COTTRELL et al v. NORMAN et al
Filing
66
OPINION FILED. Signed by Judge Noel L. Hillman on 7/25/14. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
MARYANN COTTRELL and RICHARD G.:
HOLLAND,
:
:
Plaintiffs,
:
:
v.
:
:
KEYSHONNA NORMAN, et al.,
:
:
Defendants.
:
:
______________________________ :
Civil Action No.
12-1986
OPINION
Appearances:
MARYANN COTTRELL
RICHARD G. HOLLAND
31 S. ACADEMY ST.
GLASSBORO, NJ 08028
Pro Se Plaintiffs
STEPHEN GUICE
LAW OFFICES OF STEPHEN GUICE, P.C.
413 CLEMENTS BRIDGE ROAD
BARRINGTON, NJ 08007
Attorney for defendant Keyshonna Norman
CHRISTOPHER THOMAS HUBER
OFFICE OF THE ATTORNEY GENERAL
HUGHES JUSTICE COMPLEX
25 MARKET STREET
P.O. BOX 112
TRENTON, NJ 08625
Attorney for defendants Rowan University, Rowan University
Police Dept., Rowan University Public Safety Dept., Michael
Kantner, Rowan Security Dept., Lt. John Malinski, Siobhan
McClintok, Officer Ryan Brennan, Officer Carrie Rathof, Sgt.
Frank Davey, and Richard Hale
HILLMAN, District Judge:
Before the Court is a motion to dismiss filed by defendants
Rowan University, Rowan University Police Dept., Rowan
University Public Safety Dept., Michael Kantner, Rowan Security
Dept., Rowan Police Lieutenant John Malinski, Rowan Police
Officer Siobhan McClintok, Rowan Police Officer Ryan Brennan,
Rowan Police Officer Carrie Rathof, and Rowan Police Sergeant
Frank Davey (collectively “Rowan defendants”). 1
For the reasons
explained below, the Rowan defendants’ motion to dismiss will be
granted.
I.
FACTUAL BACKGROUND
According to plaintiffs’ second amended complaint,
plaintiff Cottrell is a mother of a severely disabled daughter,
and plaintiffs are legally permitted to park their car in a
handicap accessible parking space reserved for disabled
individuals while transporting Cottrell’s daughter.
Plaintiffs
are self-described longtime “advocates for the disabled” and
often challenge perceived parking violations of individuals who
1 Defendant Richard Hale is a former employee of Rowan
University. Counsel for Rowan states that they anticipate that
they will represent Hale, but that plaintiffs have yet to serve
him. The Order accompanying this Opinion will order plaintiffs
to show cause why Hale should not be dismissed for failure to
prosecute.
2
illegally park in handicap parking spaces.
They regularly file
complaints with the U.S. Department of Justice, and in this
Court.
On April 1, 2010, plaintiffs drove Cottrell’s daughter,
Brittany Sloope, to Rowan University to attend a “Get Fit”
class.
After class ended, plaintiffs were returning to their
car when they noticed a car parked in a handicap parking space.
Plaintiffs state that the temporary handicap placard had
expired.
Plaintiffs and the driver of the vehicle, defendant
Keyshonna Norman, got into a verbal altercation.
About an hour after the incident, Norman filed an incident
report with Rowan University against Cottrell for harassment and
for theft of her temporary handicap placard.
Based on the
statements given by Norman, Rowan University police officers
filed burglary charges against Cottrell for entering Norman’s
vehicle and removing the handicap placard.
On April 2, 2010, a Glassboro police officer, and four
Rowan University police officers came to plaintiffs’ residence
and arrested Cottrell and charged her with theft, disorderly
conduct and harassment.
Plaintiffs were also given a trespass
notice banning them from Rowan’s campus.
Cottrell filed a
citizens’ handicap parking complaint and harassment charge
against Norman. On February 28, 2011, the charges against
3
Cottrell were dismissed.
II.
PROCEDURAL BACKGROUND
On April 2, 2012, plaintiffs filed a complaint against the
Rowan defendants and defendant Keyshonna Norman.
On October 15,
2012, the Rowan defendants filed a motion to dismiss plaintiffs’
complaint.
Plaintiffs filed an opposition brief to the motion
and then subsequently filed a motion for leave to amend their
complaint on January 29, 2013.
On May 3, 2013, plaintiffs’
motion for leave to amend was granted.
The Rowan defendants then filed a motion to dismiss
plaintiffs’ first amended complaint on May 17, 2013.
Plaintiffs
again filed a motion on September 6, 2013 for leave to amend
their complaint a second time.
On December 4, 2013, the Court
granted in part and denied in part plaintiffs’ motion.
The
Court granted plaintiffs leave to add additional claims for
violations of the Fourth and Fourteenth Amendment, but denied
plaintiffs’ leave to add claims under the Fifth Amendment and
claims for malicious use of process against the Rowan
defendants.
The Court also granted plaintiffs leave to assert a
malicious use of process claim against Norman.
Plaintiffs’ second amended complaint alleges their ban from
Rowan’s campus violated their First and Fourteenth Amendment
4
rights and the New Jersey Civil Rights Act.
They also bring
discrimination and retaliation claims pursuant to the ADA and
NJDLAD.
Plaintiffs further allege false arrest in violation of
the Fourth Amendment.
Plaintiffs seek to enforce the ADA
requirements, to enjoin Rowan from banning them from campus, and
to recover monetary damages and attorney’s fees.
The Rowan defendants filed a motion to dismiss plaintiffs’
second amended complaint which is now before the Court.
