                                          PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                ________________
                       No. 17-2302
                    ________________

       *THE ESTATE OF ADRIANO ROMAN, JR.,
                                 Appellant

                             v.

                 CITY OF NEWARK;
     CITY OF NEWARK POLICE DEPARTMENT;
         ANTHONY CAMPOS, Chief of Police;
                RODGER C. MENDES;
    ALBANO FERREIRA; ONOFRE H. CABEZAS;
                   JOSEPH CUETO;
   FNU RESSUREICAO; FNU GOLPE; JOYCE HILL,
      Individually and in their capacity as police officers;
JOHN DOES 1-20, as fictitious names for presently unknown
        agents member commissioners and chiefs

    *(Amended pursuant to Clerk’s Order dated 1/25/18)
                  ________________
       Appeal from the United States District Court
                for the District of New Jersey
          (D.C. Civil Action No. 2-16-cv-01110)
       District Judge: Honorable Susan D. Wigenton
                     ________________
                   Argued June 12, 2018

             Before: AMBRO, JORDAN, and
              HARDIMAN, Circuit Judges

             (Opinion filed: January 29, 2019)

Justin D. Santagata       (Argued)
Kaufman Semeraro & Leibman
Two Executive Drive, Suite 530
Fort Lee, NJ 07024

      Counsel for Appellant

Kenyatta K. Stewart, Acting Corporation Counsel
Wilson D. Antoine         (Argued)
City of Newark–Department of Law
920 Broad Street, Room 316
Newark, NJ 07102

      Counsel for Appellees

                    ________________
                OPINION OF THE COURT
                   ________________

AMBRO, Circuit Judge

      Newark police officers forcibly entered and searched
the apartment of Adriano Roman’s girlfriend. App. at 386,
391, 459, 486. They arrested Roman, who was present in the
apartment, after they found drugs in a common area that was
shared by multiple tenants. Id. at 399, 479. Though he was
imprisoned for over six months and indicted for various drug




                              2
offenses, the New Jersey Superior Court found the search to
be unlawful and the charges were dropped.

        Roman now brings claims against the City of Newark
(which includes its Police Department) and various police
officers under 42 U.S.C. § 1983 (which gives a federal
remedy against state officials who, acting under color of state
law, deprive “any citizen of the United States . . . of any
rights, privileges, or immunities secured by the [U.S.]
Constitution and laws”) and New Jersey tort law. He alleges
the City had a pattern or practice of constitutional violations
and failed to train, supervise, and discipline its officers. He
also pleads an unlawful search claim against the officers and
contends they are liable for false imprisonment and malicious
prosecution. The District Court dismissed all of the claims
because they were inadequately pled. It also held the City did
not have an ongoing practice of unconstitutional searches and
arrests.
       While most of Roman’s claims do not withstand
dismissal, his § 1983 claims against the City do. He has
adequately alleged that its Police Department had a custom of
warrantless searches and false arrests. He also sufficiently
pled that the Department failed to train, supervise, and
discipline its officers, specifically with respect to “the
requirements of [the] Fourth Amendment and related law.”
App. at 160. Because Roman has stated a plausible claim
against the City, we vacate and remand the District Court’s
holding on municipal liability. We affirm in all other
respects.




                              3
I.     Background1
        On May 2, 2014, Roman and his girlfriend Tiffany
Reyes were watching a movie in her apartment’s bedroom.
App. at 386, 389, 395. Unbeknownst to them, four Newark
police officers had set up surveillance outside of her building
because of complaints about narcotics activity. Id. at 338.
The officers heard an argument between a man and a woman,
id. at 340-42, and decided to enter Reyes’ apartment without
a warrant, id. at 491.
       After they stepped inside the building, they discovered
that the front door of the apartment was locked. They also

       1
         As noted below, we must, while reviewing a ruling
on a motion to dismiss, view the facts in the light most
favorable to the plaintiff. Accordingly, without judging the
facts, we recount them as set out in the amended complaint
and the transcript of the suppression hearing referred to
below. Although Roman did not attach the transcript to the
amended complaint, the Defendants included it in their
motion to dismiss and told the District Court it was “capable
of judicial notice” and “integral to the [c]omplaint.” App. at
130. Thus we consider it at this stage.

       In any event, both the amended complaint and
transcript note that the officers forcibly entered the apartment,
assaulted Roman, and falsely charged him with possession of
a controlled substance. See Am. Compl. ¶¶ 17, 22, 28. Any
minor differences in the two documents do not affect our
analysis of his municipal liability claim. See infra Section
III.A (explaining that the events leading up to Roman’s
search and arrest are not relevant to the merits of his
municipal liability claim).




                               4
noticed Melissa Isaksem, Reyes’ friend, walking inside the
building. Id. at 417-20. They stopped and questioned her.
Id. at 417, 419. When she told them she was visiting Reyes,
id. at 419, they ordered her to knock on the apartment door
for them and threatened to arrest her if she did not comply, id.
at 419-20. Isaksem led them to the apartment and stood
directly in front of the peephole. Id. at 421. The police stood
to her left, presumably out of the peephole’s range. Id. An
officer knocked on her behalf. Id. Reyes asked who was at
the door, and Isaksem announced her presence. Id.
         Reyes opened the door, expecting to see only Isaksem.
Id. at 386, 400, 501. Instead, several officers rushed inside.
Id. at 387, 400, 501. They handcuffed Roman, Reyes, and
Isaksem, then demanded Roman “call someone to bring drugs
to the [apartment].” Am. Compl. ¶ 30 (internal quotation
marks omitted). If he did, they assured him they would
“‘make a deal’ and ‘let him go.’” Id. Roman refused the
officers’ demands, id. ¶ 33, and the police searched the
apartment. Eventually they found drugs in a common-area
space that was shared by multiple tenants and located in the
back of the apartment. App. at 399, 479. After seizing the
contraband, they yelled, “[W]e got you, motherfucker[;] . . .
you’re fucked now.” Id. at 427. Officer Rodger Mendes
walked back to Roman, “flipped him . . . on[]to his stomach
. . . , put his knee in his neck[,] and . . . said he was going to
get raped [in prison].” Id. at 428. Another officer informed
Roman’s father, who lived next door and observed parts of
the search, that his son “would go away for a long time.” Id.
at 454.
       Roman was arrested and imprisoned on the same night.
The officers filed a criminal complaint against him for
possession of, as well as intent to distribute, heroin and
cocaine. A New Jersey grand jury returned a six-count
indictment against him for the same offenses.




                                5
       In response, Roman moved to suppress the evidence
seized from the apartment. He argued the search was invalid
under the Fourth Amendment because the contraband was not
in plain view and thus a warrant was needed. The New Jersey
Superior Court agreed. It concluded the plain-view exception
did not apply and suppressed the contraband.
       The State of New Jersey did not appeal the ruling and
instead moved to dismiss the case. The Superior Court
granted its motion in December 2014 and issued a final
judgment of dismissal. Roman was released from prison
during the same month.
        Approximately a year later, Roman brought § 1983
and state-law tort claims against the City of Newark and
various police officers (for simplicity, the City and the
officers are jointly referred to as the “Defendants”). Among
other things, he alleged the City had a custom or policy of
unconstitutional searches, inadequate training, and poor
supervision and discipline.2 He also claimed the officers
unlawfully searched his apartment and were liable for the
torts of unlawful imprisonment and malicious prosecution.3


       2
           Roman’s amended complaint also included
allegations of discrimination of national origin in violation of
42 U.S.C. § 1983, civil conspiracy in violation of 42 U.S.C.
§ 1985, conspiracy to commit an unlawful search in violation
of the New Jersey Constitution and 42 U.S.C. § 1985, and
conspiracy to commit unlawful imprisonment in violation of
42 U.S.C. § 1985. We do not address these claims, as Roman
does not press them on appeal.
       3
         We construe Roman’s claim for unlawful
imprisonment as a claim for false imprisonment. Although




