DARE v. TOWNSHIP OF HAMILTON et al

Filing 19

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 11/18/13. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JASON D. DARE,
Plaintiff,

Civil No. 13-1636 (JBS/JS)

v.
OPINION

TOWNSHIP OF HAMILTON, et al.,
Defendants.

APPEARANCES:
Conrad J. Benedetto, Esq.
Law Offices of Conrad J. Benedetto
1814 East Route 70, Suite 350
Cherry Hill, NJ 08003
-andRaheem S. Watson, Esq.
Watson Duncan LLC
BNY Mellon Center
1735 Market Street, Suite 3750
Philadelphia, PA 19103
Attorneys for Plaintiff Jason D. Dare
A. Michael Barker, Esq.
Barker, Scott & Gelfand
Linwood Greene
210 New Road, Suite 12
Linwood, NJ 08221
Attorney for Defendants Township of Hamilton, Police Chief
Stacy Tappeiner, Sergeant Christopher Gehring, Captain
Michael Petuskey, Patrol Officer James A. Esposito

SIMANDLE, Chief Judge:
I.

Introduction
This matter comes before the Court upon a motion to dismiss

the Complaint against Defendant Police Chief Stacy Tappeiner

(“Chief Tappeiner”).

[Docket Item 11.]

Because the Defendants

previously filed an answer, the Court will construe this motion
as a motion for judgment on the pleadings pursuant to Rule 12(c)
of the Federal Rules of Civil Procedure.
The principal issue presented is whether Plaintiff’s
Complaint alleges sufficient facts to subject Chief Tappeiner to
liability under 42 U.S.C. §§ 1983, 1985, and 1986, as well as
the New Jersey Civil Rights Act (“NJCRA”), based on violations
of the federal and state constitutions.

Specifically, Defendant

requests that Plaintiff’s claims against Chief Tappeiner be
dismissed because Plaintiff’s Complaint fails to allege any
facts to suggest 1) Chief Tappeiner had any personal involvement
in the alleged constitutional violations or 2) Chief Tappeiner
created a policy or custom that resulted in the alleged
violations.

Plaintiff has not filed opposition papers to this

motion.
For the reasons discussed below, the Court will grant
judgment on the pleadings in favor of Defendant Chief Tappeiner.
II.

Background
Plaintiff, Jason D. Dare, brought this action arising from

an incident in which Plaintiff was arrested and charged with
Driving While Intoxicated, Refusal to Submit to Chemical Breath
Testing, and Careless Driving following an automobile accident
involving a deer.
2 

The facts set forth here are those alleged in Plaintiff’s
Complaint which the Court must accept as true for purposes of a
Rule 12(b)(c) motion.
Plaintiff is currently and was for all relevant times, a
Trooper II of the State of New Jersey Police Department.
(Compl. ¶ 2.)

Plaintiff is the brother of Patrol Officer

Nicholas J. Dare, Sr. a former Patrol Officer of the Township of
Hamilton Police Department.

(Id. ¶ 3.)

Nicholas J. Dare, Sr.

is a named party in litigation against Defendant Township of
Hamilton concerning harassment, discrimination, and retaliation
against Nicholas J. Dare, Sr. in connection with his employment.
(Id.)
On or about December 16, 2011, Plaintiff was involved in an
accident involving a deer on Route 40 in Hamilton Township.
(Id. ¶ 10.)

In avoiding the deer, Plaintiff’s vehicle made

contact with bushes and Plaintiff struck his head.

(Id. ¶ 11.)

Defendant Officer Esposito responded to the scene of the
accident and was advised by Plaintiff that Plaintiff’s head was
hurting because he struck his head while avoiding the deer.
(Id. ¶ 12.)

Officer Esposito placed Plaintiff in the back seat

of his police car to transport him to his home or the hospital.
(Id. ¶ 13.)

Officer Esposito then called the Hamilton Township

Police Department advising that Plaintiff had been involved in
an accident.

(Id. ¶ 13.)

Soon thereafter, Defendant Sergeant
3 

Gehring, along with Hamilton Township Police Officers Trenton
Lee and L. Randolph arrived at the scene of the accident.
¶ 14.)

(Id.

