KILLION et al v. COFFEY et al

Filing 77

OPINION. Signed by Judge Renee Marie Bumb on 11/19/2015. (TH, )

NOT FOR PUBLICATION

[Docket Nos. 68, 69 & 70]

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

MICHAEL KILLION, et al.,
Plaintiffs,
Civil No. 13-1808 (RMB/KMW)
v.
OPINION
CHIEF JOHN COFFEY, et al.,
Defendants.

Appearances:
Katherine D. Hartman
Attorneys Hartman, Chartered
505 S. Lenola Road, Suite 121
Moorestown, NJ 08057-1590
Attorney for Plaintiffs
Francis X. Manning
Stradley, Ronon, Stevens & Young, LLP
LibertyView
457 Haddonfield Road, Suite 100
Cherry Hill, NJ 08002
Attorney for Defendants John Coffey and Michael Probasco
Richard L. Goldstein
Marshall, Dennehey, Warner, Coleman & Goggin, PA
Woodland Falls Corporate Park
200 Lake Drive East, Suite 300
Cherry Hill, NJ 08002
Attorney for Defendants Rick Taylor, Betsy McBride, John
Kneib, John Figueroa, Ed Growchowski, and the Township of
Pennsauken

1

William P. Flahive
24 Arnett Avenue, Suite 103
Lambertville, NJ 08530
Attorney for Defendant Jack Killion

BUMB, United States District Judge:
This matter comes before the Court upon three motions to
dismiss the Amended Complaint: the Motion to Dismiss filed by
Defendants John Figueroa, Ed Growchowski, John Kneib, Betsy
McBride, Rick Taylor, and the Township of Pennsauken [Docket No.
68], the Motion to Dismiss filed by Defendants John Coffey and
Michael Probasco [Docket No. 69], and the Motion to Dismiss
filed by Defendant Jack Killion [Docket No. 70].

As the

Defendants explicitly rely on each other’s arguments, the
motions will be addressed jointly.

For the reasons set forth

below, the motions to dismiss will be granted.

The Plaintiffs,

however, will be granted leave to amend their complaint one
final time to cure the deficiencies identified herein.
I.

Factual and Procedural Background1

Plaintiffs Michael Killion, Michael Biazzo, Douglas Foster,
Socrates Kouvatas, Erik Morton, William Hertline, and Mark

1

The facts recited herein are derived from the Plaintiffs’
Amended Complaint, which the Court must accept as true for the
purpose of these motions to dismiss. See McTernan v. City of
York, 577 F.3d 521, 526 (3d Cir. 2009 (“In deciding a motion to
dismiss, all well-pleaded allegations of the complaint must be
taken as true and interpreted in the light most favorable to the
plaintiffs, and all inferences must be drawn in favor of them.”)
(internal quotation marks and citations omitted). Additionally,
2

Bristow are seven police officers employed by the Pennsauken
Police Department.

The Plaintiffs are active members of the

union representing Pennsauken police officers, the Fraternal
Order of Police (“FOP 3”), and vocal and outspoken supporters of
the implementation of twelve hour shifts at the Pennsauken
Police Department.

Shortly after joining the Pennsauken Police

Department in 2001, for example, Plaintiff Kouvatas began
researching the efficiency of twelve hour shifts and authored a
position paper supporting their implementation.
his research with co-workers.

He also shared

Aside from this example, however,

it is largely unknown to this Court specifically how the
Plaintiffs demonstrated their support for the twelve hour
shifts.
Throughout 2010 and early 2011, negotiations took place
between the FOP 3 and the police administration regarding the
implementation of twelve hour shifts.

In February 2011, after a

vote, the Pennsauken Police Department instituted twelve hour
shifts for its officers.
Prior to their support of the twelve hour shifts,
allegedly, none of the Plaintiffs received discipline of any
kind.

After their opinions were made known, however, each

as the Court writes only for the parties, it assumes the
reader’s familiarity with the facts and recites only those
relevant to the decision herein.
3

Plaintiff alleges he was subjected to discipline and other
allegedly retaliatory actions by members of the police
administration, including Defendants Chief Coffey and Lieutenant
Probasco.

These actions range from Chief Coffey giving the

Plaintiffs the “silent treatment” to suspension following an
internal affairs investigation and a formal disciplinary
proceeding.

According to the Plaintiffs, other officers who

were not vocal proponents of the twelve hour shifts are treated
more civilly by Chief Coffey and are more leniently disciplined.
On May 7, 2011, Plaintiffs Killion and Biazzo were involved
in a physical altercation at Pinsetters Bowling Alley and Bar
while off-duty (the “Pinsetters Incident”).

The other

Plaintiffs, except Plaintiff Morton, were also involved in the
incident in varying capacities.

After the altercation,

Plaintiffs Killion and Biazzo left the bar.
ten officers responded to the scene.

Shortly thereafter,

The next day, Chief Coffey

instituted an internal investigation into the Pinsetters
Incident.

