OFFICER PAUL S. MASLOW v. CITY OF ATLANTIC CITY et al

Filing 77

AMENDED OPINION Corrects typo on page 5 from 9/28/2011 Opinion. Signed by Judge Joseph E. Irenas on 10/12/2011. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PAUL MASLOW,

HONORABLE JOSEPH E. IRENAS

Plaintiff,

CIVIL ACTION NO. 08-3618 (JEI)

v.
AMENDED OPINION

CITY OF ATLANTIC CITY and JOHN
MOONEY,
Defendants.
APPEARANCES:
O’BRIEN, BELLAND & BUSHINSKY, LLC
By: Mark E. Belland
Jeffrey Robert Caccese
1526 Haddonfield-Berlin Road
Cherry Hill, NJ 08003
Counsel for Plaintiff

DECOTIIS, FITZPATRICK, COLE & WISLER, LLP
By: Steven C. Mannion
Glenpointe Centre West
500 Frank W. Burr Boulevard
Suite 31
Teaneck, NJ 07666
Counsel for Defendant City of Atlantic City
LEVINE STALLER SKLAR CHAN BROWN & DONNELLY PA
By: David John Azotea
3030 Atlantic Avenue
Atlantic City, NJ 08401
Counsel for Defendant John Mooney
IRENAS, Senior District Judge:
This matter comes before the Court on Defendant Mooney’s

1

Motion for Summary Judgment.1

For the reasons set forth below,

the Motion will be granted.2
I.
Plaintiff Paul Maslow has been a police officer with
Atlantic City since 1988.
at ¶ 1)3

(Mooney’s L.Civ.R. 56.1(a) Statement

Due to an injury, Plaintiff took sick leave for five

and half months, and remained out of work until May 2007.
at ¶ 9)

(Id.

Upon returning to work, Plaintiff was assigned to the

midnight to eight a.m. shift.

(Id. at ¶ 11)

Prior to taking

sick leave, Plaintiff worked the four p.m. to midnight shift.
(Id. at ¶ 10)
Plaintiff had trouble adjusting to the new schedule.
at ¶ 12)

(Id.

After four days of work, Plaintiff used two weeks of

sick time, and subsequently applied for extended sick leave based
on a sleep disorder, anxiety and stress.

(Id.)

In May 2007,

Plaintiff met with a psychiatrist at the recommendation of Dave
Davidson, Police Benevolent Association Union (“PBA”) President.
(Id. at ¶¶ 20-21)

The psychiatrist issued Plaintiff a sick

certificate due to stress.

(Id. at ¶ 21)

1

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331
and 28 U.S.C. § 1367(a).
2

This Court recently granted partial summary judgment in favor of
Defendant City of Atlantic City. See Maslow v. City of Atlantic City, 2011 WL
2607160 (2011).
3

This citation refers to the parties’ obligation to write statements of
material facts not in dispute for summary judgment motions pursuant to Local
Civil Rule 56.1(a).

2

Despite his psychiatric problems, Plaintiff attended a PBA
meeting on May 30, 2007.

(Id. at ¶ 22)

There, he encountered

Lt. James Pasquale and told him that he was missing work because
of stress.

(Id.)

Upon hearing this news, Lt. Pasquale advised

Plaintiff that the police department would need to take back his
city issued firearm.

(Id. at ¶ 23)

this request.

Lt. Pasquale further inquired whether

(Id.)

Plaintiff cooperated with

Plaintiff wished to voluntarily relinquish his personally owned
firearms pursuant to the police department’s unwritten policy
regarding officers on sick leave.

(Id. at ¶ 24)

request, however, Plaintiff refused.

To this

(Id.)

After learning of this situation, Defendant Chief of Police
Mooney became involved in two distinct professional capacities.
First, Defendant Mooney was the chief of police and Plaintiff’s
supervisor.

(Id. at ¶ 2)

In this role, Defendant Mooney had a

duty to ensure that his employees did not pose a threat to the
public or themselves.

