Opinion
Civil No. 01-1571 (JBS).
Filed: February 28, 2002
Stephen M. Tatonetti, Esquire, Begelman Orlow, P.C., Cherry Hill, NJ, Attorney for Plaintiffs.
David Samson, Attorney General of New Jersey, By: Todd D. Wachtel, Deputy Attorney General, Department of Law and Public Safety, Division of Law, Trenton, N.J., Attorney for Defendants.
OPINION
I. INTRODUCTION
Presently before this Court is Defendants' motion to dismiss Plaintiffs' Complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim upon which relief may be granted. For the reasons discussed below, this Court will grant Defendants' motion and dismiss Plaintiff Wanda Bailey's loss of consortium claim based on a deprivation of her husband's federal civil rights with prejudice. Additionally, the Court will grant Defendants' motion as it applies to all other counts in Plaintiffs' Complaint, and the present state entities named as defendants are immune from suit, but the dismissal of these counts will be without prejudice to the naming of proper parties as defendants. Further, the Court grants Plaintiff Charles Bailey leave to file an Amended Complaint within twenty (20) days of the date of this Opinion and Order on those claims that are dismissed without prejudice.
Specifically, the Court finds that Plaintiffs' Complaint contains various pleading defects which fail to meet the standards of federal law. First, Plaintiffs fail to identify Defendants who qualify as "persons" under 42 U.S.C. § 1983. Second, because ordinary negligence by prison officials is not cognizable under § 1983, Plaintiffs fail to identify a right of federal constitutional origin allegedly violated by Defendants. Third, Plaintiffs' § 1983 claim is unclear and not plead with sufficient specificity as to put Defendants on notice of the nature of such a claim as required by Rule 8(a), Fed.R.Civ.P.
Furthermore, Plaintiffs' state law claims (counts 1-16, 25) fail to comply with New Jersey state law and the Eleventh Amendment. Plaintiffs have failed to plead the following items which are required for recovery under the New Jersey Tort Claims Act: (1) that Charles Bailey sustained permanent injuries; (2) that notice was filed within 90 days of the incident; and (3) that public employees were acting outside the scope of their employment. Additionally, Plaintiffs have not named as a defendant to the state law counts an entity or individual that is not immune from a suit for damages in federal court under the Eleventh Amendment.
II. JURISDICTION
Plaintiffs assert Charles Bailey was wrongfully imprisoned after a warrant for his arrest was mistakenly issued by New Jersey officials. In their Complaint, Plaintiffs raise a mix of state and federal claims. Plaintiffs, who are residents of Virginia, seek at least $75,000 of damages against the named Defendants, the State of New Jersey and several state entities and correction facilities. In addition, Plaintiffs raise numerous civil rights violations under 42 U.S.C. § 1983. Accordingly, jurisdiction by this Court is proper under both 28 U.S.C. § 1332 (diversity of citizenship) and 28 U.S.C. §§ 1331 (federal question) and 1343 (deprivation of a federal civil right).
III. FACTUAL BACKGROUND, COMPLAINT, AND LEGAL ALLEGATIONS
The facts alleged are as follows. On October 2, 1998, New Jersey Superior Court Judge Eugene Austin, sentenced Plaintiff Charles Bailey ("Mr. Bailey") to serve a three-year sentence with a one-year parole ineligibility after he was indicted for a Controlled Dangerous Substance charge. (Compl., ¶ 29; Pls.' Opp. Br., at 3.) Because he received certain jail and gap time credits, Mr. Bailey served a 45-day home release sentence at his father's home in Willingboro, N.J. (Compl., ¶¶ 29-30; Pls.' Opp. Br., at 3.) Upon completion of this program, Mr. Bailey was placed on parole until October 2, 2000. (Pls.' Opp. Br., at 3.)
In deciding a Rule 12(b)(6) motion, the Court is not concerned whether the alleged facts are true; rather the standard is whether the plaintiff has alleged facts that would constitute a legal claim. The Court must accept as true all of the facts pleaded in a complaint, as well as reasonable inferences from those matters. See Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). Thus, the facts stated here are taken from Plaintiffs' Complaint.