Subsequently, Plaintiffs Killion, Biazzo, Foster,

Hertline, Kouvatas, and Bristow were charged with disciplinary
infractions.

Disciplinary hearings were held and the hearing

officer recommended that Plaintiffs Killion, Biazzo, Foster, and
Hertline each receive thirty day suspensions and that Plaintiffs
Kouvatas and Bristow each receive five day suspensions.

The

Township Public Safety Director accepted the recommendations.

4

Plaintiffs Killion, Biazzo, Foster, and Hertline, who had each
received “major” discipline, appealed to the New Jersey Civil
Service Commission, which assigned the appeals to the Office of
Administrative Law.

After an additional hearing, Administrative

Law Judge Masin affirmed the four suspensions.

Judge Masin also

discredited the officers’ attempt to argue that Chief Coffey
instituted the disciplinary actions against them in retaliation
for their support for the twelve hour shifts.

The four

Plaintiffs appealed this decision to the Superior Court of New
Jersey, Appellate Division.

The appeal is currently pending.

On January 25, 2012, the Plaintiffs sent a letter to the
Pennsauken Township Committee informing the Committee of what
they believed was Chief Coffey’s policy of discriminating
against supporters of the twelve hour shifts.

The Committee

took no action to investigate the allegations or to stop the
alleged discrimination.
On March 22, 2013, the Plaintiffs filed this lawsuit
against Chief Coffey, Lieutenant Probasco, the Township of
Pennsauken, each of the Township Committee’s members, and the
Township Administrator, Ed Growchowski, alleging that the
Defendants have unlawfully retaliated against them for
exercising their First Amendment rights.2

2

The Amended Complaint

Defendants state that “[i]t is unclear whether Plaintiffs are
suing the Police Department as a separate legal entity.”
5

alleges violations of the Plaintiffs’ First Amendment rights
under the United States Constitution and the New Jersey
Constitution, in violation of Section 1983 (Count I) and the New
Jersey Civil Rights Act (Count II).

The Amended Complaint also

seeks punitive damages against all the Defendants (Count III).
The Defendants have moved to dismiss the Amended Complaint on
various grounds, including failure to state a claim, collateral
estoppel, statute of limitations grounds, and Younger
abstention.
II.

Motion to Dismiss Standard

To withstand a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550

Township Motion, at 2 n. 1 [Docket No. 68]. As the Court reads
the Amended Complaint, the Plaintiffs do not attempt to sue the
Pennsauken Police Department separately. The Police Department
is not listed in the case caption and, although it is described
under the heading “Parties” in the Amended Complaint, the Police
Department is not listed as a Defendant. See Am. Compl. ¶ 10
[Docket No. 27]. To the extent that the Plaintiffs do seek to
assert claims against the Police Department separately, however,
those claims are dismissed with prejudice. The Defendants are
correct that “a police department is not a separate legal entity
that can be sued.” Township Motion, at 2. “[A] police
department is not a ‘person’ subject to suit under 42 U.S.C. §
1983 pursuant to Monell v. Dept. of Social Services of City of
New York, 436 U.S. 658, 688-90 (1978).” Hannah v. Bridgewater
Police Dep’t, 2014 WL 4272759, at *2 (D.N.J. Aug. 28, 2014).
6

U.S. 544, 570 (2007)).

“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.”

Id. at 663.

“[A]n unadorned, the

defendant-unlawfully-harmed-me accusation” does not suffice to
survive a motion to dismiss.

Id. at 678.

“[A] plaintiff’s

obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”

Twombly, 550 U.S. at 555 (quoting Papasan v. Allain,

478 U.S. 265, 286 (1986)).
In reviewing a plaintiff’s allegations, a district court
should conduct a three-part analysis.
641 F.3d 560, 563 (3d Cir. 2011).

See Malleus v. George,

“First, the court must ‘take

note of the elements a plaintiff must plead to state a claim.’”
Id. (quoting Iqbal, 556 U.S. at 675).

Second, the court should

identify allegations that, “because they are no more than
conclusions, are not entitled to the assumption of truth.”
at 680.

Id.

Third, “whe[n] 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.

Rule 12(b)(6) requires the district court to “accept as
true all well-pled factual allegations as well as all reasonable

7

inferences that can be drawn from them, and construe those
allegations in the light most favorable to the plaintiff.”
Bistrian v. Levi, 696 F.3d 352, 358 n. 1 (3d Cir. 2012).

Only

the allegations in the complaint and “matters of public record,
orders, exhibits attached to the complaint and items appearing
in the record of the case” are taken into consideration.
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384
n. 2 (3d Cir. 1994) (citing Chester County Intermediate Unit v.
Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)).
Defendants further move for dismissal under Younger v.
Harris, 401 U.S. 37 (1971).

“Strictly speaking, Younger

abstention is not analyzed under either Rule 12(b)(1) or
12(b)(6).”