                               6
        The Defendants responded with a motion to dismiss.
The District Court sided with them, dismissing the complaint
in its entirety. It first addressed Roman’s claim against the
City and concluded the complaint “fail[ed] to plead . . . a
custom or policy” of unlawful searches and a failure to train
or supervise officers. Roman v. City of Newark, Civil Action
No. 16-1110-SDW-LDW, 2017 WL 436251, at *4 (D.N.J.
Jan. 30, 2017). Although the complaint alleged “a pattern or
practice of constitutional violations in areas including stop[]
and arrest practices, use of force, and theft by officers,” the
Court did not consider that sufficient to state a claim. Id.
(internal quotation marks omitted) (quoting Compl. ¶ 59).
Instead, it viewed those practices as predating Roman’s arrest
and observed that “the imposition of a [f]ederal [m]onitor
indicate[d] [the City’s] attempts to change any wrongful
policies or practices.” Id.
       The Court also held the unlawful search claim was
inadequately pled, as Roman did not “explain which
[Defendant(s)] committed the allegedly wrongful acts” during
the search and arrest. Id. Turning to the false imprisonment
and malicious prosecution claims, it construed them as state-
law claims and noted that plaintiffs must comply with the

New Jersey lacks a cause of action for “unlawful
imprisonment,” it has codified the elements of a false
imprisonment claim. See N.J. Stat. Ann. § 2C:13-3; Mallery
v. Erie R. Co., 92 A. 371, 371 (N.J. 1914) (“This appeal
brings up a judgment recovered by the respondent in an
action for false imprisonment. The declaration described
the unlawful imprisonment. . . .”); see also 8 American Law
of Torts § 27:1 (“False imprisonment, sometimes called
criminal restraint or unlawful imprisonment, is committed
when a defendant so restrains another person as to interfere
substantially with his liberty.”).




                              7
New Jersey Tort Claims Act before bringing them against
public entities. See N.J. Stat. Ann. § 59:8-1 et seq. Because
the “[c]omplaint nowhere allege[d]” Roman complied with
the Act’s procedures, the Court dismissed those claims as
well. Roman, 2017 WL 436251, at *6.

       The Court’s dismissal was without prejudice, and it
granted Roman leave to amend. He did so by omitting his
tort claims and retaining his other allegations in almost
identical form. The Court dismissed his amended complaint
and reaffirmed its ruling on reconsideration. This appeal
followed.4
II.   Jurisdiction and Standard of Review
       The District Court had federal-question and
supplemental jurisdiction per 28 U.S.C. §§ 1331 and 1367(a),
respectively, and we have jurisdiction over its final orders
under 28 U.S.C. § 1291.
       We review de novo its dismissal of a complaint under
Federal Rule of Civil Procedure 12(b)(6). See Phillips v.
County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008).
When conducting our review, “we accept all factual
allegations as true [and] construe the complaint in the light
most favorable to the plaintiff.” Warren Gen. Hosp. v.
Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (internal
quotation marks omitted). However, “we are not compelled
to accept unsupported conclusions and unwarranted
inferences . . . or a legal conclusion couched as a factual
allegation[.]” Baraka v. McGreevey, 481 F.3d 187, 195 (3d


      4
         Roman passed away while this appeal was pending,
and his estate brings the claims on his behalf. We do not
distinguish between Roman and his estate in this opinion.




                             8
Cir. 2007) (internal quotation marks omitted) (internal
citation omitted).

III.   Discussion
       A.    Roman sufficiently pled a municipal liability
             claim against Newark.

       As noted, Roman alleges the City is liable under
§ 1983 because it “engaged in a pattern or practice of
constitutional violations,” “failed to properly train and/or
supervise” its police force, and “failed to properly and
adequately control and discipline” its police officers.5 Am.
Compl. ¶¶ 68, 73-74. Before discussing the merits of his
claims, Roman directs our attention to the types of documents
we may consider on a motion to dismiss. He contends we
may review three sources that were provided to the District
Court: an article published in the Newark Star Ledger (the
“Star Ledger article”), a press release issued by the U.S.
Attorney’s Office (the “press release”), and a consent decree
between the United States and the City of Newark (the
“consent decree”). The Star Ledger article and press release
were referenced in the amended complaint, see id. ¶¶ 68-69
(including hyperlinks to both), but the consent decree was
attached to the Defendants’ motion to dismiss, see App. at
129. Roman also asks us to look at one other document: the
Department of Justice’s Report on the investigation of the
Newark Police Department (the “DOJ Report”). Although he

       5
           Roman brings his municipal liability claims under
§ 1983 and the New Jersey Civil Rights Act, N.J. Stat. Ann.
§ 10:6-1 et seq. Because the latter “is interpreted analogously
to . . . § 1983,” we consider his New Jersey Civil Rights Act
claims along with his § 1983 claim. Coles v. Carlini, 162 F.
Supp. 3d 380, 404 (D.N.J. 2015).




                              9
acknowledges the DOJ Report was never provided to the
District Court, he now claims it is integral to the pleadings.

       Though the Defendants dispute that we may consider
the DOJ Report, they add that we also cannot consider the
consent decree because “no relevant provisions of [it] . . .
were ever cited . . . to the District Court” and it is
inadmissible settlement material. Defendants’ Br. at 42.
They assert as well, without any citation to the record, that
Roman may not rely on the decree because he asked the
District Court to confine its analysis to the pleadings.
        We disagree with the Defendants’ view of the consent
decree. Although we examine the “complaint, exhibits
attached to the complaint, [and] matters of public record,”
Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010), we can
also consider documents “that a defendant attaches as an
exhibit to a motion to dismiss,” Pension Benefits Guar. Corp.
v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993), if they are “undisputedly authentic” and “the
[plaintiff’s] claims are based [on them],” Mayer, 605 F.3d at
230. That holding extends to settlement material because
plaintiffs “need not provide admissible proof at th[e] [motion-
to-dismiss] stage.” In re OSG Sec. Litig., 12 F. Supp. 3d 619,
622 (S.D.N.Y. 2014); see also In re MyFord Touch Consumer
Litig., 46 F. Supp. 3d 936, 961 n.5 (N.D. Cal. 2014) (same).
Moreover, the Supreme Court has been clear about the scope
of our review, stating we “must consider the complaint in its
entirety, as well as other sources [we] ordinarily examine
when ruling on . . . motions to dismiss, in particular,
documents incorporated into the complaint by reference, and
matters of which a court may take judicial notice.” Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)
(emphasis added).




                              10
       Here, although the consent decree was not attached to
Roman’s amended complaint, we are free to review its
contents for three reasons.6 First, the Defendants attached the
decree to their motion to dismiss and affirmed that it is
“capable of judicial notice” as an indisputably authentic
government document. App. at 129. Second, contrary to the
dissent’s assertion, the Defendants themselves argued (and
correctly) before the District Court that Roman’s claims were
based on the consent decree. Compare Dissenting Op. at 5
(“What is crucial is whether Roman’s complaint was ‘based’
on the consent decree.”), with App. at 129 (filing from
Defendants characterizing the consent decree as “integral to
the Complaint”). Third, the amended complaint cited, and the
District Court discussed, the DOJ investigation and federal
monitor that eventually led to the consent decree. See
Roman, 2017 WL 436251, at *4; see also Am. Compl. ¶¶ 68-
71. Thus it was especially important for the Court to have
considered the decree as well, given that it provides essential
context to Roman’s claims. That it did not was an abuse of
discretion.

        That said, we may not consider the DOJ Report at this
stage because it was not provided to the District Court in the
first instance by any party. Nor is it apparent that the Court
considered it sua sponte. See United States ex rel. Wilkins v.

      6
         Though the Defendants and our dissenting colleague
do not challenge the Star Ledger article or the press release,
we note that we consider them because they are referenced in
the amended complaint. See Tellabs, 551 U.S. at 322. As
Judge Jordan explains in his concurrence, however, Roman
does not need either document or the suppression hearing
transcript to state a municipal liability claim; the consent
decree gives his allegations enough plausibility to survive
dismissal.