Officer Esposito advised Officer Randolph that Plaintiff

was “Nick’s brother,” referring to Hamilton Township Police
Officer Nicholas J. Dare, Sr.

(Id. ¶ 16.)

Upon arrival, Sergeant Gehring spoke with Officer Esposito,
then ordered Plaintiff out of the vehicle for field sobriety
tests.

(Id. ¶ 17.)

Officer Lee proceeded to conduct field

sobriety tests on Plaintiff.

(Id. ¶ 18.)

ordered that Plaintiff be arrested.

Sergeant Gehring then

(Id. ¶ 19.)

Plaintiff was

handcuffed and returned to the back seat of Officer Esposito’s
patrol car.

(Id.)

Plaintiff was arrested for suspected Driving

While Intoxicated and taken to the police station for
processing.

(Id. ¶ 20.)

Plaintiff repeatedly told Sergeant

Gehring that he hurt his head in the accident and could not
understand what was going on at the police station.

(Id. ¶ 21.)

Nevertheless, Sergeant Gehring charged Plaintiff with Refusal to
Submit to Chemical Breath Testing.

(Id.)

Defendant Captain

Petuskey then contacted Municipal Court Judge H. Robert Switzler
to request permission to forcibly take blood from Plaintiff at
the hospital if he did not consent, but Judge Switzler denied
Captain Petuskey’s request.

(Id. ¶ 22.)

Plaintiff was also

charged with Careless Driving, despite having no witnesses to
Plaintiff’s driving prior to the accident with the deer.
4 

(Id. ¶

23.)

Defendants then transported Plaintiff to the hospital for

injuries to his head sustained in the accident.

(Id. ¶ 24.)

As a result of the charges against Plaintiff, Plaintiff’s
employer, State of New Jersey Colonel/Superintendent Joseph
Fuentes immediately suspended Plaintiff’s employment without pay
and allowances and issued Internal Investigation/Administrative
Charges against Plaintiff.

(Id. ¶¶ 25-26.)

After a trial

before the Honorable H. Robert Switzler on July 10, 2012,
Plaintiff was found not guilty of all charges against him.

(Id.

¶¶ 27-31.)
Plaintiff alleges that as the result of Plaintiff’s
familial relationship with Nicholas J. Dare, Sr. and the pending
employment discrimination, harassment, and retaliation claims
between Nicholas J. Dare, Sr. and Defendants, Plaintiff was
targeted and retaliated against by Defendants, including on
December 16, 2011, resulting in the deprivation of Plaintiff’s
civil rights under the New Jersey and United States
Constitutions.

(Id. ¶ 32.)

Plaintiff filed this civil action in the Superior Court of
New Jersey, Law Division, Atlantic County, on February 18, 2013.
On March 18, 2013, Defendants removed the action to the United
States District Court for the District of New Jersey pursuant to
28 U.S.C. § 1441 and 28 U.S.C. § 1331 on the basis of federal

5 

question jurisdiction.

[Docket Item 1-1.]

Answer on March 22, 2013.

Defendants filed an

[Docket Item 2.]

On August 5, 2013, counsel for Defendants filed the instant
motion to dismiss claims against Chief Tappeiner pursuant to
Federal Rule of Civil Procedure 12(b)(6).

[Docket Item 11-1.]

Specifically, Defendants argue that there is an insufficient
factual basis to assert a claim for Chief Tappeiner’s individual
liability because Chief Tappeiner is only mentioned in the
Complaint when named as a Defendant in the “Parties” section.
(Def. Br. [Docket Item 11-1] at 9.)

Further, the Complaint only

contains a single conclusory allegation that “upper management
of the Township of Hamilton Police Department” participated in
the deprivation of Plaintiff’s rights.
III.

(Id. at 2.)

Discussion
A.

Rule 12(c) Standard

A defendant may move to dismiss a complaint before or after
filing an answer.

Fed.R.Civ.P. 12(b)(6) and (c); see also

Borough of Sayreville v. Union Carbide Corp., 923 F. Supp. 671,
675-76 (D.N.J. 1996).

A motion to dismiss made after an answer

is filed is a motion for judgment on the pleadings pursuant to
Rule 12(c) of the Federal Rules of Civil Procedure.
12(h)(2).

