IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ROBERT MITCHELL,

Plaintiff,

v.

TOWNSHIP OF WILLINGBORO

MUNCIPALITY GOVERNMENT, et al.,

Defendants.

HONORABLE JEROME B. SIMANDLE

Civil No. 11-1664 (JBS/JS)

OPINION

APPEARANCES:

Robert Mitchell, Pro Se

1512 S. 58th Street

Apt. 2

Philadelphia, PA 19143

SIMANDLE, District Judge:

I. INTRODUCTION

Plaintiff Robert Mitchell, proceeding without a 

lawyer, seeks to bring this action in forma pauperis

pursuant to 28 U.S.C. § 1915, attempting to assert claims 

for deprivation of constitutional rights under 42 U.S.C. § 

1983 against the following Defendants in both their 

individual and official capacities, as relevant: the 

Township of Willingboro, the Township of Willingboro Police 

Department, the Township Manager (who is unnamed in the 

caption but identified in the Complaint as Joanne 

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Jennings), the Township Director of Public Safety (who is 

unnamed in the caption but identified 

in the Complaint as Gregory Rucker), the Township Police 

Captain (who is unnamed in the caption but identified in the 

Complaint as Donna C. Demetri), and the Township Police 

Officer involved in the stop (who is unnamed in the caption 

but identified in the Complaint as Officer Jeffrey Perez), 

alleging violations of his constitutional rights. Most of 

Plaintiff's Complaint fails to state a claim upon which 

relief can be granted, and so the Court will dismiss those 

portions without prejudice to refiling an amended complaint 

under 28 U.S.C. § 1915(e)(2)(B)(ii). Since the Complaint 

does state a Fourth Amendment claim against Officer Perez 

sufficient to survive this initial screening, the Court 

will order the Complaint to be served upon Officer Perez. 

II. FACTUAL BACKGROUND

The following factual allegations are taken from 

Plaintiff's Complaint and are accepted as true for purposes 

of this review: 

Plaintiff filed this action based on a police stop of 

his vehicle that resulted in his arrest because of 

outstanding warrants against him. Plaintiff claims that 

the officer stopping his vehicle lacked reasonable 

suspicion for the stop, and that he was stopped because of 

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racial profiling, describing himself as a "Black AfroAmerican Male Citizen." Compl. 6B. 

Specifically, Plaintiff alleges that on July 3, 2010 

he was driving in the Township of Willingboro with his son 

and son‟s girlfriend. Id. at 6C. They were in a green 

1993 Honda Accord owned by Plaintiff's wife. Id. 

Plaintiff alleges that he did not speed or otherwise break 

any traffic laws. Id. at 6D, 6E. Plaintiff alleges that 

the officer who stopped him explained that he received a 

911-dispatch call regarding a four-door, blue Honda Accord 

with no rear license plate and, therefore, stopped 

Plaintiff's car. Id. at 6G. Plaintiff notes that his twodoor Honda Accord is green and had a State of Pennsylvania 

rear license plate. Id.

Plaintiff did not have his driver's license with him, 

and when the officer performed a warrant check, central 

dispatch reported that outstanding warrants existed on 

Plaintiff‟s record. Id. at 6H. Plaintiff was arrested and 

brought to the Willingboro Township Police Department for 

booking. Id. at 6I. Plaintiff was issued a ticket for 

operating a motor vehicle on an expired driver's license. 

Id. Plaintiff claims the officer falsified the summons to 

show the car as being blue instead of green. Id.

Plaintiff alleges that there was no 911-dispatch call 

to be on the lookout for a blue Honda Accord, and that the 

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officer merely invented this pretext to cover up for a stop 

based on racial profiling. Id. at 6J. Plaintiff brings 

this suit against the municipality, the municipal police 

department, the township manager, the director of public 

safety, the police captain, and the municipal police 

officer involved in the stop. Id. at 4A-G.