A few months after his release, Mr. Bailey, believing his parole obligations in New Jersey to be fulfilled, returned to his home state of Virginia. (Id. at 4.) Shortly after his leaving New Jersey, a fugitive warrant was apparently issued for Mr. Bailey's arrest. (Compl., ¶ 30.) Mr. Bailey was subsequently arrested on this warrant in Virginia and on October 25, 1999 was extradited to New Jersey where he remained incarcerated until December 10, 1999. (Id.)
Plaintiffs filed a twenty-five count Complaint on April 4, 2001 against the State of New Jersey, the New Jersey Department of Corrections, various prison facilities within the State of New Jersey, the New Jersey Parole Board, and unnamed individuals and entities. The Complaint alleges violations of Mr. Bailey's civil and constitutional rights, state law claims, and loss of consortium by his wife, Plaintiff Wanda Bailey ("Mrs. Bailey"). Specifically, Plaintiffs charge the following claims: gross negligence (Counts 1-8); false imprisonment (Counts 9-16); 42 U.S.C. § 1983 civil rights violations (Counts 17-24); and loss of consortium (Count 25).
On July 11, 2001, Defendants filed a motion to dismiss all counts under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted.
IV. DISCUSSION
A. Standard of Review for Rule 12(b)(6) MotionA Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A district court must accept any and all reasonable inferences derived from those facts. Unger v. Nat'l Residents Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991); Gutman v. Howard Sav. Bank, 748 F. Supp. 254, 260 (D.N.J. 1990). Further, the court must view all allegations in the Complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
It is not necessary for the plaintiff to plead evidence, and it is not necessary to plead the facts that serve as the basis for the claim. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977); In re Midlantic Corp. Shareholder Litigation, 758 F. Supp. 226, 230 (D.N.J. 1990). The question before the court is not whether plaintiffs will ultimately prevail; rather, it is whether they can prove any set of facts in support of their claims that would entitle them to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). "Although the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 150 n. 3 (1984) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Therefore, in deciding a motion to dismiss, a court should look to the face of the complaint and decide whether, taking all of the allegations of fact as true and construing them in a light most favorable to the nonmovant, plaintiff's allegations state a legal claim. Markowitz, 906 F.2d at 103. Only the allegations in the complaint, matters of public record, orders, and exhibits attached to the complaint matter, are taken into consideration.Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990).
Under the specificity standard of Rule 8(a), a pleading must contain (1) a short and plain statement of the court's jurisdiction: (2) a short and plain statement of the claim showing plaintiff is entitled to relief; and (3) a demand for judgment. Fed.R.Civ.P. 8(a). A cause of action brought under § 1983 is not subject to heightened pleading requirements; rather all that is required under Rule 8 is a short and plain statement of the claim. See Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 167 (1993).
A complaint must not be dismissed for failure to state a claim unless it appears beyond reasonable doubt that plaintiffs can prove no set of facts in support of their claim that would entitle them to relief. Moreover, if a motion to dismiss under 12(b)(6) is granted, then ordinarily the plaintiff should be provided an opportunity to amend the complaint if it appears that the deficiencies can be corrected by amendment. See 2A J. Moore, Moore's Federal Practice ¶¶ 12.07[2.-5], p. 12-99 (2d ed. 1994). Thus, a complaint will not be dismissed with prejudice under 12 (b)(6) or 8(a) unless it appears that the failure to state a claim cannot be cured by the filing of an amendment.
B. Motion to Dismiss Civil Rights Claims (Counts 17-24)
Defendants have moved under Rule 12(b)(6) to dismiss Plaintiffs' claim that Mr. Bailey's imprisonment violated his civil rights under § 1983 (counts 17-24). Since Plaintiffs have failed to name any "persons" under § 1983 as Defendants and because there can be no cause of action under § 1983 for negligent acts of prison officials, Defendants' motion to dismiss these counts will be granted. However, this dismissal is without prejudice to filing an Amended Complaint because there exists the possibility Plaintiffs may be able to identify a federal constitutional right which was violated by prison officials. See Berg v. County of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000).