See N.J.S.A. 40A:14-118.

Plaintiff’s sick

leave did not strip Plaintiff of his status as a police officer
or Defendant Mooney’s status as Plaintiff’s superior officer.
Indeed, police officers have significant responsibilities
both on and off duty.

While off duty, police officers are

expected to respond to law violations and are at a greater risk
of personal attack due to the nature of their employment.

In

recognition of these risks, the police department encourages off
3

duty officers to carry personal firearms.
Sept. 22, 2011)4

(See Tr. of Oral Arg.,

These risks and responsibilities create

accompanying supervisory responsibilities for superior officers.
Defendant Mooney’s second role was through his statutory
firearms licensing authority for the municipality of Atlantic
City.

See N.J.S.A. 2C:58-3 to 4.

Defendant Mooney was in charge

of approving applications for firearms and handgun purchaser
identification cards, handgun carry permits and instituting
permit revocation proceedings in New Jersey Superior Court.

Id.

Although Plaintiff was exempt from obtaining a handgun carry
permit due to his position as a police officer, Plaintiff still
possessed a firearms purchaser identification card.5

See

N.J.S.A. 2C:39-6a(7)(a); N.J.A.C. 13:54-2.2.
In connection with these two distinct responsibilities,
Defendant Mooney contacted Deputy City Solicitor Anthony Swan to
discuss requiring Plaintiff to relinquish his personal firearms.
(Mooney’s L.Civ.R. 56.1(a) Statement at ¶¶ 26-28)

Swan informed

Defendant Mooney that they could institute revocation proceedings
in Superior Court pursuant to Defendant Mooney’s statutory
firearms licensing authority.

(Id. at ¶ 28)

However, Defendant

4

Atlantic City apparently revoked a regulation requiring police
officers to carry a weapon while off duty because of issues relating to
possible claims for compensation by off duty officers who did so. (Id.)
5

The firearms purchaser identification card allowed Plaintiff to
purchase ammunition and long guns. See N.J.S.A. 2C:58-3.3b.

4

Mooney wished to avoid this administrative burden and decided to
act in his supervisory capacity.

(Id. at ¶¶ 29-30)

Defendant

Mooney directed Swan to contact Plaintiff’s attorney, Tom
Reynolds, to request that Plaintiff voluntarily relinquish his
personal firearms.

(Id.)

Swan further advised Reynolds that

should Plaintiff refuse this request, Swan would file an action
in New Jersey State Superior Court to revoke Plaintiff’s “ability
to carry.”6

(Swan Dep., Br. in Opp., Ex. E, 22)

At this point, the parties’ accounts diverge.

Defendant

Mooney asserts that Plaintiff, through Reynolds, offered to
relinquish his personal firearms upon a formal written request.
(Mooney’s L.Civ.R. 56.1(a) Statement at ¶ 34)

Defendant Mooney

issued the requested order, and on June 1, 2007, Plaintiff
relinquished his personal firearms voluntarily.

(Id. at ¶ 35)

However, Plaintiff maintains that he steadfastly refused to
relinquish his personal firearms unless Defendant Mooney issued
an explicit written order.

(Br. in Opp. at 10)

Upon receiving

the written order, Plaintiff complied only to avoid punishment
for disobeying a direct order.

(Id. at 9-10)

In either account,

Defendant Mooney was exercising his supervisory authority, as
opposed to his firearms licensing authority.
6

Whether this revocation proceeding would be successful is uncertain.
Average citizens must keep, and renew every two years, a handgun carry permit
to “carry, hold or possess a handgun.” N.J.A.C. 13:54-2.2, 2.9. However,
police officers are exempt from this requirement. See N.J.S.A. 2C:396a(7)(a); N.J.A.C. 13:54-2.2. Therefore, it is unclear what permit the
Superior Court would have revoked.