As to Defendants other than the police officer, 

Plaintiff alleges that Defendants have a policy of racial 

profiling and racial discrimination and that they "failed 

to order officer involved to attend a interview and hearing 

to avoid a conflict of interest," without clarifying what 

he means by that. Id. at 4A–E; 6L.

Plaintiff characterizes his claim as a claim pursuant 

to 42 U.S.C. § 1983 for violation of his First, Fourth, and 

Fourteenth Amendment rights. Id. at 6N, 6O.

III. DISCUSSION

A. Standard of Review

This Court is directed under § 1915(e)(2) to dismiss, 

at the earliest practicable time, 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. 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 

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U.S. 519, 520-21 (1972); United States v. Day, 969 F.2d 39, 

42 (3d Cir. 1992). 

The legal standard for dismissing a complaint for 

failure to state a claim pursuant to § 1915(e)(2)(B) is 

identical to the legal standard used when ruling on Fed. R. 

Civ. P. 12(b)(6) motions. Courteau v. United States, 287 

F. App‟x 159, 162 (3d Cir. 2008) (not published); Allah v. 

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000); Tourscher v. 

McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Fed. 

R. Civ. P. 12(b)(6) standard to dismissal for failure to 

state a claim under § 1915(e)(2)(B)).

The Court must accept all factual allegations in a 

complaint as true and take them in the light most favorable 

to a pro se plaintiff. Phillips v. County of Allegheny, 

515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 

U.S. 89, 93 (2007). In addition, where a plaintiff proceeds 

pro se, his pleading is liberally construed and his 

complaint, "however inartfully pleaded, must be held to 

less stringent standards than formal pleadings drafted by 

lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations 

omitted). The Court is not required, however, to accept 

“bald assertions” or “legal conclusions” pleaded in a pro

se complaint. Morse v. Lower Merion School Dist., 132 F.3d 

902, 306 (3d Cir. 1997). 

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Pursuant to Rule 8(a)(2), a complaint need only 

contain “a short and plain statement of the claim showing 

that the pleader is entitled to relief.” Specific facts 

are not required, and “the statement need only „give the 

defendant fair notice of what the... claim is and the 

grounds upon which it rests.‟” Ericson v. Pardus, 551 U.S. 

89, 93 (2007) (citations omitted). While a complaint is 

not required to contain detailed factual allegations, the 

plaintiff must provide the “grounds” of his “entitle[ment] 

to relief”, which requires more than mere labels and 

conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 

555 (2007). Indeed, “a formulaic recitation of the 

elements of a cause of action will not do.” Id.; see also

Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to 

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

conclusion couched as a factual allegation”). 

Thus, a complaint may not survive dismissal where it 

lacks sufficient factual matter, accepted as true, to 

plausibly allege a cause of action. Ashcroft v. Iqbal, __ 

U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

However, where a complaint subject to dismissal can be 

remedied by amendment, plaintiffs should receive leave to 

amend unless such amendment would be futile or prejudicial. 

Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 

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2002) (holding that “§ 1915(e)(2) did not alter our 

preexisting rule that in forma pauperis plaintiffs who file 

complaints subject to dismissal under Rule 12(b)(6) should 

receive leave to amend unless amendment would be 

inequitable or futile.”).

B. Respondeat Superior and Municipal Liability

Local government units and supervisors are not liable 

under § 1983 solely based on their supervisory role. See

Monell v. New York City Department of Social Services, 436 

U.S. 658, 690-91, 694 (1978); Natale v. Camden County 

Correctional Facility, 318 F.3d 575, 583-84 (3d Cir. 2003); 

see also Iqbal, 129 S.Ct. at 1949 (2009). Rather, 

liability requires the defendant to have personally 

directed the wrongful conduct, or have actual knowledge and 

acquiesced in the alleged wrongs. Rode v. Dellarciprete, 

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

Plaintiff, apparently aware of this limitation, 

contends that Defendants other than the officer making the 

stop are liable because of a municipal policy of racial 

profiling. 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). A custom is an act "that has not been formally 