For the
reasons explained below, the Rowan defendants’ motion to dismiss
will be granted.
III. JURISDICTION
Plaintiffs have alleged federal rights violations and
therefore this Court exercises subject matter jurisdiction
pursuant to 28 U.S.C. § 1331.
The Court exercises supplemental
jurisdiction over plaintiffs’ related state law claims pursuant
to 28 U.S.C. § 1367.
IV.
STANDARDS FOR MOTION TO DISMISS
A. FED. R. CIV. P. 12(b)(1)
The Rowan defendants argue that plaintiffs lack standing to
bring discrimination claims under the ADA and the NJLAD.
of standing is a challenge to this Court’s subject matter
5
Lack
jurisdiction and, therefore, is determined pursuant to Fed. R.
Civ. P. 12(b)(1).
In re Schering Plough Corp. Intron/Temodar
Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012) (citing
Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007)).
Rule 12(b)(1) motions are either facial or factual
challenges.
2008).
CNA v. United States, 535 F.3d 132, 140 (3d Cir.
A facial attack concerns the sufficiency of the
pleadings, whereas a factual attack is a dispute over the
existence of certain jurisdictional facts alleged by the
plaintiff.
Id. (citing United States ex rel. Atkinson v. Pa.
Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007)).
In deciding a motion that attacks the complaint on its
face, the court must accept the allegations in the complaint as
true.
Mortensen v. First Federal Sav. and Loan Ass'n, 549 F.2d
884, 891 (3d Cir. 1977); Gould Elecs., 220 F.3d at 176 (“In
reviewing a facial attack, the court must only consider the
allegations of the complaint and documents referenced therein
and attached thereto, in the light most favorable to the
plaintiff.”).
If the motion attacks the facts supporting jurisdiction,
“no presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material facts will
not preclude the trial court from evaluating for itself the
6
merits of jurisdictional claims.”
Mortensen, 549 F.2d at 891.
The plaintiff has the burden to prove that jurisdiction does in
fact exist.
Id.
Here, the Rowan defendants are making a facial attack that
plaintiffs lack standing to bring discrimination claims pursuant
to the ADA and NJLAD.
243.
See In Re Schering Plough, 678 F.3d at
As such, the Court “must accept as true all material
allegations set forth in the complaint, and must construe those
facts in favor of the nonmoving party” as it would in reviewing
a complaint pursuant to a Rule 12(b)(6) motion.
Id. (“In
evaluating whether a complaint adequately pleads the elements of
standing, courts apply the standard of reviewing a complaint
pursuant to a Rule 12(b)(6) motion to dismiss for failure to
state a claim.”).
The three-step approach is used to evaluate
whether a complaint satisfies this standard:
First, the court must take note of the
elements a plaintiff must plead to state a
claim. Second, the court should identify
allegations that, because they are no more
than conclusions, are not entitled to the
assumption of truth. Finally, where there
are well-pleaded factual allegations, a
court should assume their veracity and then
determine whether they plausibly give rise
to an entitlement for relief.
Id. (internal quotations omitted).
Thus, although lack of standing is a subject matter
7
jurisdiction challenge under Rule 12(b)(1), the standard applied
is the same applied under Rule 12(b)(6).
B. FED. R. CIV. P. 12(b)(6)
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Fed. R. Civ. P. 12(b)(6), a court must accept all
well-pleaded allegations in the complaint as true and view them
in the light most favorable to the plaintiff.
Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
Evancho v.
It is well settled
that a pleading is sufficient if it contains “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”
Fed. R. Civ. P. 8(a)(2).
Under the liberal federal
pleading rules, it is not necessary to plead evidence, and it is
not necessary to plead all the facts that serve as a basis for
the claim.
Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d
Cir. 1977).
However, “[a]lthough the Federal Rules of Civil
Procedure do not require a claimant to set forth an intricately
detailed description of the asserted basis for relief, they do
require that the pleadings give defendant fair notice of what
the plaintiff’s claim is and the grounds upon which it rests.”
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3
(1984) (quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks
8
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claim.’”
Bell Atlantic v. Twombly, 127 S. Ct. 1955, 1969 n.8
(2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974));
see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (“Our
decision in Twombly expounded the pleading standard for ‘all
civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final
nail-in-the-coffin for the ‘no set of facts’ standard that
applied to federal complaints before Twombly.”).
As noted above in the discussion of the standard for a Rule
12(b)(1) motion mounting a facial attack based on standing, the
Third Circuit has outlined a three step approach in reviewing a
complaint under Rule 12(b)(6).
F.3d 121, 130 (3d Cir. 2010).
Santiago v. Warminster Tp., 629
“First, the court must ‘tak[e]
note of the elements a plaintiff must plead to state a claim.’”
Id. (citing Iqbal, 129 S.Ct. at 1947).
Second, the factual and
legal elements of a claim should be separated; a district court
must accept all of the complaint's well-pleaded facts as true,
but may disregard any legal conclusions.
at 210 (citing Iqbal, 129 S. Ct. at 1950).
Id.; Fowler, 578 F.3d
Finally, a district
court must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a
9
“‘plausible claim for relief.’”
at 1950).
Id. (quoting Iqbal, 129 S. Ct.
A complaint must do more than allege the plaintiff's
entitlement to relief.
Id.; see also Phillips v. County of
Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (stating that the
“Supreme Court's Twombly formulation of the pleading standard
can be summed up thus: ‘stating . . . a claim requires a
complaint with enough factual matter (taken as true) to suggest’
the required element.