Fed.R.Civ.P.

Here, Defendants’ motion to dismiss Plaintiff’s

claims against Chief Tappeiner was filed after the Answer and

6 

shall be construed as a motion for judgment on the pleadings
pursuant to Rule 12(c).
The differences between Rules 12(b)(6) and 12(c) are purely
procedural.

Turbe v. Gov't of the Virgin Islands, 938 F.2d 427,

428 (3d Cir. 1991).
applied for both.

The pleading standards of Rule 12(b)(6) are

Id.

Thus, the Court must “accept all factual

allegations as true” and construe the complaint “in the light
most favorable to the plaintiff.”

Phillips v. County of

Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v.
Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
In 2007, the Supreme Court abandoned its previous standard
for notice pleading in its decision in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007). In Twombly, the Court explained
that:
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the “grounds” of his
“entitle[ment] to relief” requires more than label and
conclusions, and a formulaic recitation of the elements of
a cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative
level.
Twombly, 550 U.S. at 555 (internal citations omitted).

A

complaint need not provide detailed factual allegations, but it
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.
570.

Id. at

The Supreme Court elaborated on and clarified the Twombly
7 

standard in a subsequent decision, Ashcroft v. Iqbal, 556 U.S.
662 (2009).

In Iqbal, the Supreme Court stated:

To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a
claim to relief that is plausible on its face.” A claim has
facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a
probability requirement,” but it asks for more than a sheer
possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are “merely consistent with” a
defendants liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to relief.’”
Two working principles underlie our decision in Twombly.
First, the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,
do not suffice.
Iqbal, 556 U.S. at 678 (internal citations omitted).
As such, when a Court is deciding a motion under Rule
12(c), it must look closely at the complaint to determine
whether it states a facially plausible claim to relief, composed
of factual content and not merely conclusory allegations
reflecting the cause of action.
B.

42 U.S.C. § 1983

Plaintiff brings claims against Defendants under 42 U.S.C.
§ 1983.

Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory . .
. subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
8 

liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . . .
42 U.S.C.A. § 1983.

To state a claim for relief under section

1983, a plaintiff must allege: 1) the violation of a right
secured by the Constitution or laws of the United States and 2)
that the alleged deprivation was committed or caused by a person
acting under color of state law.

West v. Atkins, 487 U.S. 42,

48 (1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255–56 (3d
Cir. 1994).

See also Malleus v. George, 641 F.3d 560, 563 (3d

Cir. 2011).
Neither Plaintiff’s Complaint nor Defendants’ motion
clarifies whether this suit addresses Chief Tappeiner in his
personal or official capacity, or both.1

As such, the Court must

first consider the capacity in which Plaintiff directs the
claims against Chief Tappeiner.2
The Supreme Court has made clear that official capacity
suits are simply an alternative to “pleading an action against

1

  Defendants’ motion contains contradictory statements.
Defendants state in the preamble of the motion to dismiss: “This
is an insufficient factual basis to assert a claim for Chief
Tappeiner’s individual liability.” (Def. Br. [Docket Item 11-1]
at 2.) While this appears clear enough, Defendant later
concludes, “[S]ince Plaintiff is suing Chief Tappeiner in his
official capacity as the Hamilton Township’s Police Chief, any
claims against Tappeiner are duplicative of Plaintiff’s claims
against Hamilton Township itself.” (Id. at 9.) 
2
Plaintiff is apparently indifferent to, or not cognizant of,
this issue. Not only is the Complaint silent, but Plaintiff’s
counsel has not offered any clarification in his opposition
brief, since the motion is unopposed.
9 

an entity of which an officer is an agent.”

Kentucky v. Graham,

473 U.S. 159, 166 (1985) (quoting Monell v. New York City Dept.
of Social Services, 436 U.S. 658, 690, n.55 1978)).

“Suits

against state officials in their official capacity therefore
should be treated as suits against the State.”

Hafer v. Melo,

502 U.S. 21, 25 (1991) (citing Graham, 473 U.S. at 166).

In

contrast, personal capacity suits “seek to impose individual
liability upon a government officer for actions taken under
color of state law.”

Id.