5

In accordance with the written order, two sergeants from the
Atlantic City Police Department drove to Plaintiff’s home to take
possession of Plaintiff’s personal firearms and his firearms
purchaser identification card.
Statement at ¶ 42)

(Mooney’s L.Civ.R. 56.1(a)

Plaintiff did not fight this order or

otherwise demand a hearing.

(Id. at ¶¶ 43-44)

Nor did Plaintiff

file a grievance or otherwise pursue any remedies before bringing
this lawsuit.

(Id.)

After this conflict regarding Plaintiff’s

personal firearms, Plaintiff and Defendant Mooney’s relationship
was strained.

As a result, Plaintiff alleges that Defendant

Mooney twice refused him the prestigious post of motorcycle
training officer.

(Id. at ¶ 48)

As of oral argument held on September 22, 2011, Defendant
Mooney had reinstated Plaintiff as an active police officer and
had returned Plaintiff’s firearms and firearms purchaser
identification card.

II.
“[S]ummary judgment is proper ‘if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.’”

Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P.
6

56(c)).

In deciding a motion for summary judgment, the Court

must construe the facts and inferences in a light most favorable
to the non-moving party.

Pollock v. Am. Tel. & Tel. Long Lines,

794 F.2d 860, 864 (3d Cir. 1986).

“‘With respect to an issue on

which the non-moving party bears the burden of proof, the burden
on the moving party may be discharged by ‘showing’– that is,
pointing out to the district court – that there is an absence of
evidence to support the nonmoving party’s case.’”

Conoshenti v.

Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir. 2004)
(quoting Celotex, 477 U.S. at 323).

The role of the Court is not

“to weigh the evidence and determine the truth of the matter, but
to determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

III.
Plaintiff filed the Complaint in this Court on July 18,
2008.

On March 11, 2011, Defendant Mooney filed the present

Motion for Summary Judgment.
claims in the Complaint.

Plaintiff alleges three distinct

In his two federal claims, Plaintiff

asserts a § 1983 violation based on alleged infringements of the
Second Amendment and Due Process Clause of the Fourteenth
Amendment.7

Plaintiff’s third claim alleges a violation of the

7

Plaintiff also brings two identical claims directly pursuant to the
United States Constitution. Section 1983 creates a statutory right of action
for violations of the United States Constitution. Therefore, the Court will

7

New Jersey Law Against Discrimination (“LAD”) for discrimination
and harassment based on a perceived disability.
et seq.

N.J.S.A. 10:5-1

In addition, Defendant Mooney moves for attorney’s fees

pursuant to 42 U.S.C. § 1988.

A.
As a preliminary matter, Defendant argues that Plaintiff’s §
1983 claims are barred by the Eleventh Amendment.

The Eleventh

Amendment bars suits against a state or state official sued in
his or her official capacity.
25-26 (1991).

See Hafer v. Melo, 502 U.S. 21,

Suits against a state official in his or her

official capacity represent “only another way of pleading an
action against an entity which an officer is an agent.”

Id. at

25.
Here, Defendant Mooney is a municipal officer, not a state
officer.

Suits against municipal officers in their official

capacity only implicate judgments against the municipality, not
the state.8

See Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

670 n.54 (1978).

Therefore, the Eleventh Amendment, which

consider these duplicate claims together.
8

Furthermore, it is well-settled that claims may proceed against
officials in their personal capacities. Hafer, 502 U.S. at 25-26. By
construing Plaintiff’s ambiguous Complaint to sue Defendant Mooney in both his
personal and official capacity, the Eleventh Amendment would not bar this suit
even if Defendant Mooney were a state official.
See Clayton v. City of
Atlantic City, 722 F.Supp.2d 581, 589 n.10 (D.N.J. 2010).

8

protects the states against suits for money damages in federal
courts, does not apply to municipalities and municipal officials.
Id.

B.
Plaintiff’s second claim asserts a § 1983 violation based on
Defendant Mooney’s alleged deprivation of Plaintiff’s Second
Amendment rights.

The Second Amendment reads in full: “A well

regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not
be infringed.”

