NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

GEORGE RAMIREZ, 

JOSHUA RUIZ,

Plaintiffs,

v.

THE CITY OF NEWARK, ESSEX 

COUNTY CORRECTIONAL FACILITY, 

AND OFFICERS JOHN DOE 1-10 (names 

being ficticious),

Defendants,

THE CITY OF NEWARK,

Defendant/ Third Party

Plaintiff,

COUNTY OF ESSEX, ESSEX COUNTY 

PROSECUTOR’S OFFICE, RICHARD 

ROE, DAVID ZOE (names being ficticious)

Third Party 

Defendants.

 Civil Action No. 11-CV-1150 (SDW-

 MCA) 

 

OPINION 

 June 14, 2012

WIGENTON, District Judge.

Before this Court is Third Party Defendant County of Essex’s (“Essex County”) Motion to 

Dismiss Third Party Plaintiff City of Newark’s (“City”) third party complaint pursuant to Federal 

Rule of Civil Procedure 12(b)(6). This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 

1343(a)(3), and 1367. Venue is proper pursuant to 28 U.S.C. § 1391(b). This Court, having 

considered the parties’ submissions, decides this matter without oral argument pursuant to Federal 

Rule of Civil Procedure 78. For the reasons stated below, this Court GRANTS Defendant’s Motion 

to Dismiss in part and DENIES it in part.

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I. FACTUAL AND PROCEDURAL BACKGROUND

This case is an indemnification action between the City and Essex County. The City is 

seeking indemnification from Essex County for Plaintiffs’ underlying action against the City. On 

June 3, 2009, Plaintiffs Jorge Ramirez and Joshua Ruiz were apprehended in the City of Newark. 

(See Pls.’ Am. Compl. ¶ 11.) Plaintiffs were driving on Montclair Avenue in Newark, NJ, on their 

way to pick up a friend when police cars suddenly surrounded Plaintiff Ramirez’s vehicle. (See id.

at ¶¶ 10-11.) The police personnel approached the vehicle with guns drawn. (See id. at ¶ 11.) After 

Plaintiffs exited the vehicle, they were forced to the ground and hand-cuffed. (See id.) Without 

having been read their rights or informed of the charges against them, Plaintiffs were then 

transported to the Second Precinct at One Lincoln Avenue and placed in a cell for several hours. 

(See id.) Plaintiffs were later transported to Newark Central Booking where they were held for four

to five days prior to appearing before a judge. (See id.) Plaintiffs were then transferred to Essex 

County Corrections Facility. (See id.) While incarcerated at Essex County Corrections Facility, 

Plaintiffs were assaulted by an inmate. (See Pls.’ Am. Compl. ¶ 12.) “Plaintiff Ramirez was hit 

upon the head violently and repeatedly by an inmate,” causing injuries that required medical 

attention. (Id.) After being at the Essex County Correctional Facility for thirteen months, Plaintiffs’ 

charges were dismissed. (See id. at ¶ 11; see also Decl. of Steve F. Olivo Ex. A, 48.) 

On March 1, 2011, Plaintiffs filed a complaint against ten unnamed police officers for the 

City and the City itself. (See dkt. no. 1.) On April 29, 2011, Plaintiffs filed an amended complaint 

adding the Essex County Correctional Facility as a defendant. (See dkt. no. 5.) The complaint 

asserted six different causes of action. (See id.) First, Plaintiffs alleged that Defendant Police 

Officers, the City, and the Essex County Correctional Facility (Collectively “Defendants”), acting 

willfully and knowingly, conspired to “deprive plaintiffs of their constitutional rights secured by 42 

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U.S.C. Section 1983.” (Pls.’ Am. Compl. ¶¶ 32, 33.) Second, Plaintiffs alleged that Defendant 

Officers willfully deprived Plaintiffs of their constitutional rights pursuant to Article 1, Section 7 of 

the New Jersey Constitution and that the City is vicariously liable for said deprivation. (See id. at 

¶¶ 37, 38.) Third, Plaintiffs claimed damages for the “willful, unlawful, unwarranted, and 

intentional assault and battery upon Plaintiffs” committed by Defendant Officers. (Id. at ¶ 41.) 