This ‘does not impose a probability
requirement at the pleading stage,’ but instead ‘simply calls
for enough facts to raise a reasonable expectation that
discovery will reveal evidence of’ the necessary element”).
A
court need not credit either “bald assertions” or “legal
conclusions” in a complaint when deciding a motion to dismiss.
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 142930 (3d Cir. 1997).
The defendant bears the burden of showing
that no claim has been presented.
Hedges v. U.S., 404 F.3d 744,
750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor,
Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
Finally, a court in reviewing a Rule 12(b)(6) motion must
only consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
Southern Cross Overseas Agencies, Inc. v. Kwong Shipping Group
Ltd., 181 F.3d 410, 426 (3d Cir. 1999).
10
A court may consider,
however, “an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff’s
claims are based on the document.”
Pension Benefit Guar. Corp.
v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993).
The Rowan defendants’ argument that some of plaintiffs’
claims are barred by the doctrine of qualified immunity shall be
reviewed under Rule 12(b)(6).
See Leveto v. Lapina, 258 F.3d
156, 161 (3d Cir. 2001) (finding that “qualified immunity ‘will
be upheld on a 12(b)(6) motion only when the immunity is
established on the face of the complaint.’”) (citations
omitted); Peteete v. Asbury Park Police Dept., 09-1220, 2010 WL
5151238, at *3 (D.N.J. Dec. 13, 2010) (“a defendant's claim that
he is entitled to qualified immunity is properly evaluated under
Rule 12(b)(6) rather than
Rule 12(b)(1).”).
Additionally,
their argument that plaintiffs fail to state a claim upon which
relief can be granted will be analyzed under Rule 12(b)(6).
V.
DISCUSSION
The Rowan defendants argue that plaintiffs are not disabled
and therefore lack standing to bring discrimination claims under
the ADA and NJLAD.
They also argue that plaintiffs’ retaliation
claims under the ADA and NJLAD should be dismissed because there
11
is no causal connection between their 2010 ban from campus and
their alleged protected activity.
They further argue that
plaintiffs’ claims under § 1983 and the New Jersey Civil Rights
Act alleging that defendants violated their First, Fourth and
Fourteenth Amendment Rights are barred by qualified immunity.
Plaintiffs do not respond directly to the Rowan defendants’
motion to dismiss.
Rather, they filed a one paragraph statement
that they oppose the motion and rely upon their previous
responses, particularly documents 19 and attachment 1, document
30 and attachments 1 and 2, 2 document 40 and attachments, and
document 50 and attachments.
inadequate.
This “response” is woefully
See Albrechtsen v. Board of Regents of University
of Wisconsin System, 309 F.3d 433, 436 (7th Cir. 2002) (stating
“‘Judges are not like pigs, hunting for truffles buried in’ the
record.”) (quoting United States v. Dunkel, 927 F.2d 955, 956
(7th Cir. 1991)); see also, Doeblers' Pennsylvania Hybrids, Inc.
v. Doebler, 442 F.3d 812
(3d Cir. 2006) (finding appellant
failed to properly cite to the appendix); Doe v. Sizewise
Rentals, LLC, No. 09-3409, 2010 WL 3614200, at *3 (D.N.J. Sept.
8, 2010) (stating that “[n]either the Court nor Defendants
2 Document 30 is plaintiffs’ brief in opposition to defendant
Norman’s, now mooted, motion to dismiss. Since Norman is not
moving for dismissal at this time, this opposition brief will
not be considered by the Court.
12
should be required to sift through a tome of allegations to
piece together [] claims” and dismissing claim without prejudice
on motion to dismiss).
Plaintiffs have filed a complaint in this Court and are
responsible for the prosecution of their case.
It is incumbent
upon plaintiffs to properly respond to motions filed,
particularly here where the motions to amend the complaint were
granted and the motions to dismiss along with the attendant
briefing were rendered moot.
The defendants would not be
permitted to rely on a previously filed, and mooted, motion to
dismiss and, therefore, plaintiffs should not be permitted to
rely on previously filed responses.
are seasoned litigants.
Although pro se, plaintiffs
If they choose to file a complaint in
this Court, they are required to properly follow its rules and
properly respond to all motions filed.
Thus, the Court must decide whether to treat the Rowan
defendants’ motion to dismiss as unopposed, or permit them to
rely on their previous briefs.
See Estate of Casella v.
Hartford Life Ins. Co., No. 09–2306, 2009 WL 2488054, at *2
(D.N.J. Aug. 11, 2009) (even if unopposed, a motion to dismiss
must be addressed on the merits) (citing Stackhouse v.
Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991)).
Here as a matter
of prudence, the Court will review the previous submissions and
13
collectively treat them as one response to the motion presently
before the Court.
A. Standing to Bring ADA and NJLAD Claims
Plaintiffs' claims for discrimination in violation of the
ADA and NJLAD will be dismissed on grounds that they lack
standing to bring such claims.
To present a prima facie case
for discrimination claims arising under the ADA and NJLAD, the
plaintiff must be disabled.
See 42 U.S.C. § 12182; N.J.S.A.
10:5–12(f).