“Thus, ‘[o]n the merits, to establish

personal liability in a § 1983 action, it is enough to show that
the official, acting under color of state law, caused the
deprivation of a federal right.’”
at 166).

Id. (quoting Graham, 473 U.S.

An official capacity action requires more because a

governmental entity is liable under section 1983 only when
official policy is “the moving force of the constitutional
violation.”

Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981)

(quoting Monell, 436 U.S. at 694).
Where, as here, the complaint does not explicitly state
whether claims are asserted against a defendant in a personal or
official capacity, the Third Circuit has instructed courts to
examine the complaints and the “course of proceedings.”

Melo v.

Hafer, 912 F.2d 628, 635 (3d Cir. 1990) (citation omitted).
Explaining its approach in Melo, the Third Circuit stated:

10 

We determined that the plaintiffs meant to sue the official
in her personal capacity for two reasons. First, the
complaints only listed the official, not the State, as a
defendant and thus the plaintiffs manifested that they only
sought to recover from the official, not the State. Melo,
912 F.2d at 636. Second, the official asserted the
qualified immunity defense throughout the course of the
proceedings. This defense is only available when government
officials are sued in their personal, not official,
capacity. Id. We determined that in raising this defense,
the official “understood that plaintiffs sought to sue her
in her personal capacity.” Id.
Garden State Elec. Inspection Servs. Inc. v. Levin, 144 F. App'x
247, 251 (3d Cir. 2005).
In Garden State, the plaintiff brought a section 1983
action against the Commissioner of New Jersey Department of
Community Affairs, among others, for failing to enforce
provisions of the state construction code.

Id. at 249.

The

Third Circuit distinguished Melo and found that the plaintiff
intended to sue the commissioner in an official capacity.
at 251-53.

Id.

First, the court noted that the complaint sought

damages from a branch of the state government, not the
commissioner.

Id. at 251.

Second, Plaintiff did not allege

“particularized allegations or facts” suggesting that the
commissioner had any involvement in the alleged misconduct.
at 252.

Id.

Finally, unlike the defendant in Melo, the commissioner

did not raise any personal immunity defenses in the answer to
suggest the defendant understood the suit was against her in her
personal capacity.

Id.
11 

Here, the complaint and course of proceedings do not lead
to a clear conclusion.

In some regards, Plaintiff’s Complaint

suggests that the claims are asserted against Chief Tappeiner in
his official capacity.

Plaintiff’s Complaint states: “At all

times material hereto, Defendants acted through its employees
[sic] of the Hamilton Township Police Department, including the
above named, within the scope and course of their employment and
by color of State law and pursuant to an official custom, policy
and/or practice.”

(Compl. ¶ 9.)

Additionally, as in Garden

State, Plaintiff does not allege “particularized allegations or
facts” suggesting Chief Tappeiner’s direct involvement in the
alleged misconduct.
While the above supports a claim against Chief Tappeiner in
his official capacity, the other factors do not weigh in either
direction.

First, unlike Melo, the Complaint lists Chief

Tappeiner, as well as the Township of Hamilton as Defendants.
(Id. ¶ 4-5.)

Second, considering the damages sought by

Plaintiff is unhelpful because the Complaint attached to
Defendants’ Notice of Removal appears to be missing a page
pertaining to damages.

Third, Defendants’ Answer also fails to

provide any guidance as it raises defenses jointly, severally,
and in the alternative on behalf of all Defendants including
immunity, partial immunity, and qualified immunity, applicable
to both personal capacity and official capacity suits.
12 

Because the court is unable to determine based on the
Complaint and course of proceedings whether Plaintiff asserts
claims against Chief Tappeiner in his personal or official
capacity, the court will consider both types of claims for the
purposes of this motion.
1.

Official Capacity Under Section 1983

As noted above, “[s]uits against state officials in their
official capacity . . . should be treated as suits against the
State.”

Hafer v. Melo, 502 U.S. 21, 25 (1991) (citing Graham,

473 U.S. at 166).

An official capacity action requires proof

that official policy is “the moving force of the constitutional
violation.”

Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981)

(quoting Monell, 436 U.S. at 694).

Here, Plaintiff does not

allege any specific facts to suggest the Chief Tappeiner’s
personal involvement in the alleged violations.