                              11
United Health Grp., Inc., 659 F.3d 295, 302 (3d Cir. 2011)
(“Though we do not doubt the authenticity of
these documents, nevertheless we will not consider them
because the parties did not present them to the District Court
and we do not find any indication in the record that the Court
considered them on its own initiative.”). Hence it cannot
carry any weight in our analysis.
       Turning to the amended complaint, Roman claims the
City is liable for his unlawful search because it “failed to train
its officers in the use of search and seizure techniques,
probable cause, and/or methods to properly obtain a search
warrant.” Am. Compl. ¶ 95. He alleges the Newark Police
Department “engaged in a pattern or practice of constitutional
violations” and asserts the Department of Justice appointed a
federal monitor to oversee the reforms to which the City
consented. Id. ¶ 68. His allegations also touch on the City’s
failure to “control and discipline” its police force, id. ¶ 74,
and failure to “investigate . . . instances of . . . police
misconduct,” id. ¶ 81. He characterizes the City’s practices in
these areas as “tantamount to a[n] [unconstitutional] custom
and/or policy,” id. ¶ 82, thus indicating its “deliberate
indifference to [its citizens’ constitutional] rights,” id. ¶ 83.
       The Defendants respond that Roman has failed to
allege a municipal liability claim, as no part of the Star
Ledger article, press release, or consent decree references the
types of constitutional violations pled in the amended
complaint. They also contend the City had no notice “of any
pattern of constitutional violations with respect to forced
entry and searches of homes.” Defendants’ Br. at 50.
        To plead a municipal liability claim, a plaintiff must
allege that “a [local] government’s policy or custom . . .
inflict[ed] the injury” in question. Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 694 (1978). “Policy is made when a




                               12
decisionmaker possess[ing] final authority to establish
municipal policy with respect to the action issues an official
proclamation, policy, or edict.”         Andrews v. City of
Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (alteration
in original) (internal quotation marks omitted). “Custom, on
the other hand, can be proven by showing that a given course
of conduct, although not specifically endorsed or authorized
by law, is so well-settled and permanent as virtually to
constitute law.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d
Cir. 1990) (Becker, J.); see also Brown v. Muhlenberg Twp.,
269 F.3d 205, 215 (3d Cir. 2001) (“A custom . . . must have
the force of law by virtue of the persistent practices of state
[or municipal] officials.” (internal quotation marks omitted)).
        Although a policy or custom is necessary to plead a
municipal claim, it is not sufficient to survive a motion to
dismiss. A plaintiff must also allege that the policy or custom
was the “proximate cause” of his injuries. See Kneipp v.
Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996). He may do so by
demonstrating an “affirmative link” between the policy or
custom and the particular constitutional violation he alleges.
Bielevicz, 915 F.2d at 850 (internal quotation marks omitted).
This is done for a custom if Roman demonstrates that Newark
had knowledge of “similar unlawful conduct in the past, . . .
failed to take precautions against future violations, and that
[its] failure, at least in part, led to [his] injury.” Id. at 851.
Despite these requirements, Roman does not need to identify
a responsible decisionmaker in his pleadings. See id. at 850.
Nor is he required to prove that the custom had the City’s
formal approval. See Anela v. City of Wildwood, 790 F.2d
1063, 1067 (3d Cir. 1986).
      The pleading requirements are different for failure-to-
train claims because a plaintiff need not allege an
unconstitutional policy. See Reitz v. County of Bucks, 125
F.3d 139, 145 (3d Cir. 1997) (“[I]n the absence of an




                               13
unconstitutional policy, a municipality’s failure to properly
train its employees and officers can create an actionable
violation . . . under § 1983.”). Instead, he must demonstrate
that a city’s failure to train its employees “reflects a deliberate
or conscious choice.” Brown, 269 F.3d at 215 (internal
quotation marks omitted). For claims involving police
officers, the Supreme Court has held that the failure to train
“serve[s] as [a] basis for § 1983 liability only where [it] . . .
amounts to deliberate indifference to the rights of persons
with whom the police come into contact.” City of Canton v.
Harris, 489 U.S. 378, 388 (1989) (footnote omitted). A
plaintiff sufficiently pleads deliberate indifference by
showing that “(1) municipal policymakers know that
employees will confront a particular situation[,] (2) the
situation involves a difficult choice or a history of employees
mishandling[,] and (3) the wrong choice by an employee will
frequently cause deprivation of constitutional rights.” Doe v.
Luzerne County, 660 F.3d 169, 180 (3d Cir. 2011) (internal
quotation marks omitted) (quoting Carter v. City of
Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999)).

       In view of this case law, Roman has not pled a
municipal policy, as his amended complaint fails to refer to
“an official proclamation, policy, or [an] edict.” Andrews,
895 F.2d at 1480. However, he has sufficiently alleged a
custom of warrantless or nonconsensual searches. He has
also adequately pled that the City failed to train, supervise,
and discipline its police officers.7


       7
        We consider allegations of failure to train, supervise,
and discipline together because they fall under the same
species of municipal liability. See Rosalie Berger Levinson,
Who Will Supervise the Supervisors? Establishing Liability
for Failure to Train, Supervise, or Discipline in a Post-




                                14
        We start with Roman’s allegations on municipal
custom. He asserts the City had “a pattern or practice of
constitutional violations in areas including . . . arrest
practices.” App. at 137. He further contends it had notice of
this practice, as it received “complaints against officers
accused of . . . conducting improper searches and false
arrests.” Id. at 134. The amended complaint, along with the
press release and Star Ledger article, note that Newark was
under the supervision of a federal monitor after Roman’s
arrest. Am. Compl. ¶ 68; App. at 133, 137. According to the
press release, the monitor would oversee reforms in several
areas, including searches, arrests, and the intake and
investigation of misconduct complaints. App. at 137.
       The consent decree echoes these points. It covers the
same type of conduct Roman alleges, as it “prohibit[s]
officers from relying on information known to be materially
false or incorrect to justify a warrantless search . . . [or to]
effect[] an arrest.” Id. at 158; see also id. at 163 (mandating
officers to collect data on consent, the type of search, and “a
brief description of the facts creating probable cause”). The
decree also requires the Police Department to investigate
police misconduct, see generally id. at 184-92, with special
emphasis on allegations of criminal misconduct, false arrest,
planting evidence, and unlawful searches, see id. at 150, 186.
       While the consent decree was not in place during
Roman’s search and arrest, we may fairly infer that the
problems that led to it were occurring during the time of his
allegations and for some time before that. See id. at 133-34
(noting the investigation that resulted in the consent decree
and federal supervision began in May 2011 and ended in July
2014). With this mind, the decree fortifies Roman’s

Iqbal/Connick World, 47 Harv. C.R.-C.L. L. Rev. 273, 280
(2012).