This claim is novel insofar as Second Amendment

rights, as defined by District of Columbia v. Heller, 554 U.S.
570 (2008), were not conclusively incorporated by the Fourteenth
Amendment, and thus applicable to the states, until the recent
Supreme Court opinion, McDonald v. City of Chicago, 13 S. Ct.
3020 (2010).
Defendant Mooney argues that in 2007, when Plaintiff
relinquished his personal firearms, the Supreme Court had not yet
issued McDonald.

(Def.’s Br. in Supp. Sum. J. at 23-25)

Therefore, the alleged violation of Plaintiff’s Second Amendment
rights did not give rise to a § 1983 cause of action because no
such rights yet existed.

Defendant Mooney further argues that

the Second Amendment does not provide protection against laws
prohibiting the “possession of firearms by felons and the

9

mentally ill.”

Heller, 554 U.S. at 626.

Plaintiff, by his own

admission, had a mental disability.
In response, Plaintiff argues that the Supreme Court was
merely interpreting the Constitution, and the right has been
enshrined since the adoption of the Second Amendment.

McDonald,

130 S.Ct. 3020, 3077 (“[T]he ratifying public understood the
Privileges and Immunities Clause to protect constitutionally
enumerated rights, including the right to keep and bear arms.”).
In support of this argument, Plaintiff cites to U.S. v. Huet,
2010 WL 4853847 (W.D.Pa. 2010).

There, a criminal defendant made

an “as applied” challenge to a statute that banned aiding and
abetting the possession of an illegal firearm on Second Amendment
grounds.

Id. at *12.

The Court ruled that the statute, as

applied to the defendant, would violate the Second Amendment
despite the Defendant having been arrested before McDonald was
decided.

Id.

These arguments presuppose that the Second Amendment applies
to this case.

The Second Amendment generally has been used to

challenge statutes criminalizing the possession of firearms by a
class of people.

See generally Heller, 554 U.S. 570 (striking

down a Washington D.C. statute that criminalized handgun
ownership in one’s own home); Huet, 2010 WL 4853847.

This Court

has found no case that permitted a § 1983 claim based on an
alleged violation of the Second Amendment against a particular

10

individual.
Here, there was no statute that barred Plaintiff from owning
or possessing a handgun.

In fact, New Jersey and federal law

allow police officers to more easily carry personal handguns by
exempting them from the normal licensing processes.

N.J.S.A.

2C:39-6a(7)(a); N.J.A.C. 13:54-2 et seq.; see also 18 U.S.C. §
926(B).

These special privileges are in recognition of the vital

role that police officers assume.

Indeed, the law recognizes a

police officer’s right to employ force, and even deadly force,
when the circumstances so warrant.

See, e.g., Tennessee v.

Garner, 471 U.S. 1, 16-20 (1985); Scott v. Harris, 550 U.S. 372,
383-85 (2007).

However, with such an ease of access to firearms,

and the right to employ force, the police department is under a
concomitant obligation to monitor their officers, especially
those with psychological issues that may pose a threat to
themselves or the public.9
To fulfill this obligation, Defendant Mooney had two options
to disarm Plaintiff - one for each of his distinct professional
roles.

First, Defendant Mooney could have instituted a

proceeding to revoke Plaintiff’s firearms purchaser
identification card in New Jersey Superior Court pursuant to his

9

Indeed, a police department might be sued if it did not disarm police
officers with known mental disabilities who later injured someone with a
firearm attained by virtue of their privileged status as a police officer.

11

statutory firearms licensing authority.10

See N.J.S.A. 2C:58-3f.

Revocation of the card is permissible when it “would not be in
the interest of the public health, safety or welfare.”
2C:58-3c(5).

N.J.S.A.

Second, Mooney, in his supervisory capacity, could

have issued an order for Plaintiff to relinquish his personal
firearms and firearms purchaser identification card.

