

Officer Harris.

Where a need for “more or different training ... is so

obvious, and the inadequacy so likely to result in constitutional

violations, that the failure to train ... can fairly be said to

represent official policy,” City of Canton v. Harris, 489 U.S.

378, 390 (1989), and that failure to train “actually causes

injury,” a supervisor may be held liable, Id. 

In addition, in resolving the issue of supervisory

liability,

the focus must be on adequacy of the training program

in relation to the tasks the particular officers must

perform. That a particular officer may be

unsatisfactorily trained will not alone suffice to

fasten liability on the [supervisor], for the officer’s

shortcomings may have resulted from factors other than

a faulty training program. ... Neither will it

suffice to prove that an injury or accident could have

been avoided if an officer had had better or more

training ... . Moreover, for liability to attach ...

the identified deficiency in a city’s training program

must be closely related to the ultimate injury.

Id. at 390-91. Here, Plaintiff has alleged only that one officer

arrested him without probable cause, plainly an insufficient

basis on which to assert a claim for failure to train. Plaintiff

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has failed to allege any facts describing the allegedly faulty

training program, or suggesting that any inadequacies are likely

to lead to constitutional violations, or suggesting that any

deficiencies are closely related to the ultimate constitutional

violation alleged.

In addition, Plaintiff has failed to allege facts suggesting

that the Human Services Police Department should be held liable. 

Most importantly, it appears that the Human Services Police

Department is an arm of the state government, which is immune

from liability under the Eleventh Amendment. See, e.g., N.J.S.A.

30:40-14 et seq. (appointment of police officers for department

of human services). Title 28 Section 1915(e)(2)(B)(iii) requires

this Court to dismiss this action if it “seeks monetary relief

from a defendant who is immune from such relief.”

The Eleventh Amendment to the United States Constitution

provides that, “The Judicial power of the United States shall not

be construed to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by citizens of

another State, or by Citizens or Subjects of any Foreign State.”

As a general proposition, a suit by private parties seeking

to impose a liability which must be paid from public funds in a

state treasury is barred from federal court by the Eleventh

Amendment, unless Eleventh Amendment immunity is waived by the

state itself or by federal statute. See, e.g., Edelman v.

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Jordan, 415 U.S. 651, 663 (1974). The Eleventh Amendment

protects states and their agencies and departments from suit in

federal court regardless of the type of relief sought. Pennhurst

State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984). 

Similarly, absent consent by a state, the Eleventh Amendment bars

federal court suits for money damages against state officers in

their official capacities. See Kentucky v. Graham, 473 U.S. 159,

169 (1985). Section 1983 does not override a state’s Eleventh

Amendment immunity. Quern v. Jordan, 440 U.S. 332 (1979).

In addition, neither states, nor governmental entities that

are considered arms of the state for Eleventh Amendment purposes,

nor state officers sued in their official capacities for money

damages are persons within the meaning of § 1983. Will v.

Michigan Dept. of State Police, 491 U.S. 58, 64, 70-71 and n.10

(1989); Grabow v. Southern State Correctional Facility, 726

F.Supp. 537, 538-39 (D.N.J. 1989) (the New Jersey Department of

Corrections is not a person under § 1983).

Finally, to the extent the Human Services Police Department

could not be considered an arm of the state government immune

under the Eighth Amendment, there is no vicarious liability under

§ 1983 that would permit it to be held liable. Local government

units and supervisors are not liable under § 1983 solely on a

theory of respondeat superior. See City of Oklahoma City v.

Tuttle, 471 U.S. 808, 824 n.8 (1985); Monell v. New York City

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Department of Social Services, 436 U.S. 658, 690-91, 694 (1978)

(municipal liability attaches only “when execution of a

government’s policy or custom, whether made by its lawmakers or

by those whose edicts or acts may fairly be said to represent

official policy, inflicts the injury” complained of); Natale v.

Camden County Correctional Facility, 318 F.3d 575, 583-84 (3d

Cir. 2003). “A defendant in a civil rights action must have

personal involvement in the alleged wrongs, liability cannot be

predicated solely on the operation of respondeat superior. 

Personal involvement can be shown through allegations of personal

direction or of actual knowledge and acquiescence.” Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations

omitted). Accord Robinson v. City of Pittsburgh, 120 F.3d 1286,

1293-96 (3d Cir. 1997); Baker v. Monroe Twp., 50 F.3d 1186, 1190-

91 (3d Cir. 1995).

To establish municipal liability under § 1983, “a plaintiff

must show that an official who has the power to make policy is

responsible for either the affirmative proclamation of a policy

or acquiescence in a well-settled custom.” Bielevicz v. Dubinon,

915 F.2d 845, 850 (3d Cir. 1990), quoted in Blanche Rd. Corp. v.

Bensalem Twp., 57 F.3d 253, 269 n.16 (3d Cir.), cert. denied, 516

U.S. 915 (1995), and quoted in Woodwind Estates, Ltd. v.

Gretkowski, 205 F.3d 118, 126 (3d Cir. 2000). A plaintiff must

demonstrate that, through its deliberate conduct, the

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municipality was the moving force behind the plaintiff’s injury. 

Monell, 436 U.S. at 689.

A policy is made “when a decisionmaker possess[ing]

final authority to establish municipal policy with

respect to the action issues a final proclamation,

policy or edict.” Kneipp v. Tedder, 95 F.3d 1199, 1212

(3d Cir. 1996) (quoting Pembaur v. City of Cincinnati,

475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452

(1986) (plurality opinion)). A custom is an act “that

has not been formally approved by an appropriate

decisionmaker,” but that is “so widespread as to have

the force of law.” [Bd. of County Comm’rs of Bryan

County, Oklahoma v. Brown, 520 U.S. 397, 404 (1997).]

There are three situations where acts of a

government employee may be deemed to be the result of a

policy or custom of the governmental entity for whom

the employee works, thereby rendering the entity liable

under § 1983. The first is where “the appropriate

officer or entity promulgates a generally applicable

statement of policy and the subsequent act complained

of is simply an implementation of that policy.” The

second occurs where “no rule has been announced as

policy but federal law has been violated by an act of

the policymaker itself.” Finally, a policy or custom

may also exist where “the policymaker has failed to act

affirmatively at all, [though] the need to take some

action to control the agents of the government ‘is so

obvious, and the inadequacy of existing practice so

likely to result in the violation of constitutional

rights, that the policymaker can reasonably be said to

have been deliberately indifferent to the need.’”

Natale, 318 F.3d at 584 (footnote and citations omitted).

Here, Plaintiff has alleged no facts that would suggest that

the allegedly false arrest was the product of a policy, or

deliberate indifference to the need for a policy, of the Human

Services Police Department.

For all of these reasons, the “failure to train” claim must

be dismissed with prejudice.

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V. CONCLUSION

For the reasons set forth above, the false arrest claim may

proceed as against Defendant Officer Harris. The remaining claim

against the Human Services Police Department will be dismissed

with prejudice for failure to state a claim.

An appropriate order follows.

s/Robert B. Kugler 

Robert B. Kugler

United States District Judge

Dated: August 18, 2010 

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