                              15
allegations of unlawful custom because it acknowledges “a
pattern or practice of conduct by the Newark Police
[Department] that deprives individuals of rights, privileges,
and immunities secured by the Constitution.” Id. at 144.
When viewed in conjunction with the Star Ledger article, it
references the types of constitutional violations mentioned in
the amended complaint: warrantless searches, id. at 134, and
false arrests, id. at 158. These violations were widespread
and causally linked to Roman’s alleged injury, as the Police
Department was aware of them but “rare[ly] . . . acted” on
citizen complaints. Id. at 134 (discussing complaints of
“improper searches and false arrests”); see also Beck v. City
of Pittsburgh, 89 F.3d 966, 974 (3d Cir. 1996) (noting the
police department’s failure to act on complaints
“perpetuate[d] the City’s custom of acquiescing in the
excessive use of force by its police officers”). In light of
these allegations, “it is logical to assume that [the City’s]
continued official tolerance of repeated misconduct
facilitate[d] similar unlawful actions in the future,” including
the search and arrest of Roman. Bielevicz, 915 F.2d at 851. It
follows that he has adequately pled a municipal custom and
proximate causation under § 1983.
       We reach the same conclusion with respect to
Roman’s failure-to-train, failure-to-supervise, and failure-to-
discipline claims. To start, the Star Ledger article includes a
statement on police training from James Stewart, Jr., the head
of Newark’s police union. He conceded the “last training [he]
received” was in 1995, when he first joined the Newark
Police Department. App. at 134 (internal quotation marks
omitted). Moreover, Stewart is not some unreliable, rogue
officer—he is the head of the police union. Nor is his
experience isolated: the consent decree indicates Newark
police officers in general were not trained on “the
requirements of [the] Fourth Amendment and related law.”
Id. at 160 (discussing various Fourth Amendment doctrines




                              16
that should be included in police training, including “the
difference[] . . . between voluntary consent and mere
acquiescence to police authority”). The consent decree also
touches on supervisory review of unlawful searches and
arrests, requiring desk lieutenants and unit commanders to
review “searches that appear to be without legal justification”
and “arrests that are unsupported by probable cause.” Id. at
161. Finally, it provides disciplinary measures for police
officers who engage in “unlawful . . . searches” and “false
arrests.” Id. at 192. At the pleadings stage, a fair inference is
that the consent decree was necessary because of Department-
wide failures, not because one officer was last trained in
1995.
        This is enough to prove municipal liability because the
City “[knew] to a moral certainty” that its officers would need
to conduct searches. Harris, 489 U.S. at 390 n.10. Yet in at
least one instance it failed to provide training since 1995, see
App. at 134, and per the decree its training did not cover the
basics of the Fourth Amendment, see id. at 158-61. The City
also did not discipline officers for “sustained allegations of
misconduct,” including “prior violations” and other
“aggravating factors.” Id. at 192-93. In view of these
deficiencies, one could reasonably infer that the City’s
inaction “reflected [its] ‘deliberate indifference’” to Roman’s
Fourth Amendment rights. Bd. of Cty. Comm’rs v. Brown,
520 U.S. 397, 409 (1997); cf. Harris, 489 U.S. at 390 n.10
(“[C]ity policymakers know to a moral certainty that their
police officers will be required to arrest fleeing felons. . . .
Thus, the need to train officers in the constitutional
limitations on the use of deadly force . . . can be said to be ‘so
obvious’ . . . that failure to do so could properly be
characterized as ‘deliberate indifference’ to constitutional
rights.” (internal citation omitted)). One could also infer that
the City’s failure to establish an adequate training program
contributed to the specific constitutional violations alleged in




                               17
the amended complaint. See Brown, 520 U.S. at 409-10
(“The likelihood that the situation will recur and the
predictability that an officer lacking specific tools to handle
that situation will violate citizens’ rights . . . may also support
an inference of causation.”); cf. A.M. ex rel. J.M.K. v. Luzerne
Cty. Juvenile Detention Ctr., 372 F.3d 572, 582 (3d Cir.
2004) (reversing the District Court’s grant of summary
judgment in favor of a municipality because of “unrebutted
testimony” that its juvenile detention center “did not have an
adequate training program”).
        We conclude that the allegations regarding Newark’s
failure to train, supervise, and discipline are strong enough to
survive a motion to dismiss. See Am. Compl. ¶¶ 63-98.
Among them are: a failure to train officers on obtaining a
search warrant, id. ¶ 67, and on “issuing truthful investigative
reports,” id. ¶ 77; a failure to supervise and manage officers,
id. ¶¶ 67-68; and a failure to discipline officers, id. ¶ 74, first
by “refus[ing]” to create a well-run Internal Affairs
Department, id. ¶ 81, and second by “inadequately
investigating, if investigating at all, citizens’ complaints
regarding illegal search and seizure, id. ¶ 84. The result was a
“complete lack of accountability” and of “record keeping,” id.
¶ 92, leading to a culture in which officers “knew there would
be no professional consequences for their action[s],” id. ¶ 94.
As the amended complaint alleges, it should come as no
surprise that these conditions led to a federal investigation.
See id. ¶ 89.
       The dissent’s attempt to distinguish the consent decree
is unpersuasive.     First, it misperceives the decree as
concerning only police interactions with “pedestrians or the
occupants of vehicles,” not home searches. Dissenting Op. at
7 (“The consent decree says nothing about arrests and
searches without consent that occur at residences . . .”). In
fact, one concern of the decree was false arrests, see App. at




                                18
158, which can occur both at home and on the street. And the
decree does concern home searches: it sets parameters
officers must follow before searching “a home based upon
consent.” Id. Although Reyes by no means consented to the
search here, she willingly opened her apartment door only
because the police had used her friend Isaksem as a Trojan
horse to gain entry.
        Second, the dissent believes that the consent decree
cannot help Roman’s case because Roman was Hispanic. See
Dissenting Op. at 7 (“[T]he decree addressed police practices
that disparately impacted the black community. But that
racial disparity did not apply to Roman, who was Hispanic.”).
To the contrary, the consent decree includes an entire section
entitled “Bias-Free Policing,” see App. at 165-67, that never
restricts itself to bias against the black community. Instead, it
provides that police officers must “operate without bias based
on any demographic category,” id. at 166 (emphasis added),
and specifically forbids officers from discriminating based on
“proxies for demographic category” such as “language
ability,” id. at 167. Plainly, the consent decree was meant to
protect all Newark residents, including Hispanic residents.
        Further, we find it difficult to square the dissent’s
reasoning with the record evidence discussing the City’s
troubling practices around the time of Roman’s search and
arrest. See, e.g., id. at 134 (stating only one complaint out of
261 filed was sustained by department investigators); id. at
158 (prohibiting officers from relying on materially false
information to justify a warrantless search); id. at 160
(requiring police officers to be trained on “the requirements
of [the] Fourth Amendment and related law”); id. at 161
(mandating supervisory review of “searches that appear to be
without legal justification” and “arrests that are unsupported
by probable cause”).




                               19
        Unable to distinguish the consent decree outright, the
dissent offers two narrow readings of the decree. First, it
maintains that the decree can speak only to the Police
Department’s obligations going forward rather than shed any
light whatsoever on the “status quo” within the Department
before federal intervention. See Dissenting Op. at 10 (stating
that the decree does not provide “any detail as to the status
quo it addressed”). The dissent concedes that the DOJ
probably did not enter into the consent decree because it was
impressed with Newark’s policing practices and wanted to
encourage the City to keep up the good work. Id. At this
stage, we must draw not only such obvious inferences, but
also all reasonable ones, in favor of Roman. Thus we agree
with the dissent on the “clear” difference between “agreeing
to train more” (the consent decree on its face) and “agreeing
that prior training was constitutionally inadequate” (the way
in which the decree supports Roman’s claims). Id. We
simply believe that a reasonable inference bridges the gap in
this case. Indeed, no inference is needed because Roman
made the link explicit in the amended complaint. See Am.
Compl. ¶ 89 (stating that the Police Department’s “deliberate
indifference to citizens’ rights is what led to the imposition of
a [f]ederal [m]onitor program . . . .”).

        Second, the dissent believes that the consent decree’s
training requirements, from which we can reasonably infer
inadequate training before the decree, simply amount to
“additional training” in, for instance, the requirements of the
Fourth Amendment. Dissenting Op. at 10. To the contrary,
the consent decree was meant to take the Newark Police
Department back to basics: Do not lie on a warrant
application or to justify a warrantless search, App. at 158;
investigate police activities that appear to have lacked legal
justification, id. at 161; and at all times follow the
requirements of the Fourth Amendment, id. at 160.