Knox v. Union Twp. Bd. of Educ., 2015 WL 769930, at

*5 n. 7 (D.N.J. Feb. 23, 2015); see also Carter v. Doyle, 95 F.
Supp. 2d 851, 855 n. 8 (N.D. Ill. 2000) (noting that courts have
allowed Younger abstention challenges to be raised in both Rule
12(b)(6) or Rule 12(b)(1) motions “[b]ecause a motion to dismiss
for lack of subject matter jurisdiction based on abstention does
not fit neatly into either of the two types of jurisdictional
attacks generally raised under Rule 12(b)(1)—the challenge is
neither to the facial insufficiency of the complaint or the
factual basis pleaded in the complaint[.]”).
That being said, the Third Circuit has explained that a
motion to dismiss under Younger is “in the nature of” a Rule

8

12(b)(6) motion to dismiss.

Gwynedd Properties, Inc. v. Lower

Gwynedd Twp., 970 F.2d 1195, 1206 (3d Cir. 1992) (citing
Heritage Farms, Inc. v. Solebury Twp., 671 F.2d 743, 745 (3d
Cir. 1982)).

Courts in this District have repeatedly reviewed a

Younger motion to dismiss as a Rule 12(b)(6) motion.

See, e.g.,

Knox, 2015 WL 769930, at *5 n. 7; Local 54 Patrolman’s
Benevolent Ass’n v. Fontoura, 2007 WL 4165158, at *2-3 (D.N.J.
Nov. 19, 2007); Ocean Grove Camp Meeting Ass'n Of The United
Methodist Church v. Papaleo, 2007 WL 3349787, at *1 (D.N.J. Nov.
7, 2007) aff'd in relevant part 339 F. App'x 232 (3d Cir. 2009).
This Court will do the same.
III. Analysis
A. Younger Abstention
Because the Defendants’ Younger challenge questions this
Court’s jurisdiction to hear the matter, the Court will address
it first.

The Defendants contend that any claims relating to

the Pinsetters Incident must be dismissed pursuant to the
doctrine developed in Younger because four of the Plaintiffs are
currently involved in a pending appeal before the New Jersey
Superior Court related to this incident and the other two
involved Plaintiffs failed to perfect an appeal of the
administrative findings against them.

The Defendants further

urge the Court to dismiss under Younger all claims related to
Plaintiff Killion’s alleged sick time misuse, Plaintiff Biazzo’s
9

involvement in an incident at Bryson’s Pub in 2012, Plaintiff
Morton’s failure to return to work, and Plaintiff Foster’s
domestic incident.

See Coffey Motion at 42 [Docket No. 69].

In Younger, the Court held that “federal courts should
abstain from enjoining state criminal prosecutions, because of
principles of comity and federalism, unless certain
extraordinary circumstances exist.”

Marran v. Marran, 376 F.3d

143, 154 (3d Cir. 2004) (citing Younger, 401 U.S. at 49-54).
The Younger abstention doctrine has been extended to “particular
state civil proceedings that are akin to criminal prosecutions,
or that implicate a State’s interest in enforcing the orders and
judgments of its courts.”

Sprint Commc’ns, Inc. v. Jacobs, 134

S. Ct. 584, 588 (2013) (citing New Orleans Public Service, Inc.
v. Council of City of New Orleans, 491 U.S. 350, 368 (1989)
(“NOPSI”) (other internal citations omitted)).

The Supreme

Court in Sprint sought to “clarify and affirm that Younger
extends to the three exceptional circumstances identified in
NOPSI, but no further.”

Id. at 593-94.

In Sprint, the Supreme Court also clarified its ruling in
Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457
U.S. 423 (1982) (“Middlesex”).

It explained that, when

Middlesex is divorced from its quasi-criminal context, courts
have wrongly used it to extend the Younger doctrine whenever
three conditions are met: “(1) there is an ongoing state

10

judicial proceeding, which (2) implicates important state
interests, and (3) . . . provide[s] an adequate opportunity to
raise [federal] challenges.”

Id. at 593.

Such a reading of

Middlesex incorrectly extends Younger “to virtually all parallel
state and federal proceedings, at least where a party could
identify a plausibly important state interest.”

Id.

Importantly, the Supreme Court held that, “even in the
presence of parallel state proceedings, abstention from the
exercise of federal jurisdiction is the exception, not the
rule.”

Id. (internal quotation marks omitted).

The Supreme

Court “ha[s] cautioned . . . that federal courts ordinarily
should entertain and resolve on the merits an action within the
scope of a jurisdictional grant, and should not ‘refus[e] to
decide a case in deference to the States.’”
NOPSI, 491 U.S. at 368).

Id. at 588 (quoting

“Abstention is not in order simply

because a pending state-court proceeding involves the same
subject matter.”

Id.

Younger abstention is appropriate in the context of “civil
enforcement proceedings” that are “akin to a criminal
prosecution in important respects.”