As the Court stated previously in Cottrell v. Rowan
University, 786 F.Supp.2d 851, 858 (D.N.J. 2011):
Plaintiffs are not disabled. Cottrell is
the mother of a disabled child, and Holland
is Cottrell's companion and fellow
caregiver. The disabled child is not a
plaintiff in this case. It is only because
of plaintiffs' relationship with the
disabled child, who plaintiffs state
requires constant care and attention, that
they are lawfully entitled to park in
handicapped parking spaces. As this Court
noted in a different case involving these
plaintiffs, “plaintiffs have not provided
any basis that the ADA and NJLAD requirement
that a plaintiff be disabled should be
extended to include caregivers of a disabled
person. Simply because a person is
authorized by law to park in a handicapped
space does not mean he is ‘disabled’ in the
context of an ADA or NJLAD discrimination
claim.” Cottrell v. J & R Discount Liquor
Gallery, Inc., 2009 WL 1085729, *4 (D.N.J.
April 21, 2009) (NLH). Consequently,
because plaintiffs are not disabled, they do
14
not have standing to bring a discrimination
claim under the ADA or NJLAD. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)
(providing that in order to establish an
injury in fact, a plaintiff must have
suffered an invasion of a legally protected
interest).
Plaintiffs have not alleged in their second amended
complaint that they are disabled.
Thus, they have not alleged
the requisite elements for a discrimination claim.
Accordingly,
plaintiffs lack standing and their claims for discrimination in
violation of the ADA and NJLAD will be dismissed.
B.
Retaliation under the ADA and NJLAD
Plaintiffs’ claims for retaliation will be dismissed.
In
contrast to a discrimination claim, a claim for retaliation
under the ADA and NJLAD does not require a plaintiff to
demonstrate that he is disabled. 3
Krouse v. American Sterilizer
3 However, the only relief available to plaintiffs for
retaliation under the ADA is prospective injunctive relief. See
42 U.S.C. § 12188(a); Goodwin v. C.N.J., Inc., 436 F.3d 44, 50
(1st Cir. 2006) (recognizing that section 12188(a)(1) does not
contemplate an award of money damages in suits brought by
private parties). By contrast, NJLAD has no such limitations on
relief. See N.J. Stat. Ann. § 10:5-13; Pinto v. Spectrum
Chemicals and Laboratory Products, 985 A.2d 1239, 1249 (N.J.
2010) (stating that cases under the NJLAD “provide various
remedies for the violation of statutory rights, including
compensatory damages, equitable relief, and attorneys' fees.”).
Although plaintiffs do not need to show they are disabled to
bring a retaliation claim, for an ADA claim, they need to show
they have standing by demonstrating a real and immediate threat
15
Co., 126 F.3d 494, 502 (3d Cir. 1997) (“Unlike a plaintiff in an
ADA discrimination case, a plaintiff in an ADA retaliation case
need not establish that he is a ‘qualified individual with a
disability.’”).
The ADA and NJLAD make it unlawful to retaliate
against or intimidate any individual because he or she has
opposed any act or practice made unlawful by the ADA or NLJAD.
See 42 U.S.C. § 12203; N.J.S.A. 10:5–12(d), (e).
“To establish a prima facie case of retaliation under the
ADA [and NJLAD], Cottrell and Holland [a]re required to show:
(1) they engaged in a statutorily protected expression; (2) they
suffered an adverse action; and (3) the adverse reaction was
of future harm. See City of Los Angeles v. Lyons, 461 U.S. 95,
111 (1983). Although plaintiffs have stated that they have
taken their daughter to classes at Rowan, establishing past
patronage of Rowan, they have not alleged they intend to do so
in the future. See Cottrell v. Good Wheels, No. 08-1738, 2009
WL 3208299, at *6 (D.N.J. Sept. 28, 2009). Even if the Court
were to assume plaintiffs have standing to bring an ADA
retaliation claim, as discussed above, the claim fails.
Plaintiffs ask the Court to enjoin the defendants from
prohibiting them from entering Rowan’s campus and to enjoin
defendants from initiating legal action or criminal complaints
against plaintiffs for entering the campus or for taking
reasonable and good faith actions to enforce the ADA and NJLAD.
In other words, they are asking the Court to lift the ban.
Because plaintiffs have not alleged facts that could show that
defendants instituted the ban in violation of the ADA, or any
other statute, the ban is valid. The ban was instituted against
plaintiffs in response to complaints of harassment and Rowan
University is permitted to enforce the ban. Plaintiffs have not
presented any facts that could show the terms of the ban are
unreasonable or in violation of any law.
16
causally related to the protected expression.” 4
Cottrell v.
Zagami, LLC, 537 Fed.Appx. 46, 47 (3d Cir. 2013) (citing Higdon
v. Jackson, 393 F.3d 1211, 1219 (11th Cir. 2004); Fogleman v.
Mercy Hosp., Inc., 283 F.3d 561, 567–68 (3d Cir. 2002)).
The Court finds that at the prima facie stage, the
plaintiffs have met the first two elements of their retaliation
claim, but not the third.
The Court will assume at this stage
that the plaintiffs’ handicap parking space activism on Rowan’s
campus was a protected activity.
The plaintiffs have also
stated that they were adversely affected by the ban from Rowan’s
campus.
Plaintiffs have not, however, alleged facts that could
show a causal relation.
The history between the plaintiffs and Rowan University is
well known to the parties and to this Court.
See, e.g.,
Cottrell v. Rowan University, 786 F.Supp.2d 851, 859 (D.N.J.
2011).
Rowan University has banned plaintiffs previously for
harassing and disruptive behavior on its campus. 5
Id.
Although
4 The same showing of proof required for an ADA claim is
required for the NJLAD claim and, therefore, the same standard
is used. See Zagami, 537 Fed.Appx. at 48 n. 1 (“[T]he same
showings are required to establish a retaliation claim under
both the NJLAD and the ADA”) (citing Tartaglia v. UBS
PaineWebber, Inc., 197 N.J. 81, 961 A.2d 1167, 1192 (2008)).