                               20
        The theme of the dissent appears to be that we are
refashioning the amended complaint. It claims we are
vacating the District Court’s decision based on facts and
arguments that were not presented to it. But as discussed
above, we are engaged in de novo review of the adequacy of
the amended complaint in light of documents that were before
the District Court and that informed its allegations. See supra
pp. 8-10. Additionally, and to repeat, the specific events
leading up to Roman’s search and arrest are not relevant to
the merits of his municipal liability claim. Thus we are not
vacating the Court’s decision for excluding these facts from
its analysis.
         Rather, our focus is directed to Newark’s practice at
the time of Roman’s search and arrest. The Court had notice
of them, as it acknowledged that Roman alleged “a ‘pattern or
practice of constitutional violations in areas including stop[]
and arrest practices, use of force, and theft by officers.’”
Roman, 2017 WL 436251, at *4 (quoting Compl. ¶ 59).
Nonetheless it dismissed the complaint and amended
complaint because it viewed the City as attempting to change
its practices. Even if the record can be read that way—and
we doubt that8—the District Court’s rationale has the wrong


       8
          The record does not support the Court’s inferences,
as it tells us the DOJ’s investigation was not completed until
July 2014, see App. at 137; the Government did not solicit
applications for a federal monitor until February 2015, see id.;
and the consent decree was not final until May 2016, see id.
at 215. By contrast, Roman was arrested in May 2014 and
imprisoned until December of that year. As such, it is
plausible that Newark’s practices were ongoing when police
officers searched and arrested him. It is also reasonable to
infer that the City’s corrective measures postdated the arrest.




                              21
focus. The question is not whether some evidence can be
viewed as supporting the City. It is whether, viewing the
pleadings and properly associated documents in the light most
favorable to Roman, there are claims plausible enough to
withstand a motion to dismiss. We think there is one—the
municipal liability claim. And the Court did not have to look
beyond the amended complaint and supporting documents to
glean these facts.

       In sum, Roman’s municipal liability claim survives
dismissal based on the record that was before the District
Court. Because the Court reached the opposite conclusion,
we part with its holding. Thus we vacate and remand this
portion of its decision.
      B.     The District Court correctly dismissed the
             false    imprisonment    and     malicious
             prosecution claims because they were not
             pled under § 1983.

       Roman alleges the Defendants are also liable for false
imprisonment and malicious prosecution. As noted, the
District Court construed these claims as state-law claims. It
dismissed them because Roman did not comply with the New
Jersey Tort Claims Act’s procedural requirements for
bringing claims against public entities and public employees.
See N.J. Stat. Ann. § 59:8-1 et seq.
      On appeal, Roman contends the Court erred in
dismissing his claims because they were pled under § 1983.
The Defendants counter that both claims were presented as



Hence we do not consider the City’s corrective measures to
be enough to defeat Roman’s allegations.




                             22
state-law tort claims. They also point out that Roman omitted
them from his amended complaint.9

       As a preliminary matter, the Defendants correctly
observe that false imprisonment and malicious prosecution
are not in the amended complaint. Hence we must first
decide if Roman has waived his right to challenge their
dismissal on appeal. If we conclude that waiver does not
apply, we then determine if the District Court correctly
construed them as state-law tort claims.
       We have not applied a strict rule in favor of waiver in
this context. Instead, we have allowed “plaintiffs to appeal
dismissals despite amended pleadings that omit the dismissed
claim[,] provided repleading the particular cause of action
would have been futile.” United States ex rel. Atkinson v. Pa.
Shipbuilding Co., 473 F.3d 506, 516 (3d Cir. 2007) (emphasis
in original) (footnote omitted). “Repleading is futile when
the dismissal was ‘on the merits.’ A dismissal is on the
merits when it is with prejudice or based on some legal
barrier other than want of specificity or particularity.” Id. If
a court is uncertain, “doubt[] should be resolved against the
party asserting waiver.” Id. at 517 (emphasis in original).

       9
         At oral argument, Roman’s counsel stated the false
imprisonment claim was repled in Count 13 of the amended
complaint even though that count alleges “conspiracy to
commit unlawful imprisonment . . . [in violation of] 42
U.S.C. § 1985.” App. at 278 (emphasis added); see Audio
Recording of Oral Argument held June 12, 2018 at 11:39 to
12:06 (http://www2.ca3.uscourts.gov/oralargument/audio/17-
2302TheEstateofAdrianoRomanJrvCityofNewarketal.mp3).
We do not consider this contention, as it was raised for the
first time at oral argument and thus is waived. See In re
Grand Jury, 635 F.3d 101, 105 n.4 (3d Cir. 2011).




                              23
       Here the District Court analyzed both claims on legal
grounds. It observed that they were based on the New Jersey
Tort Claims Act, which allows individuals to bring tort claims
against public entities and employees after complying with
certain procedural and notice requirements, see Tripo v.
Robert Wood Johnson Med. Ctr., 845 F. Supp. 2d 621, 626-
27 (D.N.J. 2012) (summarizing the Act’s procedures for suing
a public entity or employee). It concluded Roman did not
follow these requirements and thus dismissed the claims.
         Although the Court was guided by procedural
concerns, its dismissal was on the merits. The Tort Claims
Act bars claims against public entities and employees if a
plaintiff waits more than two years to file a “notice of claim.”
See N.J. Stat. Ann. § 59:8-8(b). The two-year mark is
measured from the day the claim accrues (i.e., the day on
which the public entity or employee allegedly harmed the
plaintiff). In our case, because Roman’s claims accrued in
May 2014, he had until May 2016 to file a notice of claim.
As the Court noted, however, he did not file any type of
notice during the two-year period. See Roman, 2017 WL
436251, at *6 (observing that, as of January 31, 2017, the date
on which the Court dismissed the complaint, Roman had not
filed a notice). Thus Roman’s procedural error morphed into
a dismissal on the merits, see N.J. Stat. Ann. § 59:8-8(b)
(“The claimant shall be forever barred from recovering
against a public entity or public employee if . . . [t]wo years
have elapsed since the accrual of the claim.”), and he may
appeal the District Court’s decision on his false imprisonment
and malicious prosecution claims, see Atkinson, 473 F.3d at
516-17.
       In light of this conclusion, we must focus on the
pleadings and decide if Roman’s claims are based on § 1983.
If we look to the complaint, it suggests both false
imprisonment and malicious prosecution are state-law tort




                              24
claims. It never identifies them as § 1983 or federal claims.
Rather, it presents them generically, following a series of
other state-law tort claims. See, e.g., App. at 44 (“intentional
infliction of emotional distress”); id. at 46 (“negligent
infliction of emotional distress”); id. at 47 (“assault and
battery”); id. at 49 (“unlawful imprisonment”); id. at 51
(“malicious prosecution”). This indicates to us that Roman
pled both claims as state-law claims, not federal claims.
While the unlawful (i.e., false) imprisonment claim does note
that the Defendants “restrict[ed] [Roman’s] constitutionally
guaranteed rights of liberty and freedom of movement,” it is
silent as to whether it refers to the United States or New
Jersey Constitution. Compl. ¶ 114. This is too facile to
imply the former when but a few identifying words would do.
The default is New Jersey law, which defines false
imprisonment as “an[y] unlawful restraint that interferes with
a victim’s liberty” and requires “[n]o further wrongful
purpose” for a prima facie showing. State v. Savage, 799
A.2d 477, 494 (N.J. 2009).
       Accordingly, the District Court correctly construed the
false imprisonment and malicious prosecution claims as state-
law tort claims, and we affirm this portion of its holding.10
       C.     The doctrines of res judicata, collateral
              estoppel, and judicial estoppel do not require
              us to dismiss Roman’s § 1983 claims.
       Finally, the Defendants invoke the doctrines of res
judicata, collateral estoppel, and judicial estoppel. According


       10
           We also affirm the dismissal of Roman’s unlawful-
search claims because they were not adequately pled. We do
not opine on whether a plaintiff may allege joint and several
liability in connection with an unlawful-search claim.




                              25
to them, each doctrine compels us to dismiss Roman’s § 1983
claims.