Sprint, 134 S. Ct. at 592

(internal citations and quotations omitted).

Such quasi-

criminal civil enforcement proceedings are generally “initiated
to sanction the federal plaintiff, i.e., the party challenging
the state action, for some wrongful act.”

11

Id.

Likewise, a

state party is customarily a party to the state proceedings and
often, if not always, initiates the state action.

Id.

These

types of civil enforcement proceedings often commence with
internal investigations that “culminat[e] in the filing of a
formal complaint or charges.”

Id.

At issue here are police disciplinary proceedings, first
heard at the administrative level, which either could have been
or have been appealed to the New Jersey Superior Court.

Such

disciplinary proceedings fall into the category of civil
enforcement proceedings from which federal courts may abstain
under Younger.

See Gonzalez v. Waterfront Comm’n of New York

Harbor, 755 F.3d 176, 182 (3d Cir. 2014) (“In sum, we conclude
that the state disciplinary proceeding involved in this appeal
bears the hallmarks of the quasi-criminal proceedings discussed
by the Supreme Court.

It was initiated by a state actor

following an internal investigation and the filing of formal
charges for the purpose of sanctioning Gonzalez for his wrongful
actions.

Given these circumstances, we hold that Gonzalez’s

disciplinary hearing and the pending State Appeal are indeed
‘akin to a criminal prosecution.’”).
However, this does not end the Younger analysis.

This

Court must next consider the factors set forth in Middlesex.
See Sprint, 134 S. Ct. at 593; Gonzalez, 755 F.3d at 182-83.
The Middlesex factors include: (1) whether there is an ongoing

12

state judicial proceeding, (2) whether that proceeding
implicates important state interests, and (3) whether the state
proceeding provides an opportunity for the federal plaintiff to
raise his federal claims.

Gonzalez, 755 F.3d at 182-83.

The first Middlesex factor is met.

There are ongoing

judicial proceedings regarding each of the Plaintiffs.

With

regard to the four Plaintiffs involved in the Pinsetters
Incident appeal, Killion, Biazzo, Foster, and Hertline, it is
indisputable that there is an ongoing state court proceeding
since the appeal is currently pending before the New Jersey
Superior Court.

The remaining Plaintiffs, however, are also

involved in “pending” state administrative proceedings for
purposes of a Younger abstention analysis.

See O’Neill v. City

of Philadelphia, 32 F.3d 785, 791 (3d Cir. 1994).

These

Plaintiffs have been involved in administrative disciplinary
proceedings that have been resolved without resort to the state
courts.

Even though these proceedings have technically

concluded, the Plaintiffs did not exhaust their state judicial
remedies.

“[S]tate proceedings remain ‘pending,’ within the

meaning of Younger abstention, in cases such as the one before
us, where a coercive administrative proceeding has been
initiated by the State in a state forum, where adequate statecourt judicial review of the administrative determination is
available to the federal claimants, and where the claimants have

13

chosen not to pursue their state-court judicial remedies, but
have instead sought to invalidate the State’s judgment by filing
a federal action.”

Id.

The second Middlesex factor is also present.

The Township

of Pennsauken, through its police department, instituted the
disciplinary proceedings at issue here in an effort to regulate
the conduct of its police force.

This Court finds that

“maintaining the integrity, public confidence, and goodwill of
[] law enforcement” is an important state interest.

See

Gonzalez, 755 F.3d at 183.
With regard to the third Middlesex factor, however, this
Court finds that the disciplinary proceedings did not afford the
Plaintiffs an adequate opportunity to raise their constitutional
claims.

While their present constitutional claims may be

“analogous to defenses that [the Plaintiffs] did assert or could
have asserted to the [disciplinary charges],” the record does
not suggest that the Plaintiffs had any opportunity to bring
claims in the state or administrative proceedings.

See Knox,

2015 WL 769930, at *6 (emphasis in original) (relying on Prevost
v. Twp. of Hazlet, 159 F. App’x 396 (3d Cir. 2005)).
Like the Knox court, this Court finds Prevost instructive.
Prevost involved a former police officer who was terminated from
the police department after a series of administrative
disciplinary hearings, which were appealed to the New Jersey

14

Superior Court.

While his appeal was pending, the former police

officer sued in federal court under Section 1983.
court dismissed the suit under Younger.

The district

On appeal, the Third

Circuit found abstention inappropriate and reversed, holding
that “[t]he state administrative proceeding, while based on the
same factual circumstances as this suit, did not afford [the
plaintiff] the opportunity to raise the claims he argues here.”
Prevost, 159 F. App’x at 398.