Fourth, Plaintiffs alleged that the City maliciously prosecuted them by bringing criminal charges 

against them absent probable cause, resulting in a prolonged confinement during which time 

Plaintiffs were assaulted by another inmate. (See id. at ¶¶ 12, 44.) Last, Plaintiffs claimed that the 

City negligently retained officers it had reason to know posed a danger to society thereby resulting 

in Plaintiffs’ injuries. (See id. ¶¶ 50-55.) Plaintiffs and Defendants stipulated to the dismissal of the 

fifth cause of action claiming negligent infliction of emotional distress. (See dkt. no. 13.)

On July 26, 2011 the City filed an answer to Plaintiffs’ complaint. ( See dkt. no. 14.) Then, 

on January 13, 2012, the City filed a motion seeking an order permitting leave to file an amended 

answer to Plaintiffs’ amended complaint and third party complaint. (See dkt. no. 27.) The motion 

was granted and the City subsequently filed an amended answer to Plaintiffs’ complaint and a third 

party complaint against Essex County seeking indemnification for Plaintiffs’ injuries. (See dkt. no. 

30.) The City’s third party complaint sets forth four bases for indemnification. First, the City 

alleges that the injuries and civil rights violations alleged by Plaintiffs occurred while Plaintiffs 

were in the custody of Essex County. (See Third Party Compl., First Cause of Action, ¶¶ 1-3.) 

Second, the City asserts that the Essex County Prosecutor’s Office was responsible for managing 

Plaintiffs’ case and failed to provide due process and a speedy trial. (See id., Second Cause of 

Action, ¶ 4.) Third, the City contends that Plaintiffs’ assault occurred under the supervision of an 

Essex County corrections officer responsible for protecting Ramirez’s safety. (See id., Third Cause 

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of Action, ¶ 3.) Fourth, the City claims that Plaintiffs’ thirteen-month confinement is a result of the 

Essex County assistant prosecutor’s failure to dispose of Plaintiffs’ case in a timely manner. (See 

id., Fourth Cause of Action, ¶ 4.) 

On March 26, 2012, Essex County filed the instant motion to dismiss the City’s complaint.

(See dkt. no. 36.) First, Essex County claims that seeking liability for third party contribution is 

impermissible under 42 U.S.C. § 1983. (See Third Party Def.’s Br. 3.) Essex County further asserts 

that the New Jersey Tort Claims Act (“NJTCA”) provides correctional institutions with absolute 

immunity from injuries resulting from inmate-on-inmate assaults as well as blanket immunity from 

other types of claims. (See id. at 4.) In additional, Essex County claims that the City’s complaint is 

insufficient to satisfy the pleading standard enumerated in Ashcroft v. Iqbal, 129 L. Ed. 2d 1937, 

173 (U.S. 2009). (See id. at 5.) Finally, Essex County contends that under Monell v. Dept. of Social 

Servs. of the City of New York, 436 U.S. 658 (U.S. 1978) a complaining party asserting a § 1983 

claim must show that the public entity in question has violated a custom or practice. (See id.)

II. LEGAL STANDARD

The adequacy of pleadings is governed by Federal Rule of Civil Procedure 8(a)(2), which 

requires that a complaint allege “a short and plain statement of the claim showing that the pleader is 

entitled to relief.” This Rule “requires more than labels and conclusions, and a formulaic recitation 

of the elements of a cause of action will not do. Factual allegations must be enough to raise a right 

to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 

(internal citations omitted); See Phillips v. Cnty of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) 

(Rule 8 “requires a ‘showing’ rather than a blanket assertion of an entitlement to relief.” (citation 

omitted)). In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), 

the Court must “‘accept all factual allegations as true, construe the complaint in the light most 

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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 (quoting Pinker v. Roche Holdings 

Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). However, “the tenet that a court must accept as true all 

of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals 

of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555). As the Supreme 

Court has explained:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has 

facial plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged. 

The plausibility standard is not akin to a ‘probability requirement,’ but it asks for 

more than a sheer possibility that a defendant has acted unlawfully. Where a 

complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it 

‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’

Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 556-57) (internal citations omitted).