Nor does

Plaintiff provide specific allegations that the purported
violations were the result of official policy.

Plaintiff’s

Complaint only contains a conclusory statement that “there was
participation of upper management . . . that evidences the
customs, patterns, practices, and procedures of Defendants to
retaliate and violate the civil rights of Plaintiff.”

(Compl. ¶

40.)
Further, to the extent Plaintiff brings a section 1983
claim against Chief Tappeiner in his official capacity, the
13 

Township of Hamilton may be liable for any misconduct alleged
because the municipality is named as a Defendant.

Naming Chief

Tappeiner as a defendant in his official capacity “is merely
redundant and, given that no particularized allegations
implicate [him], improper.”

Rodriguez v. City of Camden, 09-CV-

1909 NLH KMW, 2011 WL 345918, at *5 (D.N.J. Feb. 2, 2011)
(citing Dull v. W. Manchester Twp. Police Dep't, CIV.A. 1:07-CV0307, 2008 WL 717836, at *7 (M.D. Pa. Mar. 17, 2008) (“Claims
asserted against both a government entity and the entity's
agents in their official capacity warrant dismissal of the
redundant official-capacity suits.”); Congregation Kol Ami v.
Abington Twp., CIV.A. 01-1919, 2004 WL 1837037, at *19 (E.D. Pa.
Aug. 17, 2004) (“Because the Township is already a named party,
the suit against [defendant] in his official capacity is wholly
redundant and the Court will dismiss him as a Defendant.”);
Satterfield v. Borough of Schuylkill Haven, 12 F. Supp. 2d 423,
432 (E.D. Pa. 1998) (“By bringing official capacity suits
against the these three Defendants and against the Borough
itself, the Plaintiff has essentially named the Borough as a
defendant four times.

Therefore, although we recognize that we

are not required to do so . . . we will exercise our discretion
and grant the Defendants[‘] Motion to [D]ismiss the official
capacity claims.”).

As such, the Court will grant Defendants’

14 

motion for judgment on the pleadings as to claims asserted
against Chief Tappeiner in his official capacity.
2.

Personal Capacity Under Section 1983

Plaintiff’s complaint does not allege any direct
involvement by Chief Tappeiner in the events giving rise to the
instant action.

Therefore, Plaintiff’s claims against Chief

Tappeiner must rest on a theory of supervisory liability.
As a general rule, government officials may not be held
liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior.

Ashcroft v. Iqbal, 556

U.S. at 676; Monell v. New York City Dept. of Social Servs., 436
U.S. 658, 691 (1978) (finding no vicarious liability for a
municipal “person” under 42 U.S.C. § 1983).

In Iqbal, the

Supreme Court held that “[b]ecause vicarious or supervisor
liability is inapplicable to Bivens and [section] 1983 suits, a
plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution.”

Iqbal, 556 U.S. at 676.

Thus, each government

official is liable only for his or her own conduct.

The Supreme

Court rejected the contention that supervisor liability can be
imposed where the official had only “knowledge” or “acquiesced”
in their subordinates’ conduct.

Id. at 693.

Under pre-Iqbal Third Circuit precedent, “[t]here are two
theories of supervisory liability,” one under which supervisors
15 

can be liable if they “established and maintained a policy,
practice or custom which directly caused [the] constitutional
harm,” and another under which they can be liable if they
“participated in violating plaintiff's rights, directed others
to violate them, or, as the person[s] in charge, had knowledge
of and acquiesced in [their] subordinates' violations.”
Santiago v. Warminster Twp., 629 F.3d 121, 127 n.5 (3d Cir.
2010) (citation and internal quotations omitted).

“Particularly

after Iqbal, the connection between the supervisor's directions
and the constitutional deprivation must be sufficient to
demonstrate a plausible nexus or affirmative link between the
directions and the specific deprivation of constitutional rights
at issue.”

Id. at 130 (citation and internal quotations

omitted.)
The Third Circuit has recognized the potential effect Iqbal
might have in altering the standard for supervisory liability in
a section 1983 suit but, to date, has declined to decide whether
Iqbal requires narrowing the scope of the test.