The Third Circuit explained:

First, the only party to the state administrative
proceeding was the Township, while the defendants in this
case include the Township and several of its employees.
Second, the state administrative proceeding was limited to
the question of whether the Township’s termination of
Prevost was in accordance with state statutes and
regulations. Here, Prevost argues that the defendant
employees of the Township manipulated state regulations to
deprive him of employment, in violation of his
constitutional rights, a claim that does not fall within
the scope of the administrative hearing. Third, the only
possible relief from the state administrative proceeding
was reinstatement and limited compensatory damages. This
case includes a § 1983 action seeking punitive and
compensatory damages that are not available in the state
administrative proceeding. Prevost’s suit also seeks
injunctive relief to restrain the Township and its
employees from publishing information about Prevost and the
state administrative proceeding could neither consider this
claim nor award injunctive relief.
Id.

These considerations apply with equal force to the case at

bar.

Of the Defendants in the present federal action, only the

Township of Pennsauken is a party to the currently pending
Pinsetters Incident appeal and the administrative disciplinary
proceedings, whereas the Township, each of its committee

15

members, Chief Killion, and Lieutenant Probasco are all parties
to the instant litigation.

Similarly, at issue in the

administrative proceedings was the propriety of the police
officers’ action, not whether the officers’ constitutional
rights were violated.

To the extent the officers were able to

raise the question of retaliation for protected activity in
violation of the First Amendment, they were only able to do so
as a defense, not as an affirmative claim.
769930, at *6.

See Knox, 2015 WL

Finally, the Plaintiffs here seek compensatory

and punitive damages, which are not available in the state
administrative proceedings.

For these reasons, the Court holds

that Younger abstention is inappropriate in this case.
B. Collateral Estoppel
The Defendants next argue that Plaintiffs Killion, Biazzo,
Foster, and Hertline are collaterally estopped from litigating
retaliation claims based on the discipline they received after
the Pinsetters Incident because “ALJ Masin made the crucial
factual finding that the discipline Plaintiffs Killion, Biazzo,
Foster, and Hertline incurred was not tainted by unlawful
retaliatory motives.”

Defs. Reply Br. at 13 [Docket No. 74].

Collateral estoppel, or issue preclusion, prevents a party
from re-litigating an issue that has already been actually
litigated.

Peloro v. U.S., 488 F.3d 163, 174 (3d Cir. 2007).

Under 28 U.S.C. § 1738, this Court must give full faith and
16

credit to state court judgments.

Migra v. Warren City Sch.

Dist. Bd. of Educ., 465 U.S. 75, 81 (1984).

Federal courts must

also give preclusive effect to state administrative decisions
that have been reviewed by a state court.

Edmundson v. Borough

of Kennett Square, 4 F.3d 186, 189 (3d Cir. 1993).

“However, in

section 1983 cases, only state administrative factfinding is
entitled to preclusive effect in the federal courts when the
agency ruling remains unreviewed by state courts.”
(emphasis added).

Id.

Since the ALJ’s decision regarding the

Pinsetters Incident is currently on appeal, it is considered
unreviewed by the state court and only the ALJ’s factual
findings may be given preclusive effect, assuming the collateral
estoppel factors are otherwise met.
This Court applies New Jersey law in determining whether
the Plaintiffs should be collaterally estopped from relitigating ALJ Masin’s factual findings associated with the
Pinsetters Incident.

Delaware River Port Auth. v. Fraternal

Order of Police, 290 F.3d 567, 573 (3d Cir. 2002).

Under New

Jersey law, collateral estoppel bars re-litigation of an issue
if: (1) the issue to be precluded is identical to the issue
previously decided; (2) the issue was actually litigated in a
prior proceeding; (3) the prior court issued a final judgment on
the merits; (4) the determination of the issue was essential to
the prior judgment; and (5) the party against whom collateral

17

estoppel is asserted was a party or in privity with a party to
the earlier proceeding.

Id.

See also Winters v. Hudson Reg’l

Fire & Rescue, 212 N.J. 67, 85 (2012).
The Defendants urge the Court to dismiss all claims related
to the Pinsetters Incident appeal under Winters.

There, the New

Jersey Supreme Court held that a federal plaintiff who argued
retaliation as “a central theme of his argument” in an
administrative proceeding challenging discipline imposed upon
him was collaterally estopped from bringing a separate federal
action alleging retaliation.

Winters, 212 N.J. at 88

(“Retaliation was a central theme of his argument and that he
chose not to present there his comprehensive proof of that claim
does not afford him a second bite at the apple in this
matter.”).

Because Plaintiffs Killion, Biazzo, Foster, and

Hertline raised the possibility of retaliation during the
proceedings before ALJ Masin, the Defendants contend, they are
precluded from bringing any First Amendment retaliation claims
in this action stemming from the Pinsetters Incident.

The Court

disagrees.
Unlike the plaintiff in Winters, the Plaintiffs here did
not make retaliation a central theme of their defense during the
administrative proceedings before ALJ Masin.

See May v. Borough

of Pine Hill, 2013 WL 663702, at *3 (D.N.J. Feb. 22, 2013).
Defendants direct the Court to ALJ Masin’s findings, which

18

The

indicate that the question of impermissible retaliation was
raised.