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, 

129 S. Ct. at 1950 (citation omitted). If the “well-pleaded facts do not permit the court to infer 

more than the mere possibility of misconduct,” Id., the complaint should be dismissed for failing to 

“show[] that the pleader is entitled to relief” as required by Rule 8(a)(2). Id. 

As a general rule, a district court deciding a motion to dismiss may consider only the 

contents of the pleadings. Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 

2002) (internal citation omitted). However, there exists an exception to that general rule in that 

“‘[d]ocuments that the defendant attaches to the motion to dismiss are considered part of the 

pleadings if they are referred to in the plaintiff’s complaint and are central to the claim.’” Cooper v. 

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Samsung Elec. Am., Inc., 374 F. App’x 250, 253 n.3 (3d Cir. Mar. 30, 2010) (quoting Pryor, 288 

F.3d at 560).

III. DISCUSSION

a. Contribution for a 42 U.S.C. § 1983 Claim

Basic “considerations of justice suggest that tort-feasors whose conduct have caused a 

plaintiff a single injury should be equally liable.” Miller v. Apartments and Homes of New Jersey, 

646 F.2d 101, 109 (3d Cir. 1981). As such, “the rule of contribution is intimately bound up with the 

nature . . . of the substantive federal rights created by the civil rights acts.” Id. at 108. The federal 

courts are therefore not restricted from implying “a federal common law of contribution in civil 

rights cases.” Id. Thus, contribution is permissible for § 1983 claims. See Klaitz v. New Jersey, 

No. 04-529, 2006 WL 1843115 (D.N.J. June 30, 2006). 

Essex County argues that Miller is not applicable to this case because: (1) Miller addressed a 

42 U.S.C. § 1982 claim, not a § 1983 claim; (2) Miller relies on Glus v. GC Murphy Co., 629 F.2d 

248 (3d Cir. 1980), which held that a federal right of contribution could be implied from Title VII, 

but was overturned by the Supreme Court’s decision in Northwest Airlines, Inc. v. Transit Workers 

Union of America, 451 U.S. 77, 101 (1981); and (3) the decision in Rocuba v. Mackrell, No. 3:10-

1465, 2011 WL 5869787 at *3 (M.D. Pa. Nov. 22, 2011), relying on Northwest Airlines, which 

holds that “a separate third-party action seeking indemnification or contribution is not permitted 

under § 1983,” is controlling. (Third Party Def.’s Reply Br. 1-2.) The City argues that Rocuba is 

factually distinguishable from this case, that Miller is still good law, and therefore, that a right to 

contribution does exist under § 1983. (Third Party Pl.’s Br. 6.)

This Court agrees with the City’s assertion that Miller is controlling. Klaitz v. New Jersey,

is instructive here. In Klaitz, plaintiffs alleged that third-party defendants, several corrections 

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officers employed by the State, assaulted them in the shower area of the Gloucester County Jail 

during a routine strip search. See Klaitz, 2006 WL 1843115 at *1. Plaintiffs brought actions 

against various entities of the State of New Jersey (“the State Defendants”) as well as entities of 

Gloucester County (“the County Defendants”) pursuant to 42 U.S.C. § 1983. See id. at *3. The 

Court dismissed all claims against the State Defendants. See id. As a result, the only remaining 

claims were those alleging that “the County Defendants subjected Plaintiffs to the excessive use of 

force and failed to train and/or supervise their officers properly.” Id. The County Defendants then 

filed a third party complaint against the corrections officers responsible for the alleged assault 

seeking contribution and indemnification. See id. Pursuant to federal common law, Judge Kugler 

permitted the County Defendants to seek contribution. Id. at * 6. Third party defendants 

subsequently filed a motion for reconsideration challenging the validity of Judge Kugler’s decision. 

See Klaitz v. New Jersey, No. 04-529, 2007 WL 608444 (D.N.J. Feb. 23, 2007). 