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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). A policymaker may be liable when "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's allegations regarding municipal 

liability or the liability of superior officers are 

entirely conclusory. Plaintiff has failed to allege any 

facts (as distinct from general legal phrases or legal 

conclusions) that suggest that the circumstances 

surrounding his stop were the result of an official policy 

or acquiescence in a well-settled custom, or that the 

conduct of Officer Perez was ordered by, or even known to 

any of the other Defendants. Indeed, the only concrete 

facts alleged by Plaintiff undermine his theory, as he 

alleged that the Department of Public Safety has a policy 

strictly prohibiting racial profiling. Accordingly, the 

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claims against all parties other than Defendant Perez will 

be dismissed without prejudice.

C. Liability for Officer Perez

To state a claim under 42 U.S.C. § 1983, a plaintiff 

must establish that the Defendant violated “a right secured 

by the Constitution and the laws of the United States” 

while acting under color of state law. West v. Atkins, 487 

U.S. 42, 48 (1988); Piecknick v. Pennsylvania, 36 F.3d 

1250, 1255-56 (3d Cir. 1994). Plaintiff alleges, against 

Officer Perez, constitutional violations arising under the 

First, Fourth, and Fourteenth Amendments. 

1. First Amendment claim

Plaintiff first claims that Officer Perez‟s conduct 

constituted a suppression of his First Amendment right to 

free speech. 

Plaintiff alleges that his right to free speech was 

violated when Officer Perez “did not want to hear anything 

Plaintiff had to say” regarding the validity of the vehicle 

stop and possible ulterior motives behind the stop. Compl. 

6-N. The Complaint appears to allege a violation on the 

basis of Officer Perez‟s failure to listen to or “hear” 

Plaintiff‟s arguments. Plaintiff, however, did not have a 

constitutionally protected right to demand Officer Perez 

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listen to his concerns about the vehicle stop. See

Minnesota State Bd. For Community Colleges v. Knight, 465 

U.S. 271, 283 (1984) (holding that plaintiffs had “no 

constitutional right to force the government to listen to 

their views.”). Indeed, “the First Amendment does not 

impose any affirmative obligation on the government to 

listen” or respond to one‟s exercise of First Amendment 

rights. Smith v. Arkansas State Highway Emp., Local 1315,

441 U.S. 463, 465 (1979).

Consequently, because Plaintiff has not pleaded facts 

showing that Officer Perez‟s actions deprived him of a 

constitutionally protected First Amendment right, 

Plaintiff‟s First Amendment claim fails.

2. Fourth Amendment claim

In addition to the First Amendment claim, Plaintiff 

also alleges a Fourth Amendment violation arising out of 

Officer Perez‟s stop of Plaintiff‟s vehicle. 

The Fourth Amendment protects “against unreasonable 

searches and seizures.” U.S. CONST. amend. IV. The 

traffic stop of an automobile is “subject to the 

constitutional imperative that it not be „unreasonable‟ 

under the circumstances. As a general matter, the decision 

to stop an automobile is reasonable where the police have 

probable cause to believe that a traffic violation has 

occurred.” Whren v. United States, 517 U.S. 806, 808 

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(1996). Further, the Fourth Amendment permits an 

investigatory stop by an officer pursuant to Terry v. Ohio, 

392 U.S. 1 (1968) if the officer “has a reasonable, 

articulable suspicion that criminal activity is afoot.” 

Illinois v. Wardlow, 528 U.S. 119, 123 (2000).

In this case, the Complaint alleges sufficient facts 

to support a claim that the traffic stop was 

constitutionally impermissible. Plaintiff claims that the 

stop was unreasonable, and therefore violative of the 

Fourth Amendment, because Officer Perez had neither 

probable cause nor reasonable suspicion to believe a 

traffic infraction or other violation had occurred. 

Indeed, Plaintiff alleges the officer‟s explanation for the 

stop, that he had received a 911-dispatch call regarding a 

four-door, blue Honda Accord, was pretextual. Compl. at 

6J. In reality, Plaintiff claims, there was no dispatch 

call to be on the lookout for a blue Honda Accord. Id.