See, e.g., Coffey Motion at 37-39.

Further, the

Defendants argue that “ALJ Masin made the crucial factual
finding that the discipline Plaintiffs . . . incurred was not
tainted by unlawful retaliatory motives.”
13.

Defs. Reply Br. at

ALJ Masin’s finding, however, actually reads: “I FIND that

while the Department did not comply with several elements of the
Guidelines, these failures did not taint the process or deprive
the officers of a fair investigation or a fair hearing.”

ALJ

Decision, at 68 [Docket No. 69-6] (emphasis in original).

He

did not, however, make any explicit findings regarding the
Plaintiffs’ retaliation arguments.
ALJ Masin observed that the Plaintiffs “suggested” that
Chief Coffey was improperly retaliating against them, but that
there was “no substantive evidence to support that Chief Coffey
allowed any disagreement with them on that ground to adversely
affect” the investigation and decision to impose discipline.
Id.

A mere suggestion of retaliation, however, is insufficient

to persuade this Court that the issue of First Amendment
retaliation in this federal action was actually litigated in the
administrative proceeding and that the determination of that
issue was essential to ALJ Masin’s decision.

See May, 2013 WL

663702, at *3 (“While May included elements of retaliation in
her arguments during the administrative hearing, the Court is

19

reluctant to find that her claim is precluded where retaliation
was not the central element of her defense.”).

Likewise, given

that ALJ Masin’s ultimate finding related to the question of
whether the Police Department failed to follow the Attorney
General Guidelines and other internal policies, not the question
of retaliation, this Court finds that any determinations
regarding retaliation were not essential to the ALJ’s decision.
Furthermore, even if ALJ Masin did make an explicit finding
that there was no impermissible retaliation tainting the
discipline imposed upon the Plaintiffs after the Pinsetters
Incident, this is arguably a legal conclusion that remains
unreviewed by the state court and is not entitled to preclusive
effect.

See Edmundson, 4 F.3d at 189.

With due respect to ALJ

Masin and the Civil Service Commission, which adopted his
decision, this Court agrees with the Third Circuit “that
constitutional adjudication is not within [their] competence so
as to bar a federal court from re-examining that legal issue.
The Commission simply does not have the background or experience
to finally decide issues that give pause even to federal courts
despite their familiarity with that area of the law.”

Id. at

193 (internal citations omitted); see also Burns v. City of
Bayonne, 2014 WL 4662189, at *14 (D.N.J. Sept. 18, 2014).

20

C. Statute of Limitations
Section 1983 claims in New Jersey are subject to a two-year
statute of limitations.

O’Connor v. City of Newark, 440 F.3d

125, 126-27 (3d Cir. 2006).

The Defendants contend that all

allegedly retaliatory acts that took place prior to March 22,
2011 are time-barred and may not be considered by the Court.
The Court agrees.3
“First Amendment retaliation claims are always individually
actionable, even when relatively minor. . . . A First Amendment
retaliation claim will lie for any individual act which” is
sufficient to deter a person of ordinary firmness from
exercising their First Amendment rights.

Id. at 128-29.

Furthermore, separate acts of alleged retaliation “cannot be
resurrected by being aggregated and labeled continuing
violations.”

Id. at 129; see also Falat v. Cnty. of Hunterdon,

2014 WL 6611493, at *6-8 (D.N.J. Nov. 21, 2014).

Since the

alleged retaliatory acts that occurred before March 22, 2011
were all individually actionable, they are now untimely and will
not be considered by the Court under a continuing violation
theory.

3

The Court notes that the Plaintiffs entirely ignored the
Defendants’ statute of limitations argument in their Opposition
Brief, and instead conceded that “First Amendment retaliation
claims are always individually actionable, even when relatively
minor.” See Pls. Opp. Br. at 20 [Docket No. 73].

21

Any First Amendment retaliation claims premised upon acts
taking place prior to March 22, 2011 will be dismissed with
prejudice.4

To the extent that the Plaintiffs have not

identified in the Amended Complaint when a given act of alleged
retaliation took place, claims premised upon these acts will be
dismissed without prejudice since the Court is unable to
determine whether or not the claims are time-barred.

See, e.g.,

Am. Compl. ¶¶ 106 (“Lieutenant Probasco repeatedly told
individuals that Foster was at thief and a criminal.”), 148 (“On
one occasion the Chief made Morton prepare a memo as to why he
gassed his patrol unit at a specific time.”), 164 (“Hertline was
denied his requested beat.”), 173 (“Bristow participated in a
Captain’s interview . . . The Captain responded in a demeaning
manner . . .”).
D. Failure to State a Claim
To state a claim under Section 1983 for violation of First
Amendment rights, the Plaintiffs must allege facts showing: (1)
constitutionally protected conduct, (2) retaliatory action
sufficient to deter a person of ordinary firmness from
exercising his constitutional rights, and (3) a causal link
between the constitutionally protected conduct and the

4

Although these allegations cannot support actionable claims,
given the statute of limitations, the allegations may be
included for evidentiary support or background information.
22

retaliatory action.