5 The plaintiffs had been previously banned in 2006 from Rowan’s
campus “...based on ten documented incidents over the course of
three months where plaintiffs acted hostile, harassing,
17
plaintiffs had brought a retaliation claim pursuant to the ADA
and NJLAD against Rowan University, the Court found that “it was
their harassing and volatile behavior — and not their
documentation of parking violations — that was the basis for
their ban” and denied the claim.
Plaintiffs bring a similar claim in this case.
They argue
that they were banned from Rowan’s campus for policing the
handicapped parking spots.
The facts show, however, that
plaintiffs were banned based on their disruptive behavior toward
Norman, a student at Rowan.
As stated by plaintiffs in their
second amended complaint, “twenty days prior to the incident
[with Norman] Plaintiff Holland video documented a vehicle
parked in a designated handicap space displaying a (sic) expired
temporary handicap placard T307396 issued to Keyshonna Norman
issued date May 21, 2009 on the dashboard.
Ms. Norman was not
present.”
There is no allegation that the Rowan defendants banned
plaintiffs based on the activity that occurred twenty days
disruptive, and aggressive to Rowan University staff, students,
and visitors, including a nine year old child, a diabetic
pregnant woman, and a student with spinal meningitis. Cottrell,
786 F.Supp.2d at 859. In addition, in September 2008, Rowan
sent plaintiffs a warning letter based on two documented
incidents regarding plaintiffs' harassing, disruptive, and
threatening behavior. Id.
18
before the incident.
It was only after the verbal confrontation
with Norman on April 1, 2010, which prompted Norman to report
the incident to the Rowan police, that defendants issued the
ban.
Thus, the facts as plead show that it was not plaintiffs’
policing and videotaping of handicap parking spots that prompted
the ban, but rather, the intentional confrontation of a Rowan
student by plaintiffs.
See Zagami, 537 Fed.Appx. at 48
(concluding that Cottrell and Holland did not establish a prima
facie case of causation where the letter banning Cottrell from
Landmark was based on her “prior actions ... disruptive of the
regular and essential operations” of the business).
As this Court has previously stated, “[e]ven if plaintiffs
had come onto campus to protect disabled persons' parking
rights, [it] does not mean they can conduct themselves in any
manner without consequence.
The cloak of the ADA does not
extend its protections that far.”
60.
Rowan, 786 F.Supp.2d at 859-
Therefore, the ban issued by the Rowan defendants was based
on plaintiffs’ harassing and disruptive behavior and not because
of any protected activity.
Plaintiffs’ retaliation claim will
be dismissed.
C. Federal Constitutional Claims
Plaintiffs bring a 42 U.S.C. § 1983 claim on grounds that
the Rowan defendants violated their First, Fourth and Fourteenth
19
Amendment rights. 6
Plaintiffs argue that their due process and
equal protection rights under the Fourteenth Amendment were
violated.
The Rowan defendants respond that they are entitled
to qualified immunity.
Because plaintiffs fail to make out a
constitutional violation, the Rowan defendants are entitled to
qualified immunity. 7
The doctrine of qualified immunity protects government
officials “from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
“Qualified immunity balances two important interests - the need
to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment,
6 To the extent plaintiffs are bringing an ADA claim pursuant to
§ 1983, such claim will be dismissed because the ADA provides an
exhaustive remedy. See A.W. v. Jersey City Public Schools, 486
F.3d 791 (3d Cir. 2007)(finding that remedies in comprehensive
remedial statues supplant § 1983 claims); Stine v. Pennsylvania
State Police, No. 09-944, 2010 WL 4514326, at *6 (M.D.Pa. Nov.
2, 2010) (dismissing ADA claim because “Congress foreclosed the
use of § 1983 as a vehicle for such a claim by providing Stine
with an exhaustive remedy under the ADA.”).
7 Also, because § 1983 claims may only be asserted against a
“person,” see Fields v. Essex County Probation Dept., 2011 WL
677255, *2 (N.J.Super.Ct.App.Div. 2011), these claims fail
against Rowan University, Rowan University Police Department,
Rowan University Public Safety, and Rowan Security Department.
20
distraction, and liability when they perform their duties
reasonably.”
Pearson v. Callahan, 129 S. Ct. 808, 815 (2009).
The doctrine provides a government official immunity from suit
rather than a mere defense from liability, and, thus, the issue
of whether qualified immunity applies should be decided at the
earliest possible stage in litigation.
Id.
“Qualified immunity
... gives government officials breathing room to make reasonable
but mistaken judgments, and protects all but the plainly
incompetent or those who knowingly violate the law.”
Fiore v.
City of Bethlehem, 510 F. App’x 215, 219-20 (3d Cir. 2013)
(citing Messerschmidt v. Millender, 132 S. Ct. 1235, 1244
(2012)) (internal quotation marks and citations omitted).
Qualified immunity attaches if the official can demonstrate
his or her conduct was “objectively reasonable.”
457 U.S. at 818.
See Harlow,
“There are two prongs to the objective
reasonableness inquiry: first, whether the plaintiff's
constitutional or statutory rights were in fact violated;
second, whether it would have been clear to a reasonable officer
that the conduct was unlawful.”
Davis v. Malitzki, 451 F. App’x
228, 232 (3d Cir. 2011) (citing Saucier v. Katz, 533 U.S. 194,
200–01 (2001)).
If the answer to either question is “no,” the
analysis may end there.