Santiago, 629

F.3d at 130 n.8; Bayer v. Monroe County Children and Youth
Servs., 577 F.3d 186, 190 n.5 (3d Cir. 2009) (stating in light
of Iqbal, it is uncertain whether proof of personal knowledge,
with nothing more, provides sufficient basis to impose liability
upon supervisory official).

Therefore, it appears that, under a

supervisory theory of liability, personal involvement by a
16 

defendant remains the touchstone for establishing liability for
the violation of a plaintiff's constitutional right.

Williams

v. Lackawanna Cnty. Prison, CV-07-1137, 2010 WL 1491132, at *5
(M.D. Pa. Apr. 13, 2010).
Facts showing personal involvement of the defendant must be
asserted; such assertions may be made through allegations of
specific facts showing that a defendant expressly directed the
deprivation of a plaintiff's constitutional rights or created
such policies where the subordinates had no discretion in
applying the policies in a fashion other than the one which
actually produced the alleged deprivation; e.g., supervisory
liability may attach if the plaintiff asserts facts showing that
the supervisor's actions were “the moving force” behind the harm
suffered by the plaintiff.

Sample v. Diecks, 885 F.2d 1099,

1117–18 (3d Cir. 1989); see also Iqbal, 556 U.S. at 676–686.
Here, Plaintiff alleges no facts regarding Chief
Tappeiner’s personal involvement in the deprivation of
Plaintiff’s constitutional rights.

Plaintiff’s Complaint

contains only one paragraph that may implicate Police Chief
Tappeiner at all.

This paragraph consists of the bare

allegation that “[t]here was participation by upper management
of the Township of Hamilton Police Department, under color of
State law, in connection with the deprivation of the rights of
Plaintiff, that evidences the customs, patterns, practices, and
17 

procedures of Defendants to retaliate and violate the civil
rights of Plaintiff.”

(Compl. ¶ 40.)

Plaintiff has alleged no

facts indicating that Chief Tappeiner directed the deprivation
of a plaintiff's constitutional rights or created policies to
that effect.

Instead, Plaintiff relies on a single paragraph of

legal conclusions that only obliquely alludes to “upper
management” without even mentioning Chief Tappeiner.
Accordingly, this Court will dismiss the claims against Chief
Tappeiner under section 1983.
C.

New Jersey Civil Rights Act Claims

The Court will grant Defendants motion for judgment on the
pleadings as to claims against Chief Tappeiner under the New
Jersey Civil Rights Act (NJCRA) for the same reasons discussed
above under section 1983.
The NJCRA creates a private right of action for
deprivations 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 [New
Jersey].”

N.J.S.A. § 10:6–2.

The NJCRA is substantially

similar to the federal civil rights statutes, and “courts have
interpreted the statute ‘in terms nearly identical to its
federal counterpart; Section 1983.’”

Baklayan v. Ortiz, CIV.A.

11-03943 CCC, 2012 WL 1150842, at *6 (D.N.J. Apr. 5, 2012)
18 

(quoting Chapman v. New Jersey, No. 08–4130, 2009 WL 2634888, at
*3 (D.N.J. Aug. 25, 2009)).
As under section 1983, liability under the NJCRA is
premised on “personal involvement in the alleged misconduct, and
neither allow claims premised solely on respondeat superior.”
Id. (citing Didiano v. Balicki, No. 10–4483, 2011 WL 1466131, at
*9 (D.N.J. Apr. 18, 2011).

“In order to state . . . a claim

against a supervisor for the actions of his or her subordinates
under either § 1983 or the NJCRA, a plaintiff must allege that
the supervisor was involved personally, meaning through personal
direction or actual knowledge and acquiescence, in the wrongs
alleged.”

Gilmore v. Reilly, CIV 09-5956 (DRD), 2010 WL

1462876, at *6 (D.N.J. Apr. 9, 2010).

Therefore, Plaintiff’s

failure to plead sufficient facts regarding Chief Tappeiner
under section 1983 supports judgment on the pleadings as to
Plaintiff's NJCRA claims against Chief Tappeiner as well.
D.

Section 1985 and 1986 Claims

The Court will grant Defendants' motion for judgment on the
pleadings as to Plaintiffs’ section 1985 and 1986 claims.