See

N.J.S.A. 40A:14-118.
If Mooney had chosen to seek revocation of Plaintiff’s
firearms purchaser identification card, Plaintiff would have
received a hearing in New Jersey Superior Court and could have
appealed an adverse decision.

See N.J.S.A. 2C:58-3f.

In fact, Mooney opted to act in his supervisory capacity by
issuing an order directing Maslow to surrender his personal
weapons.

Plaintiff could have responded to Mooney’s written

order either by obeying it or refusing to comply.

If Plaintiff

acquiesced to the order, as happened in this case, he waived any
challenge to which he otherwise would have been entitled.
However, if Plaintiff refused to comply with the order,
Mooney could choose to either withdraw the order or impose some
sanction based on Plaintiff’s refusal to obey.

If he chose to

impose a sanction, Maslow would have been entitled to a hearing
at which he could have challenged the discipline imposed and

10

This option may have been less desirable because Plaintiff would not
necessarily have been forced to relinquish the firearms he had previously
purchased.

12

could have appealed any adverse decision.

See N.J.S.A. 40A:14-

147 et seq.; cf. Board of Regents of State Colleges v. Roth, 408
U.S. 564, 573 (1972) (holding that before being deprived of a
protected interest there must have been an opportunity to be
heard.)

If successful, any discipline imposed on Plaintiff would

have been reversed and Plaintiff made whole.

See N.J.S.A.

40A:14-149.2.
In these circumstances, where a superior officer orders an
inferior officer to temporarily relinquish his personal firearms
during the pendency of a mental disability, and the inferior
officer does not challenge that order, there is no Second
Amendment violation.

Accordingly, Defendant Mooney’s Motion for

Summary Judgment with respect to the § 1983 claim based on an
alleged Second Amendment violation will be granted.

C.
Plaintiff’s final § 1983 claim is for an alleged deprivation
of his Due Process rights for “forcing Plaintiff to surrender his
personal firearm without the benefit of a hearing.”11

(Compl. at

¶ 30)
When a plaintiff sues under § 1983 alleging a state actor’s
failure to provide procedural due process, there is a two-part

11

For the purposes of this analysis, and making all inferences in the
light most favorable to the non-moving party, the Court assumes that Defendant
Mooney required Plaintiff to involuntarily relinquish his personal firearms.

13

analysis: “(1) whether the asserted individual interests are
encompassed within the fourteenth amendment’s protection of life,
liberty, or property; and (2) whether the procedures available
provided the plaintiff with due process of law.”

Alvin v.

Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (internal quotations
omitted).

This analysis requires a plaintiff to have “taken

advantage of the processes that are available to him or her,
unless those processes are unavailable or patently inadequate.”
Id.
Here, there can be little doubt that personal firearms fit
within the meaning of property.

See Parratt v. Taylor, 451 U.S.

527, 537-37 (1981) (holding that a prisoner’s personal hobby kit
was protected property under the Due Process Clause of the
Fourteenth Amendment).

However, Maslow was not being asked to

permanently surrender his ownership rights in his personal
handguns.

He was asked only to cede temporary possession while

still a police officer and while he was on leave for a mental
disability.

When his disability ceased and he was restored to

duty, his weapons were returned to him.

Whether Maslow’s

constitutionally protected rights were violated by this temporary
loss of possession is surely at least debatable.
However, even if we assume that such a limited interest is
constitutionally protected, Plaintiff would have had the right to
demand a pre-deprivation hearing if Mooney had tried to

14

discipline Plaintiff for disobeying the order.
40A:14-147 et seq.

Instead, Maslow obeyed the order, which

effectively waived his right to a hearing.
564, 573.12

See N.J.S.A.

See Roth, 408 U.S.

Accordingly, Defendant Mooney’s Motion for Summary

Judgment with respect to the § 1983 claim based on an alleged
violation of the Due Process Clause will be granted.

D.
Assuming arguendo that Plaintiff could establish a viable
claim under either the Second Amendment or Due Process Clause,
the claims would also fail on qualified immunity grounds.13
Qualified immunity entails a two-part inquiry.