        We start with res judicata. The Defendants contend it
bars Roman’s claims because “the criminal matter and the
suppression hearing were based on the exact same facts” as
those alleged in Roman’s pleadings. Defendants’ Br. at 64.
In their view, criminal proceedings are enough to preclude a
civil suit seeking damages under § 1983.

       We disagree. “A party seeking to invoke res judicata
must establish three elements: (1) a final judgment on the
merits in a prior suit involving (2) the same parties or their
privies and (3) a subsequent suit based on the same cause of
action.” Duhaney v. Att’y Gen., 621 F.3d 340, 347 (3d Cir.
2010) (internal quotation marks omitted). Roman’s suit is not
based on the same cause of action as the criminal complaint
and suppression hearing. Nor are his current claims of the
type “that could have been brought” in the earlier criminal
proceeding. Id. (internal quotation marks omitted); see also
Helvering v. Mitchell, 303 U.S. 391, 397 (1938) (“The
difference in degree of the burden of proof in criminal and
civil cases precludes application of the doctrine of res
judicata.”). New Jersey initiated the criminal case. Roman
was not at liberty to assert any claims except for defenses
against the prosecution’s case-in-chief. See Leather v. Eyck,
180 F.3d 420, 425 (2d Cir. 1999) (“[B]ecause the nature of
the prior state[-]court proceeding was such that [the
Appellant] could not have sought damages for his alleged
constitutional injuries (while defending himself on [a
criminal] charge . . . ), res judicata does not bar his federal §
1983 suit for damages.”). Moreover, he was not free to raise
his § 1983 claims in the same criminal case; indeed, he could
not bring them until the criminal proceeding concluded. See
Heck v. Humphrey, 512 U.S. 477, 486 (1994) (“[T]he . . .
principle that civil tort actions are not appropriate vehicles for




                               26
challenging the validity of outstanding criminal judgments
applies to § 1983 damages actions that necessarily require the
plaintiff to prove the unlawfulness of his conviction or
confinement. . . .”). Accordingly, res judicata does not bar
Roman’s claims.

        Moving on to collateral estoppel, the Defendants argue
it (1) absolves Officer Mendes of liability because the
Superior Court made a factual finding that Roman possessed
the contraband that was seized from the apartment, (2)
absolves Sergeant Joyce Hill because nothing in the Superior
Court’s transcript indicates she was present for the search and
arrest, and (3) absolves the other named defendants because
the Superior Court’s transcript suggests they only handled the
contraband. According to the Defendants, the Superior Court
decided all of these issues in their favor during the
suppression hearing. See Bd. of Trs. of Trucking Emps. of N.
Jersey Welfare Fund, Inc. v. Centra, 983 F.2d 495, 505 (3d
Cir. 1992) (stating a party is collaterally estopped from
litigating a specific issue if, among other things, “[an]
identical issue was decided in a prior adjudication”). Again
we disagree. Contrary to the Defendants’ assertions, the
Superior Court never decided any of these issues during the
suppression hearing. While it did find that Roman had a
possessory interest in the apartment, that is not enough for us
to conclude that he had actual or constructive possession over
the contraband. Collateral estoppel is not appropriate in this
context.
        Last, the Defendants assert that judicial estoppel
precludes Roman’s claims because he admitted that (1) drugs
were found in the apartment, (2) he had a possessory interest
in the apartment, (3) Officer Mendes was the only officer who
initiated the prosecution, and (4) the remaining officers only
handled the contraband and had no other roles. They insist
these concessions “are sufficient to establish that [Roman’s]




                              27
arrest and prosecution arise out of his possession of
incriminating evidence[.]” Defendants’ Br. at 65. As noted,
“[j]udicial estoppel, sometimes called the ‘doctrine against
the assertion of inconsistent positions,’ is a judge-made
doctrine that . . . prevent[s] a litigant from asserting a position
inconsistent with one that []he has previously asserted . . . in a
previous proceeding.” Ryan Operations G.P., 81 F.3d at 358.
This doctrine is not in play here, as Roman never stipulated
that Officer Mendes was the only officer to bring the
prosecution or that the remaining officers only handled the
contraband. While the Court found that Roman had a
possessory interest in the apartment, that interest (we repeat)
is not enough to establish that he possessed the contraband.
Accordingly, judicial estoppel does not require us to dismiss
Roman’s claims.
                 *       *      *       *      *
       Roman has sufficiently alleged a municipal liability
claim against the City of Newark under § 1983. He cites
various examples of inadequate police training, poor police
discipline, and unheeded citizen complaints. He tells us
certain police officers did not receive training for over 20
years, and their training did not cover the basic requirements
of the Fourth Amendment. In his pleadings, he states the
Newark Police Department did not discipline officers who
engaged in police misconduct, Am. Compl. ¶¶ 84-86,
including unlawful searches and false arrests, App. at 134.
He also notes the public filed formal complaints about
improper searches and false arrests that were disregarded
almost wholesale. Id. These alleged practices were ongoing
when Roman’s search and arrest occurred, and the City had
notice of them at that time. While the proof developed to
support these allegations may or may not be persuasive to a
finder of fact, they are enough to survive dismissal at this
stage. Based on this conclusion, we part with the District




                                28
Court’s holding that Roman failed to state a § 1983 claim
against the City. Though we affirm otherwise, we vacate and
remand its decision on municipal liability.




                            29
JORDAN, Circuit Judge, concurring.

       I join the majority opinion and write separately only to
note that, even if we were to ignore the suppression hearing
transcript and the press release and the Star Ledger article,
there is still a sound basis to conclude that Roman has stated
plausible claims for municipal liability. Our panel is united in
understanding that we can properly consider the consent decree
because it was provided to the District Court and was
referenced and relied upon in Roman’s amended complaint.
Those two sources – the consent decree and the amended
complaint – are sufficient to overcome the motion to dismiss
the claims against the City of Newark.

       The consent decree supports the allegations in the
amended complaint in a number of respects. For example, it
expressly prohibits Newark Police officers “from relying on
information known to be materially false or incorrect to justify
a warrantless search or to seek a search warrant[.]” (App. at
158). A fair inference from that prohibition is that it was
needed precisely because the police were often relying on false
information to justify warrantless searches. That inference
bolsters Roman’s allegation that “[n]o drugs were found in
[his] possession” and yet the police “arrested [him] and falsely
charged him with possession of a controlled dangerous
substance[.]” (App. at 263 ¶¶ 28-29).

       In another instance, the consent decree suggests that
there has been a lack of training and supervision in the Newark
Police Department. To remedy that deficiency, the consent
decree requires the Department to “provide all officers with at
least 16 hours of training on stops, searches, arrests, ... [and]




                               1
training ... in ... Fourth Amendment issues” as well as
mandating “desk lieutenant[s] or unit commander[s] [to]
review each arrest report by officers under their command[.]”
(App. at 159-61). The inference that there was inadequate
training supports Roman’s allegation that the Department’s
officers, “through their actions, inactions, course of conduct,
poor or non-existent training and deficient supervision[,]
caused ... [the] illegal deprivation of [his] liberty[.]” (App. at
265 ¶ 48).

       As a final example, the consent decree says that the
Department must “conduct integrity audits and compliance
reviews to identify and investigate all officers who have
engaged in misconduct including unlawful ... searches[] and
seizures[.]” (App. at 192). The need for such audits and
reviews lends plausibility to Roman’s allegation that the “City
had a custom and practice of inadequately investigating ...
citizens’ complaints regarding illegal search and seizure[.]”
(App. at 272 ¶ 84).

       Thus, looking only at the amended complaint together
with the consent decree, and giving Roman the benefit of all
favorable inferences, as we must at this stage, there is a
sufficient basis to say that Roman has stated plausible claims
for municipal liability under 42 U.S.C. § 1983. Dismissal of
those claims was therefore an error.