While

Plaintiff’s Complaint fails to specify the sub-section of
section 1985 upon which Plaintiff’s claim against Chief
Tappeiner is based, it is clear that Plaintiff’s claims will
fail under all three sub-sections.

Further, because a valid

section 1986 claim must be premised on a valid section 1985
19 

claim, the Court will also grant Defendants’ motion for judgment
on the pleadings as to Plaintiff’s section 1986 claim against
Chief Tappeiner.
42 U.S.C. § 1985 addresses claims for three types of
conspiracies.

Altieri v. Pennsylvania State Police, 98-CV-5495,

2000 WL 427272 (E.D. Pa. Apr. 20, 2000).

Section 1985(1)

prohibits “two or more persons” from conspiring to interfere
with a federal officer's performance of his duties.

Shulman v.

Zsak, 485 F. App'x 528, 531 (3d Cir. 2012) cert. denied, 133 S.
Ct. 1283 (2013) (citing Desi’s Pizza, Inc. v. City of Wilkes–
Barre, 321 F.3d 411, 423 n.1 (3d Cir. 2003)).

Section 1985(2)

addresses conspiracies to obstruct justice and to intimidate
litigants and witnesses.

Id.

Section 1985(3) creates a cause

of action against any two persons who “conspire . . . for the
purpose of depriving, either directly or indirectly, any person
or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws . . . .”
U.S.C.A. § 1985(3).

42

A complaint under section 1985(3) “must

allege that the defendants did (1) conspire . . . (2) for the
purpose of depriving, either directly or indirectly, any person
or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws.

It must then

assert that one or more of the conspirators (3) did, or caused
to be done, any act in furtherance of the object of the
20 

conspiracy, whereby another was (4a) injured in his person or
property or (4b) deprived of having and exercising any right or
privilege of a citizen of the United States.”

Griffin v.

Breckenridge, 403 U.S. 88, 102–03 (1971).
Here, Plaintiff has failed to allege with any specificity
that the purported constitutional violations resulted from an
official policy or custom.3

While the complaint alludes to the

“the participation by upper management of the Township of
Hamilton Police Department . . . that evidences the customs,
patterns, practices, and procedures of Defendants to retaliate
and violate the civil rights of Plaintiff,” this vague statement
is insufficient to establish liability as to Chief Tappeiner in
his official capacity.

(Compl. ¶ 40.)

Finally, claims against

Chief Tappeiner in his personal capacity fail as well because
Plaintiff does not allege any facts suggesting Chief Tappeiner’s
direct involvement in or even knowledge of the purported
misconduct of the other Defendants.

As such, the allegations in

the Complaint fall short of establishing an intentional
conspiracy under any sub-section of 1985.
As noted above, Chief Tappeiner is also entitled to
judgment on the pleadings as to Plaintiff’s section 1986 claim.
Under the express terms of the statute, a claim under section

3

Plaintiff has again offered no explanation of his pleadings
against Chief Tappeiner and has not opposed this motion.
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1986 is entirely dependent on the viability of an underlying
section 1985 claim.

42 U.S.C. § 1986 (“Every person who, having

knowledge that any of the wrongs conspired to be done, and
mentioned in section 1985 of this title, are about to be
committed, and having power to prevent or aid in preventing the
commission of the same, neglects or refuses so to do, if such
wrongful act be committed, shall be liable . . . .”) (emphasis
added).

Because Plaintiff fails to state a viable section 1985

claim, the Court will grant Defendants’ motion for judgment on
the pleadings as to Plaintiff’s section 1986 claims against
Chief Tappeiner as well.
IV.

Conclusion
The Court will grant judgment on the pleadings in favor of

Defendant Chief Tappeiner on all claims.

Since the dismissal is

warranted and the motion was unopposed, the Court concludes that
amendment would be futile; Plaintiff had an opportunity to
clarify his legal and factual positions in this motion and
remained silent.

This motion, and the Court’s action on it, are

not meant as a mere dress rehearsal for some future effort to
pursue these claims against Chief Tappeiner.

An accompanying

Order will be entered.
November 18, 2013

s/ Jerome B. Simandle

Date

JEROME B. SIMANDLE
Chief U.S. District Judge
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