TRACEY MILLER, SR.,

Plaintiff,

v.

WATERFORD TOWNSHIP, et al.,

Defendants.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

HONORABLE JOSEPH E. IRENAS

CIVIL ACTION NO. 11-3405

(JEI/JS)

OPINION

APPEARANCES:

LAW OFFICE OF CHARLES A. FIORE

By: Charles A. Fiore, Esq.

34 S. Main Street

P.O. Box 525

Williamstown, NJ 08094

Counsel for Plaintiff

BARKER, SCOTT, GELFAND & JAMES

By: Todd J. Gelfand, Esq.

1939 Route 70 East, Suite 100

Cherry Hill, NJ 08003

Counsel for Defendants Waterford Township, Chief of Police 

John W. Knoll, Detective Leonard F. Thackston, and Officer 

Brent Staiger

BLUMBERG & LINDNER, LLC

By: Jay J. Blumberg, Esq.

158 Delaware Street

P.O. Box 68

Woodbury, NJ 08096

Counsel for Defendants Borough of Chesilhurst and Officer 

Chris Francis

PARKER MCCAY, PC

By: J. Brooks Didonato, Esq.

John Charles Gillespie, Esq.

9000 Midlantic Drive, Suite 300

P.O. Box 5054

Mount Laurel, NJ 08054-1539

Counsel for Defendants Evesham Township and Officer Bernard 

Davis

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POWELL, BIRCHMEIER & POWELL

By: James Birchmeier, Esq.

1891 State Highway 50

P.O. Box 582

Tuckahoe, NJ 08250

Counsel for Defendants Sgt. Joseph McNally, Sgt. Richard 

Passarella and Officer Timothy Lyons

IRENAS, Senior District Judge:

Plaintiff Tracey Miller initiated this action pursuant to 42

U.S.C. § 1983 against several municipalities and some of their

police officers. Plaintiff alleges violations of his Fourth and 1

Fourteenth Amendment rights stemming from incidents of alleged

harassment, unlawful arrest and excessive force. Pending before

the Court is Defendant Sergeant Richard Passarella’s

(“Passarella”) Motion for Judgment on the Pleadings pursuant to

Fed. R. Civ. P. 12(c). 

I.

According to the Complaint, Plaintiff was involved in a

highly contested divorce matter which also involved a domestic

violence complaint. (Compl. ¶ 18.) Defendant Sergeant McNally

(“Defendant McNally”) of the Waterford Township Police Department

was close friends with the father of Plaintiff’s ex-wife, and the

Complaint alleges that because of this “liberties were taken by

various police officers in the Waterford Twp. Police Department

against Plaintiff.” (Id. ¶ 19.) Plaintiff was allegedly “under

 The Court exercises subject matter jurisdiction pursuant 1

to 28 U.S.C. §§ 1331 and 1367. 

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surveillance” and officers “would frequently pass by his house,

slow down as they approached his house and would stay there for

several minutes in an attempt to harass and/or intimidate him.” 

(Id. ¶ 19.) The Complaint details specific incidents giving rise

to the instant action. 

On October 14, 2010, Plaintiff was stopped by Defendant

Officer Timothy Lyons (“Defendant Lyons”) of the Waterford Police

Department for failure to come to a complete stop at an

intersection. (Id. ¶ 22.) Plaintiff was placed under arrest and

issued summonses for various violations. (Id. ¶ 23.) 2

On October 18, 2010, Plaintiff had an encounter with

Defendant McNally which ultimately resulted in Plaintiff being

charged with various motor vehicle and criminal offenses. (Id. ¶

26.) On this date, Plaintiff left his home in his vehicle with

his minor daughter and drove past the home of his ex-wife, who

lives on the same street. (Id.) While doing so, he took a

photograph of Defendant McNally’s police cruiser parked in her

driveway. (Id.) After realizing “that he had forgotten

something at his home,” he returned home. (Id. ¶ 27.) As he

passed the home of his ex-wife again, Defendant McNally pulled

out ahead of him, only to pull over and let Plaintiff pass him. 

(Id.) Plaintiff then pulled off the roadway and parked in an

 Plaintiff was convicted by the Waterford Township 2

Municipal Court on the charges related to this incident. (Compl.

¶ 24.) The conviction is presently on appeal. (Id.) 

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abandoned parking lot. (Id.) 

The Complaint avers what happened next.

All of a sudden and without warning, the

Defendant, Sergeant McNally, admitted that he

made a u-turn after passing the Plaintiff and

pulled his vehicle into the abandoned parking

lot behind the Plaintiff’s vehicle in an

attempt to apparently have some sort of

confrontation with Plaintiff. At that time,

Defendant, Sergeant McNally exited his vehicle

and ran up to the vehicle being operated by

Plaintiff with his gun drawn. Plaintiff had

his window down with the exception of

approximately 3 inches. He was instructed by

Defendant, Sergeant McNally, to place his

hands on the wheel and also to exit the

vehicle. The young SM telephoned her

grandmother and indicated that she believed

that Defendant, Sergeant McNally was going to

kill the Plaintiff based upon the fact that he

had a gun drawn and was yelling “I should have

shot you when I had the fucking chance.” 