1. Identification of "Persons"
Defendants first argue that Plaintiffs' suit should be dismissed because the Complaint fails to identify any defendant who qualifies as a "person" as required under the federal civil rights statute. Section 1983 specifically states:
[e]very 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 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. . . .See 42 U.S.C. § 1983 (emphasis added). Thus, the first element a plaintiff asserting a § 1983 claim must establish is that the conduct complained of was committed by "person" acting under state law. See Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994); Robb v. City of Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984).
The Supreme Court has held that neither a state nor state officials acting in their official capacities are "persons" under § 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 66, 71 (1989). See also Madden v. New Jersey St. Parole Bd., 438 F.2d 1189, 1190 (3d Cir. 1971) (holding that New Jersey State Parole Board is not a "person" for the purposes of § 1983);Knox v. Knox, Civ. A. No. 90-7750, 1991 WL 9358, at *3 (E.D. Pa. Jan. 28, 1991) (holding that New Jersey and Pennsylvania were not "persons" under § 1983).
Here, Plaintiffs' name as Defendants the State of New Jersey and various state entities which are not considered "persons" within the meaning of § 1983. Further, Plaintiffs' name "John Doe" individuals and entities as Defendants, rather than specific wrongdoers.
2. Identification of Actions that Rise Above Negligence
The Supreme Court in Davidson v. Cannon, 474 U.S. 344 (1986), held that negligence by prison officials does not fall under the protection of the Due Process Clause of the Fourteenth Amendment.Id. at 347-48. Specifically, the Court noted that an injury sustained by a prisoner caused by the negligence of a prison official "does not approach the sort of abusive government conduct that the Due Process Clause was designed to protect." Id. (citing Daniels v. Williams, 474 U.S. 327, 331-33 (1986)). Therefore, the Court held that because the negligence did not cause a depravation of a protected federal interest, no cause of action could be sustained under § 1983. Id. at 348.
Courts, however, have recognized claims under § 1983 where conduct by prison officials rises above merely negligent behavior. See id. (citing Curtis v. Everett, 489 F.2d 516 (3d Cir. 1973) (where prison officials allowed an attack on one prisoner by another to proceed); Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973) (where prison guards attack on prisoner was unjustified)). Here, Mr. Bailey claims that his civil rights were violated due to the careless, reckless, malicious, and gross negligence of the Defendants. (Compl., ¶¶ 213, 217, 221, 225, 229, 233, 241, 245.) However, Plaintiffs have failed to allege specific conduct on the part of state officials which would rise above the general negligence standard and constitute grounds for establishing liability under § 1983.
Therefore, Plaintiffs' counts 17-24 will be dismissed without prejudice to filing of an Amended Complaint within twenty (20) days. An Amended Complaint must specifically identify "persons" who qualify as defendants under § 1983 and must meet the standard articulated in Davidson by alleging specific conduct by those defendants that rises above mere negligence.
C. Motion to Dismiss Federal Consortium Claim (Count 25)
Defendants argue that Plaintiff Wanda Bailey's claim of loss of consortium claim should be dismissed for failure to state a claim because the Third Circuit has yet to recognize a federal cause of action for a spouse based upon a constitutional violation to the other spouse. (Defs.' Br., at 11.) It is well-settled that § 1983 rights are personal constitutional rights belonging to an individual. See O'Malley v. Brierley, 477 F.2d 785, 789 (3d Cir. 1973). As such, these rights are not derivative. Because there is no derivative claim under § 1983 for loss of consortium, Defendants' motion will be granted and Plaintiffs' loss of consortium claim under federal law is dismissed with prejudice.
It is not clear whether Count 25 purports to be state law claim or § 1983 claim. Because the parties have not raised the issue of loss of consortium as a state law claim, this Court will only address the merits of a federal loss of consortium claim at this time.