Thomas v. Independence Twp., 463 F.3d 285,

296 (3d Cir. 2006).
i. Constitutionally Protected Conduct
Police officers, as public employees, “do not surrender all
their First Amendment rights by reason of their employment.
Rather, the First Amendment protects a public employee’s right,
in certain circumstances, to speak as a citizen addressing
matters of public concern.”
417 (2006).

Garcetti v. Ceballos, 547 U.S. 410,

To establish that they have engaged in

constitutionally protected conduct, the Plaintiffs must allege
(1) that they acted or spoke as citizens, regarding (2) a matter
of public concern, and (3) that the police administration did
not have an adequate justification for treating them differently
from any other member of the general public as a result of their
conduct.

Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d

Cir. 2006) (citing Garcetti, 547 U.S. at 418).
In evaluating whether a matter is of public concern, courts
consider whether “it is important to the process of selfgovernance that communications on this topic, in this form and
in this context, take place.”

Zelinski v. Penn. State Police,

108 F. App’x 700, 707 (3d Cir. 2004).

A public employee’s

speech is not protected, however, even if it touches on a matter
of public concern, if the employee spoke not as a private
citizen, but pursuant to their official duties.

23

Gorum v.

Sessoms, 561 F.3d 179, 185 (3d Cir. 2009).

“Factors considered

[in this analysis] include whether the speech fell within the
individual’s job duties, whether it was related to special
knowledge or experience acquired on the job, whether it was made
inside or outside the work place, and whether it concerned the
job’s subject matter.”

Houston v. Twp. of Randolph, 2013 WL

1192579, at *11 (D.N.J. Mar. 21, 2013).
Before this Court can even consider whether the Plaintiffs’
conduct or speech was protected under the aforementioned
standard, however, the Court must first identify the conduct or
speech in which the Plaintiffs engaged.

“Plaintiffs in First

Amendment retaliation cases can sustain their burden of proof
only if their conduct was constitutionally protected, and,
therefore, only if there actually was conduct.”

Ambrose v. Twp.

of Robinson, Pa., 303 F.3d 488, 495 (3d Cir. 2002) (emphasis in
original); Fogarty v. Boles, 121 F.3d 886, 891 (3d Cir. 2002)
(“the absence of speech . . . is fatal to the plaintiff’s [First
Amendment retaliation] claim”).
Here, the Plaintiffs have neglected to identify what the
Plaintiffs actually did or said to display their support of the
twelve hour shifts.

The Amended Complaint, in conclusory

fashion, simply states that “all plaintiffs were active and
vocal supporters of the implementation of twelve hour shifts in
the Township of Pennsauken.”

Am. Compl. ¶ 26.

24

The Amended

Complaint repeatedly references the Plaintiffs’ “support” for
the twelve hour shifts.

See, e.g., id. at ¶¶ 50, 82, 102, 120.

Yet there are nearly no allegations establishing what acts or
speech the Plaintiffs engaged in to demonstrate this support.
For example, Plaintiffs allege that Plaintiff Morton “work[ed]
actively to obtain twelve hour shifts.”

Id. at ¶ 143.

Notably

absent are any allegations as to what Morton’s active work
entailed.

Similarly, the Plaintiffs baldly allege that

Plaintiff “Hertline has been an active and vocal proponent for
the implementation of the twelve hour shifts,” with nothing
more.

Id. at ¶ 154.

Without identifying the Plaintiffs’ speech

or conduct that allegedly resulted in retaliation, the First
Amendment retaliation claims must fail.

See Berkery v.

Wissahickon Sch. Dist. Bd. of Directors, 2015 WL 5829901, at *2
(3d Cir. Oct 7, 2015) (non-precedential) (affirming dismissal of
First Amendment retaliation claim where plaintiff “does not
specify what speech of hers caused her suspension”).
Additionally, the Plaintiffs’ “perceived support” for the twelve
hour shifts, without allegations of actual conduct or speech
demonstrating that support, cannot sustain a First Amendment
retaliation claim.

See Ambrose, 303 F.3d at 496 (“perceived

support” alone “cannot form the basis of a First Amendment
retaliation claim.”).

25

To the extent that any of these conclusory statements can
be considered well-pled allegations of actual conduct, the
Plaintiffs have altogether failed to allege that they were
speaking as private citizens, as required for a public employee
to establish a constitutional violation.
at 417-18.

See Garcetti, 547 U.S.

Moreover, this Court questions, without making any

determinations at this juncture, whether support for the
implementation of twelve hour shifts is truly a matter of public
concern.