                                2
HARDIMAN, Circuit Judge, concurring in part and dissenting
in part.

       The District Court dismissed Roman’s case after giving
him two opportunities to state a claim upon which relief may
be granted and after reconsidering its order of dismissal. Based
on the record presented to it, the District Court’s decision was
correct and should be affirmed as to all but one of Roman’s
claims (the municipal liability claim for failure to train,
supervise, or discipline).

        The Majority vacates part of the District Court’s
judgment by reciting facts found nowhere in Roman’s
amended complaint and by adding facts of its own creation that
were neither pleaded nor argued to the District Court with
sufficient specificity. The Majority’s deviation from standard
civil practice and procedure compels this partial dissent.

                               I

       This dissent results principally from a disagreement
with my colleagues about which facts were properly before the
District Court. First, the Majority proffers a narrative that
Roman never gave the District Court and which has no
relevance to the claims it revives. This Court need not (and
should not) recite these “facts” and “background” as true.
Second, Roman did not sufficiently plead a municipal liability
claim based on Newark’s alleged pattern or practice of Fourth
Amendment violations. If the facts as pleaded (or subject to
judicial notice) were as the Majority recites them, I would
agree that Roman stated a claim for relief. But since the actual
facts before the District Court were quite different from those
enunciated by the Majority, the District Court did not err by
dismissing this claim.




                               1
        Despite these disagreements with my colleagues, I
agree with them that Roman’s amended complaint sufficiently
stated a municipal liability claim for failure to train, supervise,
or discipline. Yet I cannot agree with their reasoning in toto
because we should not extrapolate—and the District Court did
not err by declining to extrapolate—from extraneous
documents (like the consent decree Roman never provided nor
cited to the District Court) to reach that conclusion. This single
claim should be resuscitated, but only based on the face of the
amended complaint.

                                A

        The Majority purports to recount the facts of this case
“as set out in the amended complaint and the transcript of the
[state court] suppression hearing.” Maj. Op. 4 n.1. Yet precious
few of those facts were actually pleaded, primarily because the
state court transcript was not proffered to the District Court by
Roman. Moreover, the Majority’s narrative of Roman’s
alleged mistreatment has effectively no bearing on the
municipal liability claims it revives.

       The lion’s share of the troubling facts recited by the
Majority were taken from sources other than Roman’s
amended complaint. Those sources—including the state-court
proceedings and subsequent briefs—paint a picture the District
Court never observed while considering the motion to dismiss.
In truth, the amended complaint says nothing about how the
investigation began, or the surveillance of Roman’s apartment,
or the initial interaction between police and Melissa Isaksem,
or the officers’ use of Isaksem as a decoy to gain entry into the
apartment, or the fact that drugs were seized from a common
area, or the expletives and threats that specific officers yelled
at both Roman and his father, or Officer Mendes’s use of




                                2
physical force. Unlike those graphic and specific facts the
Majority extracts, the amended complaint is replete with
conclusory and generalized assertions. See App. 261–63.

        Here are some examples of the Majority’s approach:
Instead of averring that Officer Mendes flipped Roman on his
stomach and put a knee in Roman’s neck, Maj. Op. 5, the
amended complaint merely states that “[t]he Defendant
Officers and Defendant John Does 1–20 (fictitious names)
illegally assaulted the Plaintiff, throwing him against a wall
and handcuffing him,” App. 262. And rather than recounting a
detailed plan to initiate an illegal search that included using an
unwitting friend as a decoy, Maj. Op. 5, the amended
complaint states only that “‘Defendant Officers’ . . . and
Defendant John Does 1–20 (fictitious names), after having the
opportunity to observe that the Plaintiff was a person of Latino
descent, initiated an illegal search and seizure of the Plaintiff’s
residence,” App. 261.

        Now on appeal, for the first time Roman cites facts
establishing how the police gained entry into the apartment, the
threatening words they spoke, and the actions of Officer
Mendes. Roman Br. 10–12. We should not endorse this
unpleaded narrative, nor suggest the District Court erred by
failing to manufacture it in the first place.

                                B

       The Majority concludes that Roman’s amended
complaint (supplemented by the consent decree, a news article,
and a press release) contains enough facts to make plausible
his claims that his injuries were proximately caused by
Newark’s: (1) pattern or practice of constitutional violations in
the area of arrest practices; and (2) failure to adequately train,




                                3
supervise, or discipline its officers. Maj. Op. 15–16. The first
conclusion is unwarranted. And while the second conclusion is
correct, the Majority still errs in its reliance on a document
Roman never cited and inferential leaps that Roman’s
pleadings themselves do not admit.

                               1

        On its face, the amended complaint contains very few
facts related to Roman’s arrest or Newark’s alleged pattern or
practice of rights violations, and what it does contain amount
only to conclusory statements. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (noting that a court’s duty to “accept as true
all of the allegations contained in a complaint is inapplicable
to legal conclusions,” and that “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice”). When we excise from the
Majority’s narrative all facts that were neither pleaded nor
presented to the District Court and the complaints’ legal
conclusions, it becomes clear that the District Court did not err
by twice deeming Roman’s complaint deficient regarding a
pattern or practice of rights violations.

       This Court should not fault the trial judge for failing to
take cognizance of facts or arguments never presented to her,
especially here, where Roman chose not to include in his
amended pleading facts that could have been gleaned from
Defendants’ first motion to dismiss and the consent decree
attached to it. See Snyder v. Pascack Valley Hosp., 303 F.3d
271, 276 (3d Cir. 2002) (noting that “[a]n amended complaint
supercedes the original version in providing the blueprint for
the future course of a lawsuit”).




                               4
      The Majority primarily (and incorrectly) relies on that
consent decree to buttress Roman’s pattern-or-practice claim.
Although the District Court could take notice of the consent
decree’s existence, it’s quite another matter to hold it
accountable for not accepting as true everything its contents
could possibly imply—especially when Roman neither
pleaded nor relied upon the decree’s contents.

        What is crucial is whether Roman’s complaint was
“based” on the consent decree.1 In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). Only to the
extent the Majority refashions Roman’s pattern-or-practice
claim such that it is now based on implausible inferences from
the consent decree is it “based on” the consent decree. For
Roman did not explicitly reference, quote, or rely on the
document in his amended complaint—even after the City
provided it. The amended complaint merely references the
decree’s announcement by the Department of Justice months
after his arrest.2 See App. 270 ¶ 68. The District Court, though
it must draw all reasonable inferences in Roman’s favor, had
no obligation to abstract facts or inferences or claims Roman


       1
        His appellate briefs’ references to the document are
not determinative, no matter how many times they cite the
decree.
       2
         This timing further complicates the Majority’s reliance
on the consent decree. The decree’s announcement months
after Roman’s arrest requires yet another “infer[ence] that the
problems that led to it were occurring during the time of his
allegations and for some time before that.” Maj. Op. 15. It also
requires an inference that all of the City’s “corrective measures
postdated the arrest.” Id. at 21 n.8.




                               5
chose not to plead.3 Instead, he was the master of his own
complaint. See Judon v. Travelers Prop. Cas. Co. of Am., 773
F.3d 495, 505 (3d Cir. 2014).

       And even if we accept as true all the consent decree
contains, Roman’s arrest was not plausibly part of the pattern
or practice of rights violations the decree addressed, except
perhaps at the highest level of generality.4 For starters, the
decree addressed police stops and arrests of pedestrians or the
occupants of vehicles. See App. 79 (detailing the pattern or
practice investigated by the DOJ that led to the consent

       3
           The document’s undisputed authenticity as a
government document says nothing about the reasonableness
of the inferences the Majority abstracts from the consent
decree. Nor does it speak to the contents’ relevance to Roman’s
case. Such authenticity merely provides one reason for
judicially noticing the decree’s existence and eliminates one
potential reason for not relying on it. It does not follow that it
is “especially important” for district courts to rely on and
extrapolate from such documents. Maj. Op. 11.
       4
          The consent decree itself admits no specific pattern or
practice of rights violations. Although it followed a DOJ report
that “revealed a pattern or practice of constitutional violations
in areas including stop and arrest practices, use of force, and
theft by officers,” that report was never provided to the District
Court. App. 137; see Maj. Op. 11–12. Instead, the consent
decree only outlines measures Newark agreed to take—not any
pattern or practice of rights violations, let alone one that
plausibly caused Roman’s injuries. In fact, that report actually
demonstrates that even the pattern or practice that led to the
consent decree could not plausibly have caused Roman’s
injuries.