While neither the U.S. Supreme Court nor the Third Circuit has addressed this specific issue, district courts in this Circuit have consistently held that claims for loss of consortium are not cognizable under § 1983. See Garcia v. County of Bucks, 155 F. Supp.2d 259, 264 n. 5 (E.D. Pa. 2001); Ballas v. City of Reading, Civ. A. No. 00-2943, 2001 WL 73737 at *7 (E.D. Pa. Jan. 25, 2001); Danas v. Chapman Ford Sales, Inc., 120 F. Supp.2d 478, 489 (E.D. Pa. 2000); Wiers v. Barnes, 925 F. Supp. 1079, 1095-96 (D. Del. 1996); Quitmeyer v. SEPTA, 740 F. Supp. 363, 370 (E.D. Pa. 1990). In addition, other Circuit Courts have failed to recognize such a claim. See Niehus v. Liberio, 973 F.2d 526, 533-34 (7th Cir. 1992) (noting that loss of consortium is not depravation of liberty within the meeting of the Constitution); Berry v. City of Muskogee, 900 F.2d 1489, 1506-07 (10th Cir. 1990) (holding that plaintiffs were not entitled to loss of consortium damages because § 1983 creates a federal remedy only for the party injured); Stallworth v. City of Cleveland, 893 F.2d 830, 838 (6th Cir. 1990) (dismissing husband's request for recovery for loss of consortium under § 1983). See also Meaney v. Dever, 170 F. Supp.2d 46, 64 (D. Mass. 2001) (holding spouse could not raise cause of action for loss of consortium based solely on § 1983 violation).
Thus, the Court finds that Plaintiffs have failed to state an actionable claim under federal law for loss of consortium. Since this claim cannot be cured through amendment, Count 25, as it can be read as a federal claim arising under § 1983, will be dismissed with prejudice.
D. Pleading Defects to Be Cured
This Court finds that Plaintiffs' Complaint contains a variety of defects that will cause the remaining claims to be dismissed without prejudice. The Court will afford Plaintiffs twenty (20) days to file an Amended Complaint curing the following pleading defects.
1. Jurisdiction Requirements
A pleading must contain, inter alia, a short and plain statement of the court's jurisdiction. See Fed.R.Civ.P. 8(a)(1). Here, through an apparent oversight, Plaintiffs' Complaint fails to meet this basic requirement. (See Compl., ¶ 22.) Thus, in accordance with Rule 8(a), an Amended Complaint must correctly plead the jurisdiction this Court has over this matter.
2. Specificity Requirements
As noted above, under Rule 8(a), a complaint must be plead with at least a minimum amount of specificity to put the defendant on notice of the complaint against him. Fed.R.Civ.P. 8(a). While there is no heightened pleading requirement for a § 1983 complaint, a plaintiff nonetheless must meet the minimum standards of Rule 8. See Leatherman, 507 U.S. at 167. Vague allegations, without more, are not sufficient to satisfy the liberal standards of the federal rules. See Gann v. Del. St. Hosp., 543 F. Supp. 268, 274 (D. Del. 1982).
Despite the generous pleading requirements of Rule 8(a) andLeatherman, Plaintiffs' Complaint fails to meet the minimum specificity required for the state and federal causes of action which they plead. As Plaintiffs' correctly point out, a complaint is not required to be overly detailed. (Pls.' Opp. Br., at 19 (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, it is clear that some facts, not just bare allegations, are necessary. Specifically, Plaintiffs have failed under 8(a)(2) to state the precise factual basis for their claim, including the specific action or omission which caused Plaintiffs' harm and who they allege is responsible.
Therefore, in an Amended Complaint, Plaintiffs must plead all counts (state and federal causes of action) with greater specificity to meet the requirements of Rule 8(a) and give notice to all defendants.