Even if the 911-dispatch call were real, Plaintiff 

alleges that his vehicle, a green, two-door Honda Accord 

with Pennsylvania license plates, did not match the 

description of the blue, four-door Honda Accord with no 

rear license plate apparently provided by the call. Id. at 

6G. 

Without more information regarding the 911 dispatch, 

it is not clear that the officer had reasonable suspicion. 

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Consequently, the Complaint sufficiently pleads that 

Officer Perez had neither probable cause to believe a 

traffic violation had occurred nor reasonable suspicion

that Plaintiff was engaged in criminal activity, making the 

stopping of the vehicle unreasonable under the Fourth 

Amendment.

3. Fourteenth Amendment claim

Plaintiff alleges that the true reason behind Officer 

Perez‟s traffic stop, racial profiling, violates 

Plaintiff‟s right to equal protection under the Fourteenth 

Amendment. 

In order to bring an equal protection claim based on 

racial profiling under 42 U.S.C. 1983, Plaintiff must show 

that the officer‟s conduct (1) had a discriminatory effect 

and (2) was motivated by a discriminatory purpose. Bradley 

v. U.S., 299 F.3d 197, 205-06 (3d Cir. 2002). To 

demonstrate a discriminatory effect, Plaintiff must prove 

that he “is a member of a protected class and that [he] was 

treated differently from similarly situated individuals in 

an unprotected class.” Id. at 206.

As an African-American, Plaintiff is a member of a 

protected class. See, e.g., Waiters v. Hudson County 

Correctional Center, Civ. No. 07-421, 2010 WL 1838468, at 

*4 (D.N.J. May 05, 2010)(holding that because the plaintiff 

was of African-American descent, she was a “member of a 

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protected class by virtue of her race and of her 

ancestry”). However, mere invocation of the phrase “racial 

profiling” without more, is simply a legal conclusion, not 

a factual basis for a claim. The Court must disregard such 

legal conclusions and examine any facts alleged by 

Plaintiff that would form a plausible factual basis for 

that conclusion. Iqbal, 129 S. Ct. at 1949. The only 

relevant factual allegations made by Plaintiff are that he 

is black and he was stopped for an allegedly pretextual 

reason. Without more, this is an insufficient factual 

basis for the claim, because there is nothing in the 

pleadings to suggest that similarly-situated white drivers 

are not subject to improper investigative stops, or that 

this particular improper stop was a result of racial 

targeting instead of, say, the tinted windows or out-ofstate plates on the car. See, e.g., Pace Resources, Inc. 

v. Shrewsbury Tp., 808 F.2d 1023, 1026 (3d Cir. 1987) 

(holding that conclusory allegations regarding similarlysituated individuals are insufficient to state a claim); 

Fisher v. Vassar College, 70 F.3d 1420, 1439 (2d Cir. 1995) 

(noting that a plaintiff‟s “sense of being discriminated 

against” is insufficient to demonstrate discrimination).

Hence, upon preliminary screening, the Court finds 

that the Complaint states a claim under the Fourth 

Amendment sufficient to survive this initial screening, but 

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that Plaintiff‟s First and Fourteenth Amendment allegations 

are insufficient and will be dismissed without prejudice. 

IV. CONCLUSION

For the reasons set forth above, the claims against 

the Township of Willingboro, the Township of Willingboro 

Police Department, the Township Manager, Joanne Jennings, 

the Township Director of Public Safety, Gregory Rucker, and 

the Township Police Captain, Donna C. Demetri, are 

dismissed without prejudice, pursuant to 28 U.S.C. § 

1915(e)(2)(B)(ii), for failure to state a claim. 

The Complaint does, however, state a Fourth Amendment 

claim against Officer Jeffrey Perez sufficient to survive 

this screening, and the Court will thus order the Complaint 

to be served upon Officer Perez. 

The accompanying Order will be entered.

 July 26, 2011 s/ Jerome B. Simandle 

Date Jerome B. Simandle

U.S. District Judge

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