See Pearson, 129 S. Ct. at 816; see
also Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002) (“If
21
the plaintiff fails to make out a constitutional violation, the
qualified immunity inquiry is at an end; the [official] is
entitled to immunity.”).
1. First Amendment
Plaintiffs’ First Amendment retaliation claim will be
dismissed for failure to allege facts that could show that the
adverse action was prompted by plaintiffs’ protected conduct.
To establish a First Amendment retaliation claim, plaintiffs
must prove the following elements: (1) they engaged in
constitutionally protected conduct; (2) defendants took adverse
action sufficient to deter a person of ordinary firmness from
exercising his rights; and (3) the adverse action was prompted
by plaintiffs’ protected conduct.
523, 530 (3d Cir. 2003).
Mitchell v. Horn, 318 F.3d
Even if plaintiffs’ actions were
protected First Amendment activity, and their ban from campus
sufficiently deterred them from continuing those activities, for
the same reasons expressed above with regard to plaintiffs’ ADA
and NJLAD retaliation claims, plaintiffs have not alleged
sufficient facts in support of a plausible claim that their ban
from campus was motivated by their protected activities. 8
8 Moreover, simply because a place is open to the public, and
the public is allowed to roam about unhindered, it is not per se
converted into a public forum. United States v. Grace, 461 U.S.
22
Accordingly, plaintiffs’ First Amendment claim fails. 9
2. Fourth Amendment
Plaintiffs’ Fourth Amendment claim will be dismissed
because plaintiffs have failed to allege facts that could show
the absence of probable cause.
To state a Fourth Amendment
claim for false arrest, 10 a plaintiff must allege two elements:
“(1) that there was an arrest; and (2) that the arrest was made
without probable cause.” James v. City of Wilkes–Barre, 700 F.3d
675, 680 (3d Cir. 2012) (citing Groman v. Twp. of Manalapan, 47
F.3d 628, 634 (3d Cir. 1995) and Dowling v. City of
Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)).
Probable cause
exists “whenever reasonably trustworthy information or
circumstances within a police officer's knowledge are sufficient
171, 177 (1983); Greer v. Spock, 424 U.S. 828, 837 (1976).
9 Plaintiffs make the argument in one of their opposition briefs
that they have a right to videotape under the First Amendment.
Plaintiffs have not made allegations that could show the ban was
due to plaintiffs’ videotaping. Rather, the facts as alleged
demonstrate that the ban from Rowan’s campus was due to their
harassing and disruptive behavior.
To the extent plaintiffs invoke the Fourteenth Amendment in
support of their false arrest claim, such claim must be
dismissed. It is well established in the Third Circuit that an
arrest without probable cause is a Fourth Amendment violation
actionable under § 1983. See Berg v. County of Allegheny, 219
F.3d 261, 268–69 (3d Cir. 2000) (collecting cases); see also,
Albright v. Oliver, 510 U.S. 266, 274 (1994) (a section 1983
claim for false arrest may be based upon an individual's Fourth
Amendment right to be free from unreasonable seizures).
23
10
to warrant a person of reasonable caution to conclude that an
offense has been committed by the person being arrested.”
United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002) (citing
Beck v. State of Ohio, 379 U.S. 89, 91 (1964)).
“Probable cause
... requires more than mere suspicion; however, it does not
require that the officer have evidence to prove guilt beyond a
reasonable doubt.” Orsatti v. New Jersey State Police, 71 F.3d
480, 482–83 (3d Cir. 1995).
Here, Cottrell was charged with theft by unlawful taking
and disorderly conduct in violation of N.J.S.A. 2C:20-3(a)
N.J.S.A. 2C:33-4(c).
The Rowan defendants arrested Cottrell on
the basis of the sworn statements by Norman in a criminal
complaint.
Based on the allegations in plaintiffs’ second
amended complaint, Norman alleged that Cottrell: walked around
her car several times staring at her and looking in her
windshield at her handicap placards; pointed to her expired and
unexpired placards in her vehicle; repeatedly asked her to show
her the placard although it was visible through the windshield;
went to the front of Norman’s vehicle and took the handicap
placard; 11 denied to Norman that she was harassing her; and that
11 It is not clear whether it was alleged that Cottrell actually
took the placard or only attempted to remove it.
24
Norman called Cottrell “a few ‘F’ words” and a “thief.”
Norman
also stated in her criminal complaint that it was not the first
time Cottrell harassed her. 12
The sworn statements made by Norman in a criminal complaint
filed with the Rowan Police Department establish probable cause
for the arrest.
Plaintiffs have failed to allege facts that
could demonstrate the absence of probable cause necessary to
establish a § 1983 claim for false arrest and, therefore, this
claim will be dismissed.
3. Fourteenth Amendment
a. Due Process
The Fourteenth Amendment provides that no “State [shall]
deprive any person of life, liberty, or property, without due
process of law.”
U.S. Const. amend. XIV, § 1.
In order to
establish a violation of due process, plaintiffs must establish
that “(1) [they were] deprived of an individual interest that is
encompassed within the Fourteenth Amendment’s protection of
life, liberty and property, and (2) the procedures available to
[them] did not provide him with due process of law.”
Hill v.
Borough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006).
Plaintiffs have not shown either.
12 The Court notes that plaintiffs allege that the statements
made by Norman were false.
25
First, plaintiffs have not articulated how they have a
constitutionally protected, substantive right to come onto
Rowan’s campus.