3. Defects in State Law Claims (Counts 1-16, 25)
Plaintiffs allege several state law claims against Defendants, including gross negligence (counts 1-8), false imprisonment (count 9-16), and loss of consortium (count 25). These claims, however, fail to meet three requirements under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. ("NJTCA") and the Eleventh Amendment.
a. New Jersey Tort Claims Act
i. Pain and Suffering
Under the NJTCA, a plaintiff must meet the threshold requirement of "permanent" injury. N.J.S.A. 59:9-2d provides that "[n]o damages shall be awarded against a public entity or public employee for pain and suffering" except "in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment" and where medical expenses exceed $3,600.00. This provision has been interpreted by the New Jersey Supreme Court to require plaintiff to demonstrate objective, medical evidence of permanent injury to recover damages against a public entity.See Brooks v. Odom, 150 N.J. 395, 402-03, 696 A.2d 619 (1997).
Here, Plaintiffs fail to state any physical injury Mr. Bailey received as a result of Defendants' action or inaction. Rather, Plaintiffs claim Mr. Bailey "suffered great physical pain and mental anguish" without alleging any permanent loss of a bodily function, permanent disfigurement or dismemberment. (Compl. at ¶¶ 37, 54, 72, 90, 108, 126, 143, 160.) Further, while Plaintiffs refer vaguely to "physical trauma," nowhere does the Complaint allege that Mr. Bailey suffered an actual physical injury. (Id. at ¶¶ 168, 174, 180, 186, 192, 198, 204, 210.)
While it is possible for mental anguish to meet the NJTCA permanent injury requirement, the psychological injury must either (1) result from a permanent debilitating or disfiguring physical injury or (2) must be such that the psychological injury causes permanent disabling physical symptoms. See Randall v. State, 277 N.J. Super. 192, 196-97, 649 A.2d 408, 410-11 (1994);Srebnick v. State, 245 N.J. Super. 344, 351, 585 A.2d 950, 954 (1991). But see Collins v. Union County Jail, 150 N.J. 407, 413, 696 A.2d 625, 628 (1997) (finding that rape of a prisoner by a guard constituted such an aggravating circumstance that proof of permanent physical injury was not required to recover for pain and suffering due to post-traumatic stress disorder). Such an injury is not alleged in the Complaint.
Additionally, the Complaint does not allege that the treatment of Mr. Bailey's injuries exceed $3,6000, as required by the NJTCA. Instead, it claims that Plaintiffs were required "to spend large sums of money" to treat the alleged injuries. (Compl., ¶¶ 169, 175, 181, 187, 193, 199, 205, 211.) Thus, Plaintiffs' Complaint fails to meet the NJTCA permanent injury threshold for recovery of against the state or a state entity.
ii. Ninety Day Notice Requirement
To bring an claim against a public entity under the NJTCA, a plaintiff must file a notice of claim within ninety (90) days of the accrual of the cause of action. See N.J.S.A. 59:8-8(a). Failure to comply with the notice requirements of the NJTCA will bar a plaintiff from recovery, absent permission to file a late claim from a New Jersey Superior Court judge. See N.J.S.A. 59:8-9. See also Escalante v. Township of Cinnaminson, 661 A.2d 837, 283 N.J.Super. 244, 248-49 (1995).
There is no indication in the Complaint that Plaintiffs complied with the ninety day notice requirement of N.J.S.A 59:8-8(a) or sought permission for a late filing as provided under N.J.S.A. 59:8-9. An Amended Complaint must show compliance with the notice requirements of the NJTCA.
iii. Employees Acting within the Scope of Employment
The NJTCA establishes only limited liability for public entities. See N.J.S.A. 59:2-1a ("Except as otherwise provided by this act, a public entity is not liable for an injury. . . ."). Specifically, under N.J.S.A. 59:3-3, a public employee is not liable if he acts in good faith in the execution or enforcement of any law. N.J.S.A. 59:3-3. A public entity is not liable for the acts of its employees where those acts are carried out within the scope of employment. N.J.S.A. 59:2-2a. In addition, public entities are not liable for an employees' willful misconduct. N.J.S.A. 59:2-10.