                                6
decree’s adoption). The consent decree says nothing about
arrests or searches without consent that occur at residences,
which is what Roman complains of in this case.

        Another problem that distinguishes Roman’s complaint
from the problems that led to the consent decree is the fact that
the decree addressed police practices that disparately impacted
the black community. See App. 93–98 (detailing same).5 But
that racial disparity did not apply to Roman, who was Hispanic.
See App. 261 ¶ 16. While the consent decree may have been
“meant to protect all Newark residents,” Maj. Op. 19, the point
remains that the pattern or practice giving rise to it was not one
that plausibly caused Roman’s injuries.

       Finally, the consent decree addressed erroneous
narcotics arrest reports where “individuals often were
purportedly seated in cars holding clear plastic baggies in front
of them or on their laps and officers could ‘immediately’ see
the contraband, even though the report indicated that the
subject’s back was to an officer, or that the officer had not yet
approached the car.” App. 92 (detailing the pattern or practice
investigated by the DOJ that led to the consent decree’s
adoption). Wholly unrelated to those erroneous reports, Roman
alleges that officers exhaustively searched the apartment

       5
        In his motion for reconsideration, Roman claimed his
municipal liability argument was based on “the City’s
widespread and systemic misuse of police powers to treat
members of a protected racial class different from those of
white citizens.” ECF 43-3 at 8. Unlike the pattern or practice
of Fourth Amendment violations the Majority now remands,
he argued “racial profiling, racial discrimination, or other
widespread discrimination of minorities” gave rise to his
municipal liability cause of action. Id.




                                7
without a warrant, and he is silent as to where and when the
officers found the drugs. See App. 30–31, 262–63.

       In sum, Roman’s arrest was too dissimilar from the
pattern or practice addressed by the consent decree to plausibly
allege proximate causation for his injuries. While clear that the
DOJ did not enter into the consent decree “because it was
impressed with Newark’s policing practices,” Maj. Op. 20, it
was not the District Court’s duty to imagine all possible
inferences from the document. It was Roman’s duty to plead
them. See Judon, 773 F.3d at 505. For the Majority to conclude
otherwise, it must derive that pattern or practice from sources
not before the District Court and define it at the highest level
of generality: Fourth Amendment violations writ large. In other
words, my colleagues conclude that because Newark police
allegedly engaged in a pattern or practice of Fourth
Amendment violations of type x, it follows that they plausibly
committed this violation of type y—all based on a document
they cannot claim the District Court must have considered. The
District Court did not err in failing to perform the Majority’s
inferential leaps to reach that conclusion based on a document
it need not have considered in the first place. It properly
dismissed this claim rather than indulge such speculation. See
Iqbal, 556 U.S. at 679–80.

        With or without these sources, the amended complaint’s
bare legal conclusions need not be accepted as true. Id. at 678.
So Roman failed to state a pattern-or-practice claim on which
relief could be granted.




                               8
                                2

       Roman’s failure-to-train, failure-to-supervise, and
failure-to-discipline claim was sufficiently pleaded. But the
Majority’s method for arriving at this conclusion suffers from
similar deficiencies to its pattern-or-practice reasoning. The
Majority’s reliance on the consent decree is again misplaced
for the reasons discussed above.6 And even if such reliance
were appropriate, the consent decree does not make Roman’s
claim plausible.

        Roman’s arrest was not plausibly caused by the failures
to train, supervise, or discipline Newark officers the Majority
cites in the consent decree because no such failures appear in
the document. The Majority claims “the consent decree
indicates Newark police officers were not trained on ‘the
requirements of [the] Fourth Amendment and related law.’”
Maj. Op. 16. And “per the decree” the City’s “training did not
cover the basics of the Fourth Amendment.” Id. at 17. It does
no such thing. Rather, it indicates that Newark agreed to

       6
          The Majority’s reliance on the news article and press
release hyperlinked in Roman’s complaints is likewise
inappropriate. The news article’s identification of one
officer—who may or may not have been involved in Roman’s
arrest—who told a reporter he “think[s]” he did not receive
training for 20 years is not enough to subject the City to
liability for failure to adequately train its entire police force.
App. 134 (emphasis added). This demonstrates no custom; nor
does it plausibly demonstrate the police academy training all
officers receive was constitutionally inadequate without more
follow-up. Nor does the article address supervision or
discipline. Similarly, the press release addresses none of the
three.




                                9
implement additional training on “the requirements of [the]
Fourth Amendment and related law” without any detail as to
the status quo it addressed. App. 160. While it’s safe to say that
the DOJ did not endorse that status quo, the difference between
agreeing to train more and agreeing that prior training was
constitutionally inadequate regarding the Fourth Amendment
writ large should be clear. And, as discussed above, the consent
decree arose from a host of policing practices unlike those
Roman alleged (except at the highest level of generality).
Newark could not plausibly have agreed to the extraordinary
liability that would come from admitting that its police training
violated the Fourth Amendment in every instance, or in every
instance possibly connected to Roman’s arrest. Indeed, the
decree says no such thing about any instance.

        The consent decree is even thinner as it relates to
supervisory and disciplinary issues. From the City’s agreement
to adhere to certain review processes and disciplinary measures
regarding unlawful searches and false arrests, the Majority
perceives a “deliberate indifference to Roman’s Fourth
Amendment rights.” Maj. Op. 17 (internal quotations and
citation omitted). That does not follow. The decree does not
describe or admit any processes or measures already in place
or any existing pattern of unlawful searches or false arrests.

       Instead, Roman’s amended complaint directly alleged
training, supervision, and discipline problems with adequate
specificity to survive a motion to dismiss. See, e.g., App. 270–
72 ¶¶ 68, 70, 71, 78, 80, 82; see also Doe v. Luzerne Cty., 660
F.3d 169, 179–80 (3d Cir. 2011) (quoting Carter v. City of
Phila., 181 F.3d 339, 357 (3d Cir.1999)) (detailing standard at
summary judgment for failure-to-train claim). The Majority’s
improper reliance on the consent decree and inferential leaps




                               10
from that and other sources outside the amended complaint are,
in my view, erroneous and unnecessary.

                        *       *      *

        As we have noted many times before, we are a court of
review, not a court of first view. See, e.g., In Re: J & S Props.,
LLC, 872 F.3d 138, 148 (3d Cir. 2017). Our review is based on
the record as presented by counsel in our adversary system. We
should not fault the District Court for failing to manufacture
facts and craft arguments that Roman neglected to plead. By
conjuring its own facts repackaged as if pleaded in the
amended complaint, the Majority imposes a new duty upon
district judges within the Third Circuit. It does so without
citing precedent for the proposition that a district court must
consider facts and arguments never pleaded or argued by the
plaintiff. I cannot subscribe to this new rule.

       This appeal implicates a fundamental legal principle:
the plaintiff is the master of his complaint. Because of that
time-honored principle, Roman’s failure to state a policy-or-
practice claim upon which relief may be granted requires the
harsh sanction of dismissal. After his initial complaint was
found inadequate, Roman failed to file an amended complaint
that cured the deficiencies identified by the District Court.
Even assuming Roman might have had a legitimate claim, it
would have been improper for the District Court to try to make
Roman’s case for him. And it’s especially inappropriate for us
to overrule the decision of a district judge because of a failure
to apprehend facts and arguments never presented to her. I
respectfully dissent.




                               11