First, “[t]he

threshold inquiry a court must undertake in a qualified immunity
analysis is whether plaintiff’s allegations, if true, establish a
constitutional violation.”
(2002).

Hope v. Pelzer, 536 U.S. 730, 736

Second, defendants may nevertheless “be shielded from

liability for civil damages if their actions did not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.”

Id. at 739.

In the Third

12

In Roth, an assistant professor fought his dismissal all the way up
to the Supreme Court. Had the professor in Roth simply accepted his dismissal
without a fight as Plaintiff did, he would have had no claim.
13

Although Defendant Mooney never specifically mentions qualified
immunity in his brief, his arguments are clearly steeped in qualified immunity
doctrine. (See Def’s Br. in Supp. Sum. J. at Point IV.A. (discussing whether
Second Amendment rights were clearly established.)) Furthermore, Defendant
Mooney raises qualified immunity as an affirmative defense in his Answer.
(Dkt. No. 9)

15

Circuit, the Court need not perform the inquiries in order.

See

Beckinger v. Township of Elizabeth, 2011 WL 2559446, *3-4 (3d
Cir. 2011).
With respect to whether there was a clearly established
Second Amendment right, the answer must be no.

The Supreme Court

had not yet decided either Heller or McDonald.

Moreover, there

was no established law suggesting a Second Amendment violation
when a superior officer acted to disarm a subordinate officer he
perceived to have a psychological issue.

Indeed, Mooney had a

duty to act to protect the public from possible harm by a
subordinate clothed with the powers possessed by a police
officer.

This unwritten policy of disarming police officers with

mental disabilities had been followed several times before
without incident.

(See Tr. Oral Arg., Sept. 22, 2011)

As such,

Plaintiff did not have a clearly established Second Amendment or
Due Process right.

Accordingly, Plaintiff’s § 1983 claims based

on an alleged Second Amendment and Due Process violation are
barred on the additional grounds of Defendant Mooney’s qualified
immunity.

E.
Plaintiff’s final claim alleges discrimination based on a
perceived and actual disability in violation of the LAD.14
14

There is no dispute that Plaintiff’s psychiatric condition qualifies
as a disability for the purposes of the LAD.

16

N.J.S.A. 10:5-1 et seq.

For the purposes of the LAD, supervisors

are treated differently than employers.

See Cicchetti v. Morris

County Sheriff’s Office, 194 N.J. 563, 594 (2008) (“individual
liability of a supervisor for acts of discrimination or for
creating or maintaining a hostile environment can only arise
through the aiding and abetting mechanism that applies to any
person.”) (internal quotations omitted);15 see also N.J.S.A.
10:5-12(e).

To establish aiding and abetting liability, the

plaintiff must show that “(1) the party whom the defendant aids
must perform a wrongful act that causes an injury; (2) the
defendant must be generally aware of his role as part of an
overall illegal or tortious activity at the time that he provides
the assistance; and (3) the defendant must knowingly and
substantially assist the principal violation.”

Tarr v. Ciasulli,

181 N.J. 70, 84 (2004).
In turn, there are five factors relevant to determine
whether a defendant provided substantial assistance to the
principal violator.

Id.

“The factors are: (1) the nature of the

act encouraged, (2) the amount of assistance given by the
supervisor, (3) whether the supervisor was present at the time of
the asserted harassment, (4) the supervisor’s relations to the
others, and (5) the state of mind of the supervisor.”

15

Id.

“[T]he plain meaning of the definition of employer in the LAD does
not include a supervisor.” Id .

17

Paramount to this analysis is the existence of both a
principal violator and the alleged aider and abetter.

An

“alleged principal wrongdoer, cannot aid and abet his own
wrongful conduct.”