Here, Plaintiffs plead no facts to indicate the "John Doe" Defendants, presumably individuals Plaintiffs will be able to name, acted outside the scope of their authority. Further, Plaintiffs plead no facts for which this Court could conclude that these Defendants acted willfully. As such, an Amended Claim must plead facts which plead Defendants acted outside the scope of their authority or would otherwise subject a public entity to liability under the NJTCA.
b. Eleventh Amendment
In addition to the requirements of state law, Plaintiffs fail to name a defendant to their state law claims that is not immune from a suit in federal court for monetary damages under the Eleventh Amendment of the Constitution.
The Eleventh Amendment, under the principal of sovereign immunity, bars a civil rights suit in federal court that names the state as a defendant. Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d. Cir. 1981) (citing Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam)). For the purposes of the Eleventh Amendment, a suit naming a state agency or department as a defendant is considered a suit against the state itself. Geis v. Bd. of Educ. of Parsippany-Troy Hills, 774 F.2d 575, 580(3d Cir. 1985) (citingFlorida Dep't of Health and Rehabilitative Servs. v. Florida Nursing Home Ass'n, 450 U.S. 147 (1981)).
Here, Plaintiffs name the State of New Jersey and several state entities as Defendants, including the New Jersey Department of Corrections, various prison facilities within the State of New Jersey, the New Jersey Parole Board, and unnamed "John Doe" entities. However, each of these entities is entitled to immunity from suit for monetary damages in federal court under the Eleventh Amendment. The claims against each of the named defendants must be dismissed with prejudice because these entities are immune from this suit for money damages in federal court due to the protection and immunity conferred upon the States by the Eleventh Amendment, and these state entities may not be named as defendants in any amended complaint.
Therefore, all state law claims (counts 1-16, 25) will be dismissed without prejudice to filing of an Amended Complaint within twenty days.
V. CONCLUSION
For the reasons discussed above, the Court grants in part Defendants' motion to dismiss Plaintiffs' Complaint for failure to state a claim upon which relief may be granted. The Court will dismiss Counts 1-24 and the state portion of Count 25 without prejudice to the filing of, within twenty (20) days of the date of this opinion and order, an Amended Complaint curing the deficiencies described in today's Opinion. Moreover, because the Court finds that Plaintiff Wanda Bailey cannot state an actionable federal loss of consortium claim under 42 U.S.C. § 1983, the federal part of Count 25 is dismissed with prejudice. The accompanying Order is entered.
ORDER
THIS MATTER having come before the Court on Defendants' motion to dismiss Plaintiffs' Complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P.; and the Court having considered the parties' submissions; and for good cause shown;IT IS this __ day of February 2002 hereby
ORDERED that Defendants' motion to dismiss Plaintiffs' Complaint for failure to state a claim upon which relief may be granted [Docket Item 4-1], and hereby is, GRANTED IN PART, DENIED IN PART as follows:
1. Plaintiffs' Counts 1 through 16 (state law claims of gross negligence and false imprisonment) are DISMISSED WITHOUT PREJUDICE ;
2. Plaintiffs' Counts 17 through 24 (violation of 42 U.S.C. § 1983) are DISMISSED WITHOUT PREJUDICE ;
3. Plaintiffs' Count 25 (loss of consortium under state law) is DISMISSED WITHOUT PREJUDICE ;
4. Plaintiffs' Count 25 (loss of consortium under § 1983) is DISMISSED WITH PREJUDICE ;
5. Plaintiffs may, within twenty (20) days of the date of this Order, file an Amended Complaint curing the defects in Counts 1-24 discussed in the Opinion accompanying this Order. Count 25, which is dismissed with prejudice, may not be reasserted. Plaintiffs must promptly serve the Amended Complaint upon each new defendant named. Further, a copy of the Amended Complaint shall be promptly delivered to Deputy Attorney General Todd D. Wachtle, Richard J. Hughes Justice Complex, P.O. Box 112, Trenton, NJ 08625.
6. Defendants shall answer or otherwise plead to the Amended Complaint within twenty (20) days of being served.