Relying on the Supreme Court’s decision in Northwest Airlines for support, the third party 

defendants in Klaitz asserted that the court erred in determining that federal common law dictates 

that “a right of contribution exists under § 1983.” Id. at *2. The Supreme Court in Northwest 

Airlines held that because both the Equal Pay Act and Title VII of the Civil Rights Act of 1964 are 

comprehensive legislative schemes, the Court could not “add a right to contribution to the statutory 

rights that Congress created” therein. Northwest Airlines, 451 U.S. at 98. In reaffirming his 

original holding, Judge Kugler opined that “while other circuits have expressly held that, under 

Northwest Airlines no right to contribution exists under § 1983, the Third Circuit has not so 

concluded” and therefore “district courts within this Circuit are compelled to follow the Third 

Circuit’s decision in Miller.” Klaitz, 2007 WL 608444 at *3. Judge Kugler cited two decisions, 

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Fishman v. De Meo, 604 F.Supp. 873 (E.D.Pa. 1985) and Alexander v. Hargrove, No. 93-5510, 

1994 U.S. Dist. Lexis 11674 (E.D.Pa. Aug. 16, 1994), to support his conclusion. 

In Fishman, Justice Pollack explained: 

The Court’s determination [in Northwest Airlines] that contribution was 

unavailable to defendants in title VII and Equal Pay actions, stemmed from the 

premise that “[t]he presumption that a remedy was deliberately omitted from a 

statute is strongest when Congress has enacted a comprehensive legislative 

scheme including an integrated system of procedures for enforcement.” 

[Defendant] does not contend, nor could it, that section 1983 creates the sort of 

detailed structure of statutory remedies that is contained in Title VII . . . Thus, 

neither the holding, nor the rationale of Northwest Airlines requires the conclusion 

that contribution is unavailable to section 1983 defendants.

Fishman, 604 F.Supp. at 876; (internal citations omitted). In finding that Northwest Airlines does 

not require a court to deny contribution for § 1983 claims, Justice Pollack concluded that, “[u]nless 

and until the Third Circuit rules otherwise, Miller’s pronouncement that contribution is available in 

civil rights cases is binding on district courts in this Circuit.” Id. at 877. 

In Alexander v. Hargrove, the court reiterated Justice Pollack’s position that Northwest 

Airlines is not determinative because the language of Title VII analyzed therein is “substantially 

different” from § 1983. Hargrove, 1994 U.S. Dist. Lexis 11674 at *13. In addition, Hargrove

notes that the Miller opinion was released after the decision in Northwest Airlines and therefore the 

Third Circuit did not believe that Northwest Airlines had any bearing on its Miller opinion. See id. 

Furthermore, even if, because of the proximity of Miller’s release in relation to the Northwest

Airlines opinion, the court did not know of Northwest Airline’s position, the court did not 

subsequently petition for a rehearing or sua sponte reconsider the case. See id. Failure to reexamine the merits of Miller further shows the third circuit’s commitment to its decision in Miller. 

See id.

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Here this Court follows the Third Circuit’s determination as set forth in Miller, and followed 

by Klaitz, Fishman, and Hargrove. Thus, the City has a right to seek contribution for a § 1983 

claim. 

b. New Jersey Tort Claims Act 

Section 59:5-2(b)(4) of the NJTCA provides that “neither a public entity nor a public 

employee is liable for . . . any injury caused by . . . a prisoner to any other prisoner.” N.J.S.A. 59:5-

2(b)(4). Essex County argues that the immunity provided by this section of the NJTCA is absolute

and therefore absolves Essex County from any liability for the injuries arising from the assault on 

Plaintiffs. (See Third Party Def.’s Br. 4.) The City concedes that there is broad immunity under the 

NJTCA but denies that such immunity is absolute. (See Third Party Pl.’s Br. 7.) While this Court 

agrees with the City’s distinction, case law suggests that the City’s argument is still unavailing. 

Immunity under section 59:5-2(b)(4) of the NJTCA regarding prisoner-on-prisoner assault 

“recognizes the practical problems inherent in supervising prisoners [and] [w]hile it is necessary to 

provide supervision, the decision to do so . . . should not be threatened with tort liability.” White v. 

