NASH WILLIAMS, 

Plaintiff,

v.

J. BENTIVEGNA, NEW JERSEY

DIVISION OF STATE POLICE, and

SUPERINTENDENT OF NEW JERSEY

DIVISION OF STATE POLICE,

Defendants.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 HONORABLE JOSEPH E. IRENAS

CIVIL ACTION NO. 11-4018 (JEI)

ORDER DENYING PLAINTIFF’S

MOTION TO REMAND (Dkt. No. 7)

AND DISMISSING DEFENDANTS NEW

JERSEY DIVISION OF STATE

POLICE AND SUPERINTENDENT OF

NEW JERSEY DIVISION OF STATE

POLICE

APPEARANCE:

FARRELL & THURMAN, PC

By: Douglass L. Derry

172 Tamarack Circle

Skillman, NJ 08558

Counsel for Plaintiff

GLUCK WALRATH, LLP

By: David Allan Clark

428 River View Plaza

Trenton, NJ 08611 

Counsel for Defendant J. Bentivegna

WOLFF SAMSON

By: Bruce D. Ettman

One Boland Drive

West Orange, NJ 07052

Counsel for Defendant New Jersey Division of State

Police and Defendant Superintendent of New Jersey

Division of State Police

IRENAS, Senior District Judge:

This matter having appeared before the Court upon the

Court’s own Order to Show Cause (Dkt. No. 2) and Plaintiff’s

Motion to Remand (Dkt. No. 7), the Court having considered the

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submissions of the parties, and it appearing that:

1. Plaintiff Joseph Sgrignuoli filed his complaint against

Defendants in New Jersey Superior Court on May 2, 2011. 

Plaintiff alleges that Defendant Bentivegna wrongly arrested him

at a highway rest stop. Plaintiff brings claims against all

Defendants under 42 U.S.C. § 1983 and the New Jersey Civil Rights

Act (the “NJCRA”), N.J.S.A. § 10:6-2. Defendant Bentivegna filed 1

a timely notice of removal with this Court on July 13, 2011,

asserting removal is proper because Plaintiff brings claims under

federal law. The Court issued its Order to Show Cause on July

19, 2011, requesting Plaintiff to show cause why Defendant New

Jersey Division of State Police (“NJDSP”) and Defendant

Superintendent of New Jersey Division of State Police

(“Superintendent,” and together with NJDSP, the “State

Defendants”) should not be dismissed from the action. Plaintiff

filed a Motion to Remand on July 26, 2011, arguing that removal

was not proper because the Superintendent did not properly

consent. 

2

2. Section 1983 provides, in pertinent part, that:

Every person who, under color of any statute, ordinance,

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

or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other

 Plaintiff also asserts a claim for attorneys’ fees under 1

42 U.S.C. § 1988. Pursuant to § 1988, a court may grant

attorneys’ fees to a prevailing party in a suit under § 1983. 

 Plaintiff concedes that the NJDSP was improperly joined 2

and the NJDSP’s consent was not needed for removal.

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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. . . .

The Supreme Court has held that a state is not a “person” and is

therefore not amenable to suit under § 1983. Will v. Mich. Dep't

of State Police, 491 U.S. 58, 69 (1989). A suit against a state

official acting in his official capacity “is no different from a

suit against the state itself,” and such state official is not a

“person” amenable to suit for money damages under § 1983. Id. at

71. In contrast, a suit for injunctive relief brought against a

state official who was acting in his official capacity is not an

action against the state, and such a claim may properly be

brought under § 1983. Id. at 71, n. 10.

3. The NJCRA provides, in pertinent part, that: 

[a]ny person who has been deprived of any substantive due

process or equal protection rights, privileges or

immunities secured by the Constitution or laws of the

United States, or any substantive rights, privileges, or

immunities secured by the Constitution or laws of this

State, or whose exercise or enjoyment of those

substantive rights, privileges, or immunities has been

interfered with or attempted to be interfered with, by

threats, intimidation or coercion by a person acting

under color of law, may bring a civil action for damages

and for injunctive or other appropriate relief.