Plaintiff was in fear of his life and was also

concerned that he was going to be shot and

killed by the Defendant, Sergeant McNally,

right in front of his minor daughter. 

Therefore, he jumped out of the vehicle and

ran approximately 50 feet and fell to the

ground.

(Id. at 28.) Plaintiff was then “placed under arrest, handcuffed

and then pummeled by Defendant, Sergeant McNally and Defendant,

Officer Davis, an off duty Evesham Township Police Officer, as

well as other police officers of the Defendant, Waterford

Township.” (Id. at 29.)

On April 9, 2011, Plaintiff was traveling to his home when a

police cruiser pulled out behind him. (Id. at 31.) When

Plaintiff arrived at his home, an altercation ensued during which

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Defendant Officer Lyons allegedly “violently slammed Plaintiff to

the ground, jumped on his back and pounced his face into the

ground.” (Id. at 32.) Defendant McNally “smashed” Plaintiff’s

face into a pile of wood chips and continued to punch him. (Id. 3

at 33.) 

According to the Complaint, “[v]arious criminal charges have

been filed and the Officers involved herein, are also currently

under criminal investigation by the Camden County Prosecutor’s

Office as a result of the incidents outlined herein.” (Id. at

37.) 

On June 13, 2011, Plaintiff filed his Complaint in this

Court. On November 14, 2011, this Court granted a Motion to

Dismiss filed by Defendants Staiger, Thackson and Knoll and

terminated them as parties to this action. In addition, the

Court also granted the Motion for Judgment on the Pleadings filed

by Defendants Borough of Chesilhurst and Officer Francis and

terminated them as parties to this action. On November 21, 2011,

Defendant Passarella filed the instant Motion for Judgment on the

Pleadings.

II.

Pursuant to Fed. R. Civ. P. 12(c), “[a]fter the pleadings

are closed--but early enough not to delay trial--a party may move

 The Complaint alleges that Plaintiff’s father was also 3

involved in the altercation. (Id. at 36.) 

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for judgment on the pleadings.” Fed. R. Civ. P. 12(c). A Rule

12(c) Motion for Judgment on the Pleadings is subject to the same

standard of review as a Rule 12(b)(6) Motion to Dismiss. Turbe

v. Gov’t of V.I., 938 F.2d 427, 428 (3d Cir. 1991); see also

Spruill v. Gillis, 372 F.3d 218, 223 n.2 (3d Cir. 2004); Collins

v. F.B.I., 2011 WL 1624025, at *4 (D.N.J. April 28, 2011). 

Federal Rule of Civil Procedure 12(b)(6) provides that a

court may dismiss a complaint “for failure to state a claim upon

which relief can be granted.” In order to survive a motion to

dismiss, a complaint must allege facts that raise a right to

relief above the speculative level. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P.

8(a)(2). 

While a court must accept as true all allegations in the

plaintiff’s complaint, and view them in the light most favorable

to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224,

231 (3d Cir. 2008), a court is not required to accept sweeping

legal conclusions cast in the form of factual allegations,

unwarranted inferences, or unsupported conclusions. Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The

complaint must state sufficient facts to show that the legal

allegations are not simply possible, but plausible. Phillips,

515 F.3d at 234. “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

(2009).

III.

Against Defendant Passarella, the Complaint asserts claims

for violations of Plaintiff’s federal and state civil rights, and

state law claims for assault and battery, false arrest, false

imprisonment, and negligence. Defendant Passarella moves to

dismiss all claims arguing that the Complaint makes no factual

allegations against him.

While the Complaint recites elements of each cause of action

against Defendant Passarella, it entirely fails to set forth

factual averments explaining Defendant Passarella’s personal

involvement in the events giving rise to the instant action. 

“While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.” 

Iqbal, 129 S.Ct. at 1950.

While Plaintiff acknowledges that he did not include

specific allegations against Defendant Passarella, he argues that

“the Sergeant was in a supervisory capacity and may have been

present when several of the incidents occurred.” (Pl’s Opp. at

2.) However, without specific allegations regarding Defendant

Passarella’s individual involvement in or knowledge of the

incidents giving rise to the instant action, Plaintiff’s

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assertion that he “may have been present” is inadequate. 

Thus, with respect to the federal and state law claims

asserted against Defendant Passarella, Plaintiff has failed to

comply with the pleading requirement of facial plausibility. See

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(“To

prevent dismissal, all civil complaints must now set out

sufficient factual matter to show that the claim is facially

plausible.”)(internal quotations omitted). Accordingly,

Defendant Passarella’s Motion will be granted. 

IV.

For the reasons stated above, Defendant Passarella’s Motion

for Judgment on the Pleadings will be granted without prejudice. 

Plaintiff will be granted leave to file a motion to amend the

Complaint within 30 days of this Opinion. See Phillips v. County

of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008)(holding that

district courts “must permit a curative amendment unless such an

amendment would be inequitable or futile.”). An appropriate

Order accompanies this Opinion. 

Dated: December 19 , 2011

 s/Joseph E. Irenas 

 JOSEPH E. IRENAS, S.U.S.D.J. 

 

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