See Albright v. Oliver, 510 U.S. 266, 272
(1994) (explaining that substantive due process protection has
“for the most part been accorded to matters relating to
marriage, family, procreation, and the right to bodily
integrity”); Adderley v. State of Florida, 385 U.S. 39, 47
(1966) (“The State, no less than a private owner of property,
has power to preserve the property under its control for the use
to which it is lawfully dedicated.”).
Even if they did, plaintiffs have not shown how that right
was taken from them without proper procedures.
Plaintiffs were
informed of, and provided, a hearing regarding their 2010 ban
from campus, the opportunity to further appeal that hearing
decision, and the ability to appeal that decision to the New
Jersey courts.
Plaintiffs appealed the ban and an
administrative hearing was held.
The appeal was denied and the
ban was upheld to remain in effect until 2015.
Plaintiffs did
not appeal the administrative appeal to the New Jersey state
court.
See N.J. Ct. R. 2:2-3(a)(2)(The New Jersey Superior
Court, Appellate Division, has appellate jurisdiction over
appeals of final agency decisions).
The numerous opportunities
to challenge the validity of Rowan’s decision to ban plaintiffs
26
from campus more than satisfies the Fourteenth Amendment’s due
process requirement.
See Cleveland Bd. of Ed. v. Loudermill,
470 U.S. 532, 542 (1985) (“The core of due process is the right
to notice and a meaningful opportunity to be heard.”).
Simply
because plaintiffs disagreed with the procedures or did not
avail themselves of them does not mean those procedures were
lacking in due process.
Therefore, their Fourteenth Amendment due process claim
will be dismissed.
b. Equal Protection
Similarly, plaintiffs have not made out an equal protection
claim.
In order to prove a claim under the Equal Protection
Clause, plaintiffs must show that absent a rational basis for
doing otherwise, they were treated differently from similarly
situated persons.
Village of Willowbrook v. Olech, 528 U.S.
562, 564 (2000); see also Vacco v. Quill, 521 U.S. 793, 799
(1997) (explaining that the Equal Protection Clause, which
“commands that no State shall ‘deny to any person within its
jurisdiction the equal protection of the laws,’” does not create
any substantive rights, and “[i]nstead, . . . embodies a general
rule that States must treat like cases alike but may treat
unlike cases accordingly.” . . . “If a legislative
classification or distinction neither burdens a fundamental
27
right nor targets a suspect class, we will uphold [it] so long
as it bears a rational relation to some legitimate end”)
(citations omitted).
Plaintiffs have not alleged any facts that could make out a
plausible claim that non-ADA-activists who have engaged in
similar conduct have not been similarly banned from campus.
Consequently, plaintiffs’ equal protection claim also fails.
Because plaintiffs have failed to allege facts in support
of their Constitutional claims, the Rowan defendants are
entitled to qualified immunity. 13
See Davis, 451 F. App’x at 232
(first prong of qualified immunity test is whether the
plaintiff's constitutional or statutory rights were in fact
violated).
Accordingly, these claims will be dismissed.
D. New Jersey Civil Rights Act
In addition to their federal civil rights claims,
plaintiffs assert a claim under the analogous New Jersey Civil
13 Even if plaintiffs properly alleged facts in support of a
Constitutional violation, they have not demonstrated that the
defendants’ conduct was objectively unreasonable. See Harlow,
457 U.S. at 818. Defendants’ decision to arrest Cottrell was
based on the allegations of Norman, whose statements they had no
reason to doubt. In addition, plaintiffs had a history of
exhibiting disruptive and harassing behavior toward Rowan
students and staff. Thus, defendants’ reliance on Norman’s
statements was reasonable.
28
Rights Act (NJCRA). 14
See N.J.S.A. 10:6–1.
Like Section 1983,
NJCRA is a means of vindicating substantive rights and is not a
source of rights itself.
Gormley v. Wood-El, --- A.3d ----,
2014 WL 2921824, at *9 (N.J. Jun. 30, 2014).
Plaintiffs seek redress pursuant to the NJCRA based on the
same facts plead in support of their Federal civil rights
claims.
For the same reasons that their § 1983 claims will be
dismissed, plaintiffs’ state civil rights claims will be
dismissed.
Cluver v. Borough of Sayreville, 557 Fed.Appx. 180,
182 (3d Cir. 2014) (affirming dismissal of claims under New
Jersey Civil Rights Act because claim was precluded due to
finding that defendant was entitled to qualified immunity);
14 The New Jersey Civil Rights Act provides, in relevant part,
that:
Any person who has been deprived of any
substantive due process or equal protection
rights, privileges or immunities secured by
the Constitution or laws of the United
States, or any substantive rights,
privileges or immunities secured by the
Constitution or laws of this State, or whose
exercise or enjoyment of those substantive
rights, privileges or immunities has been
interfered with or attempted to be
interfered with, by threats, intimidation or
coercion by a person acting under color of
law, may bring a civil action for damages
and for injunctive or other appropriate
relief.
N.J.S.A. 10:6–2(c).
29
Trafton v. City of Woodbury, 799 F.Supp.2d 417, 443–44 (D.N.J.
2011) (“This district has repeatedly interpreted NJCRA
analogously to
§ 1983.”)(citing Chapman v. New Jersey,
No. 08–4130, 2009 WL 2634888, *3 (D.N.J. Aug. 25, 2009));
Armstrong v. Sherman, No. 09–716, 2010 WL 2483911, *5 (D.N.J.
June 4, 2010) (“[T]he New Jersey Civil Rights Act is a kind of
analog to section 1983 ....”). 15
E. Malicious Use of Process
Defendants move for dismissal of plaintiffs’ malicious use
of process claim.