The NJCRA was modeled after § 1983, and the requirement that

the defendant be a “person” is the same under both statutes. See

Slinger v. New Jersey, 2008 U.S. Dist. LEXIS 71723, *14-*15

(D.N.J. Sept. 4, 2008). Additionally, New Jersey has provided a

statutory definition of “person.” Under New Jersey law, a

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“person” includes:

corporations, companies, associations, societies, firms,

partnerships and joint stock companies as well as

individuals. . . and, when used to designate the owner of

property which may be the subject of an offense, includes

this State, the United States, any other State of the

United States as defined infra and any foreign country or

government lawfully owning or possessing property within

this State.

N.J.S.A. §1:1-2. Under this definition, the state is only a

person when standing as a victimized property owner.3

4. Plaintiff has brought suit against the NJDSP and the

Superintendent for money damages and injunctive relief. 

Plaintiff, though, has failed to state a claim for injunctive

relief. A court may issue an injunction to “afford relief

against future acts or conduct which are against equity and good

conscience.” Devine v. Devine, 20 N.J. Super 522, 527 (Ch. Div.

1952). Here, the Complaint alleges that Plaintiff’s injuries

arose out of a single, isolated incident between Plaintiff and

Defendant Bentivegna. Plaintiff has not plead facts upon which

the Court may conclude that Plaintiff is at risk of future harm

from the Defendants or that the alleged violations are likely to

reoccur. Without such factual allegations, Plaintiff cannot

state a claim for injunctive relief. Instead, Plaintiff’s sole

remedy is money damages. 

5. The NJDSP is a state entity and not amenable to suit

The legislative history of the NJCRA also makes clear that 3

the state was to be “excluded from the ambit of defendants

against whom actions may be brought under the NJCRA.” See

Slinger, 2008 U.S. Dist. LEXIS 71723 at *21. 

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under either § 1983 or the NJCRA. Superintendent is a state

official who has been sued only in his official capacity

(Complaint ¶ 6). Under Will, Superintendent is not a “person”

when sued in his official capacity for money damages and

therefore is not amenable to suit under § 1983 or the NJCRA in

this action. Because Plaintiff has failed to state a claim for

which relief may be granted against the State Defendants, each of

the State Defendants will be dismissed from this action.

6. In order to remove a case to federal court, all

defendants must provide their consent. Diet Drugs Prod. Liab.

Litig. v. Am. Home Prod. Corp., 220 F. Supp. 2d 414, 419 (E.D.

Pa. 2002). The consent of a party fraudulently joined, though,

is not required. Id. The Third Circuit has explained that

“[j]oinder is fraudulent where there is no reasonable basis in

fact or colorable ground supporting the claim against the joined

defendant, or no real intention in good faith to prosecute the

action against the defendants or seek a joint judgment.” Batoff

v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992). 

Because there was no colorable ground supporting Plaintiff’s

claims against the State Defendants, the State Defendants were

fraudulently joined to this action and their consent was not

necessary for proper removal. Defendant Bentivegna’s removal was

proper, and Plaintiff’s Motion to Remand will be denied.4

The Eleventh Amendment to the United States Constitution 4

provides that “[t]he Judicial power of the United States shall

not be construed to extend to any suit. . . commenced or

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IT IS on this 11th day of August, 2011,

ORDERED THAT:

1. Defendant New Jersey Division of State Police and

Defendant Superintendent of New Jersey Division of State

Police are hereby DISMISSED from this action.

2. Plaintiff’s Motion to Remand is hereby DENIED. 

 s/ Joseph E. Irenas 

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

prosecuted against one of the States” by citizens of another

state. The Supreme Court has interpreted this to preclude a

state from being sued by its own citizens in federal court. 

Lapides v. Bd. of Regents, 535 U.S. 613, 618 (2002). A state

that voluntarily consents to the removal of an action to federal

court waives this immunity. Id. at 620. Even had the State

Defendants been properly joined to this action, sovereign

immunity would not bar this suit because the State Defendants’

consent would have been necessary for removal to this Court, and

such consent would waive any claim for sovereign immunity. 

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