Lewis, 156 N.J. Super. 198, 201 (App. Div. 1978). White further explains that the “N.J.S.A. 59:5-

2(b)(4) was intended to insulate a public entity and employee from liability . . . even if the employee 

is negligent or grossly negligent in carrying out . . . [his] duties.” See id. at 202; see also Walker v. 

Glover, No. 06-5211, 2008 WL 4606312 (D.N.J. Oct. 16, 2008) (holding that even where defendant 

prison employees knew or should have known that placing plaintiff in a certain jail cell would pose 

a serious risk of injury to Plaintiff, employees were immune from the injuries that resulted 

therefrom under N.J.S.A. 59:5-2(b)(4)); Bona v. Wynn 311 N.J. Super. 257 (Law Div. 1997) 

(holding that where a jailor would normally be liable for violating N.J.S.A. 30:8-5 by placing a 

debtor in same cell as criminals, wherein said debtor is assaulted by cell-mates, N.J.S.A. 59:5-

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2(b)(4) absolves jailor of liability). Therefore, Essex County is immune from liability for Plaintiff 

Ramirez’s injuries pursuant to N.J.S.A. 59:5-2(b)(4). 

Though unclear from the brief submitted, the City also seems to argue, in its opposing brief, 

that if Plaintiffs’ injuries were the result of willful misconduct by a public official, Essex County 

would be liable on the doctrine of respondeat superior. (Third Party Pl.’s Br. 7.) The City argues

that further discovery might reveal such willful misconduct thereby subjecting Essex County to 

liability. (Id.) This contention is misguided. While an exception to immunity exists where a

public employee’s misconduct is willful pursuant to N.J.S.A. 59:3-14(a), under N.J.S.A. 59:2-10, a

public entity “is not liable for the acts or omissions of a public employee constituting . . . willful 

misconduct.” In McDonough v. Jorda 214 N.J. Super. 330 (App. Div. 1986), the Appellate 

Division determined that the language of section 59:2-10 clearly states that respondeat superior

does not apply where a “municipal employee” commits an “intentional tort.” Furthermore, a court 

may not “create municipal liability where municipal immunity is legislatively prescribed.” Id. 

Therefore, even if upon discovery the City demonstrates that the assault on Plaintiffs was the direct 

result of the willful misconduct of an employee of the Essex County Correctional Facility, under 

N.J.S.A. 59:2-10, Essex County cannot be held vicariously liable. 

c. Iqbal and Monell

Essex County’s third legal argument seeks dismissal for insufficiency of the pleadings. 

(Third Party Def.’s Br. 5.) First, Essex County contends that the allegations in the City’s complaint 

are merely conclusory and fail to state a specific “allegation . . . that would provide any plausible 

claim against the County or Essex.” (Id.) As Essex County fails to identify any deficiencies in the 

facts alleged in the City’s complaint, Essex County’s argument itself is a mere conclusory statement 

and is insufficient to sustain this motion. 

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Second, Essex County seeks dismissal on the grounds that “failure to allege a pattern or 

practice under Monell is insufficient under the Igbal [sic.] standard.” (Third Party Def.’s Br. 5.) 

This argument is without merit and will not be addressed. Essex County also contends that 

according to Monell, a public entity must be in “violation of a custom or practice in order to be 

liable under a 1983 claim” and that because the City does not allege violation of a custom or 

practice by Essex County, the City’s complaint must be dismissed. (Id.) Essex County’s reading of 

Monell is incorrect. Monell holds not that a public entity must be in violation of a custom or 

practice, but that a government custom or practice must violate constitutional rights. See T&M 

Homes, Inc. v. Twp. of Mansfield, 162 N.J. Super. 497, 504 (Law Div. 1978). Essex County’s

failure to accurately state the relevant law renders its argument defective and unpersuasive. 

IV. CONCLUSION

For the reasons set forth above, this Court denies Third Party Defendant’s motion to dismiss 

Third Party Plaintiff’s § 1983 indemnification claim and grants dismissal of Third Party Plaintiff’s 

claim for violation of the New Jersey Tort Claim Act. 

S/Susan D. Wigenton, U.S.D.J.

Orig: Clerk

Cc: Madeline Cox Arleo, U.S.M.J.

Parties 

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