However, as noted in the Court’s Order
15 Plaintiffs state that pursuant to Love v. New Jersey Div. of
Youth & Family Services, No. 07-3661, 2010 WL 2950019, at *2 n.
10 (D.N.J. July 22, 2010), qualified immunity is not a defense
under the New Jersey Constitution or NJCRA. The Love case does
not support this proposition. In Love, the Court concluded that
even though it “found no caselaw addressing the question of
whether persons subject to liability under the New Jersey Civil
Rights Act have a qualified immunity defense, ... the
legislative history of the Civil Rights Act states that the Act
was ‘modeled on’ § 1983, the Massachusetts Civil Rights Act, and
the Maine Civil Rights Act.” Id. (citations omitted). The
Court determined that because qualified immunity is a defense to
all three, it “assume[d] without deciding that, as a legal
matter, state officials sued in their individual capacity under
the New Jersey Civil Rights Act do have a qualified immunity
defense available to them.” Id. (citations omitted).
Therefore, the Court in Love, assumed that qualified immunity
applied. Moreover, the Third Circuit has ruled that qualified
immunity is a defense under the NJCRA. See Cluver, 557 Fed.Appx.
at 182 (“the New Jersey Civil Rights Act claim against Anderson
was precluded due to the finding that he was entitled to
qualified immunity”).
30
entered December 4, 2013, plaintiffs' request for leave to
assert a malicious use of process claim against the Rowan
defendants was denied as futile.
Thus, there is no malicious
use of process or malicious prosecution claim 16 against the Rowan
defendants. 17
16 See Pitcock v. Kasowitz, Benson, Torres & Friedman, L.L.P.,
46 A.3d 586, 585 n. 1 (N.J.Super.A.D. 2012) (explaining that in
the State of New Jersey the tort is called malicious use of
process). Generally, the Court refers to the state law claim as
malicious use of process except where the terms malicious
prosecution is used in the case law.
In addition, plaintiffs’ malicious use of process claim is
invalid for failure to demonstrate lack of probable cause (as
discussed supra). To the extent plaintiffs are bringing a
Constitutional claim of malicious prosecution, the claim is
invalid for failure to show lack of probable cause. See Johnson
v. Bingnear, 441 F. App'x 848, 851 (3d Cir. 2011) (“In order to
prevail on a claim of malicious prosecution, a litigant must
demonstrate that: ‘(1) the defendants initiated a criminal
proceeding; (2) the criminal proceeding ended in the plaintiff's
favor; (3) the proceeding was initiated without probable cause;
(4) the defendants acted maliciously or for a purpose other than
bringing the plaintiff to justice; and (5) the plaintiff
suffered deprivation of liberty consistent with the concept of
seizure as a consequence of a legal proceeding.’”)(citing
McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir.
2009)). Likewise, any claim for malicious use of process under
New Jersey law fails because plaintiffs have not shown lack of
probable cause. See Lind v. Schmid, 67 N.J. 255, 262, 337 A.2d
365, 368 (1975) (plaintiff must show: “(1) that the criminal
action was instituted by the defendant against the plaintiff,
(2) that it was actuated by malice, (3) that there was an
absence of probable cause for the proceeding, and (4) that it
was terminated favorably to the plaintiff.”) (citations
omitted). At this stage, the malicious use of process claim
fails for lack of probable cause and the Court does not address
whether plaintiffs could plead sufficient proof as to the other
elements.
17
31
VI.
CONCLUSION
For the foregoing reasons, the Rowan defendants’ motion to
dismiss will be granted. 18
Defendants Rowan University, Rowan
University Police Dept., Rowan University Public Safety Dept.,
Michael Kantner, Rowan Security Dept., Rowan Police Lieutenant
John Malinski, Rowan Police Officer Siobhan McClintok, Rowan
Police Officer Ryan Brennan, Rowan Police Officer Carrie Rathof,
18 The Rowan defendants also argued that plaintiffs’ ADA claim
was untimely. Plaintiffs filed their complaint on April 2,
2012, not April 3, 2012 as defendants state and, therefore,
plaintiffs’ claim was not barred by the statute of limitations.
In addition, the Rowan defendants argue that as a public
agency, Rowan is immune from suit. The Court finds that, at the
motion to dismiss stage, defendants have not come forward with
sufficient evidence in support of the Fitchik factors to show
that they are entitled to sovereign immunity. See Fitchik v.
New Jersey Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir.
2008) (outlining factors to consider whether state is the real
party in interest and whether eleventh amendment immunity
extends to an entity). As defendants note, the law is unsettled
on this question in this district. Although defendants argue
that the Governor of New Jersey’s “Reorganization Plan” provides
more oversight of state colleges, including Rowan, defendants
have not provided sufficient facts to show “(1) whether the
payment of the judgment would come from the state; (2) what
status the entity has under state law; and (3) what degree of
autonomy the entity has.” Bowers v. National Collegiate
Athletic Ass'n, 475 F.3d 524, 546 (3d Cir. 2007) (finding that
Rutgers, the State University of New Jersey, was not entitled to
Eleventh Amendment immunity). Therefore, the Court will deny
defendants’ motion to dismiss on grounds of Eleventh Amendment
immunity without prejudice.
32
and Rowan Police Sergeant Frank Davey will be dismissed.
An Order consistent with this Opinion will be
entered.
s/Noel L. Hillman
At Camden, New Jersey
Dated:
NOEL L. HILLMAN, U.S.D.J.
July 25, 2014
33
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