Newsome v. Administrative Office of the

Courts, 103 F.Supp.2d 807, 823 (D.N.J.2000); accord Putterman v.
Weight Watchers Intern., Inc., 2010 WL 3310706, *1 (D.N.J. 2010);
Swingle v. Novo Nordisk, Inc., 2009 WL 2778106, *8 (D.N.J. 2009);
Taskonas v. Nextel Communs., Inc., 2006 WL 2527998, *6 (D.N.J.
2006).

Therefore, a supervisor cannot be individually liable on

an aiding and abetting theory when taking actions alone.
In an attempt to rebut this proposition, Plaintiff cites to
Ivan v. County of Middlesex to suggest that one can aid and abet
oneself.

612 F.Supp.2d 546 (D.N.J. 2009).

However, Ivan stands

for the proposition that a supervisor can be held liable when he
willfully fails to respond to known LAD violations, which
emboldens further acts of discrimination by those he supervises.
Id. at 553.

Ivan does not support Plaintiff’s theory that

Defendant Mooney aided and abetted his own discriminatory
behavior.
Here, Plaintiff alleges no facts that support an aiding and
abetting theory of liability.

At best, and taking all inferences

in the light most favorable to the non-moving party, Defendant
Mooney, acting as Plaintiff’s supervisor, issued an order to
disarm Plaintiff during the pendency of his mental disability.

18

This action was not discriminatory.

Moreover, Defendant Mooney’s

direct action did not aid and abet anything and, thus, cannot
establish individual aiding and abetting liability under the
LAD.16

Accordingly, Defendant Mooney’s Motion for Summary

Judgment on the LAD claim will be granted.

F.
Finally, Defendant Mooney moves for attorney’s fees pursuant
to 42 U.S.C. § 1988.

In general, the American system requires

each side to bear their own litigation costs.

However, in

certain situations Congress has elected to change the general
rule by statute.

Section 1988 reads in relevant part, “[i]n any

action or proceeding to enforce a provision of . . . § 1983 . . .
the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee as part
of the costs.”

42 U.S.C. § 1988(b).

Although the statute is

generally employed by plaintiffs, defendants may also recover
attorney’s fees if “the plaintiff’s action was frivolous,
unreasonable, or without foundation.”

See Fox v. Vice, 131 S.Ct.

2205, 2213 (2011) (quoting Christiansburg Garment Co. V. EEOC,
434 U.S. 312, 421 (1978).
In this case, Defendant Mooney is the prevailing party, but

16

For this reason, Plaintiff’s allegation that Defendant Mooney refused
to appoint Plaintiff to a motorcycle training position cannot establish aiding
and abetting liability either.

19

Plaintiff’s claims can hardly be called frivolous.
case involved difficult and novel legal issues.

Indeed, the

The Court

declines to exercise its discretion to award attorney’s fees to
Defendant Mooney.

Therefore, Defendant Mooney’s Motion with

respect to attorney’s fees will be denied.

IV.
District courts should decline to retain jurisdiction absent
exceptional circumstances impacting judicial economy, convenience
and fairness to litigants.

Borough of West Mifflin v. Lancaster,

45 F.3d 780, 788 (3d Cir. 1995).

Here, a failure to resolve this

case immediately could result in a significant waste of state
court judicial resources.

Therefore, in furtherance of judicial

economy, this Court will resolve the last remaining claim in this
case.
Because the Court finds that Defendant Mooney’s actions were
not discriminatory, and Plaintiff does not allege that Defendant
City of Atlantic City independently discriminated against
Plaintiff, Defendant City of Atlantic City cannot legally be held
liable on Plaintiff’s remaining LAD claim based on
discrimination.

Accordingly, Plaintiff’s remaining LAD claim

against Defendant City of Atlantic City will be dismissed with
prejudice.

20

V.
For the reasons set forth above, the Court will grant
Defendant Mooney’s Motion for Summary Judgment.

Defendant

Mooney’s motion to recover attorney’s fees will be denied.

In

addition, Plaintiff’s remaining state law claim against Defendant
City of Atlantic City will be dismissed with prejudice.

Dated: 10/12/11
/s/ Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.

21