See Thomas v. Delaware State Univ., 2015 WL 5520108,

at *4 (3d Cir. Sept. 21, 2015) (non-precedential) (“While it is
true that union activities may sometimes touch on a matter of
public concern, . . . it is not the case that all union-related
grievances do[.]

[Plaintiff’s] grievances related to ‘working

conditions and other issues in union members’ employment’ and
[Plaintiff] offers nothing that would transform those personnel
matters into issues of interest to the broader community.”)
(internal citations and quotations omitted).
The few instances of well-pled allegations of conduct by
any of the Plaintiffs are insufficient to save the Amended
Complaint.

The Plaintiffs allege that Plaintiff Kouvatas became

a Pennsauken police officer in 2001 and that he “began to
research the efficiency of twelve hour shifts” and authored a
position paper in support shortly thereafter.

Id. at ¶¶ 127-29.

Given the many years that passed between the publication of

26

Plaintiff Kouvatas’s position paper and the first actionable
acts of alleged retaliation, this cannot support a First
Amendment retaliation claim.

Likewise, Plaintiff Bristow’s

participation in a “Captain’s interview wherein he spoke highly
of the need for twelve hour shifts,” id. at ¶ 173, clearly
involved speech made as part of his official duties, not as a
private citizen, since private citizens do not participate in
interviews with police captains regarding police administrative
policies.

See Garcetti, 547 U.S. at 424 (“When a public

employee speaks pursuant to employment responsibilities,
however, there is no relevant analogue to speech by citizens who
are not government employees.”).

Further, the Plaintiffs do not

allege that Plaintiff Bristow spoke as a private citizen during
the Captain’s interview.

Without more than what is presently

pled, the Court holds that Plaintiff Bristow’s speech in a
“Captain’s interview” is not protected speech as required to
establish a First Amendment retaliation claim.
The Plaintiffs have failed to adequately plead
constitutionally protected conduct.

Accordingly, the

Plaintiffs’ First Amendment retaliation claims under Section
1983 are dismissed without prejudice.

“This district has

repeatedly interpreted [the New Jersey Civil Rights Act]
analogously to § 1983.”

Pettit v. New Jersey, 2011 WL 1325614,

at *3 (D.N.J. Mar. 30, 2011) (collecting cases); see also Borden

27

v. Sch. Dist. Of Twp. Of E. Brunswick, 523 F.3d 153, 164 n. 5
(3d Cir. 2008).

Therefore, for the same reasons, the

Plaintiffs’ New Jersey Civil Rights Act claims are also
dismissed without prejudice.5
ii. Retaliatory Conduct
Although the Court will dismiss the Plaintiffs’ claims
based on failure to sufficiently allege constitutionally
protected conduct, the Court will grant the Plaintiffs leave to
amend their pleadings and so will address the other required
elements to provide guidance to the parties.
To withstand a motion to dismiss, a First Amendment
retaliation complaint must allege “retaliatory action sufficient
to deter a person of ordinary firmness from exercising his
constitutional rights.”

Thomas, 463 F.3d at 296.

The effect of

the alleged retaliation on a plaintiff’s freedom of speech “need
not be great in order to be actionable but it must be more than

5

The Court notes that the Defendants also argue that qualified
immunity applies and relieves the individual Defendants of
liability. Because this Court will dismiss the Plaintiffs’
constitutional claims, however, it need not reach the issue of
qualified immunity at this juncture. Similarly, since the
constitutional claims will be dismissed, the Court will also
dismiss the Plaintiffs’ punitive damages claim against each
Defendant, except the Township of Pennsauken, without prejudice.
As it is well-established that no punitive damages may be
awarded against a municipality in Section 1983 actions, the
punitive damages claim against the Township of Pennsauken is
dismissed with prejudice. See City of Newport v. Fact Concerts,
Inc., 453 U.S. 247, 271 (1981).
28

de minimis.”

Hogan v. Twp. of Haddon, 278 F. App’x 98, 103 (3d

Cir. 2008) (internal citations and quotations omitted).

“[E]ven

an act of retaliation as trivial as failing to hold a birthday
party for a public employee . . . when intended to punish her
for exercising her free speech rights” may be sufficient to
constitute retaliatory action for purposes of a First Amendment
retaliation claim.

See Suppan v. Dadonna, 203 F.3d 228, 234 (3d

Cir. 2000) (quoting Rutan v. Republican Party, 497 U.S. 62, 76
n. 8 (1990)).

“A First Amendment retaliation claim will lie for

any individual act which meets this ‘deterrence threshold,’ and
that threshold is very low[.]”

O’Connor, 440 F.3d at 128.

The Amended Complaint consists almost exclusively of
allegations of retaliatory conduct on the part of the
Defendants.

While many of these allegedly retaliatory acts

cannot support First Amendment retaliation claims since they are
time-barred, many are timely.

The Plaintiffs allege, for

example, that Plaintiff Killion was transferred to the
nightshift in May 2012, although no other officer on light-duty
has ever been transferred to the nightshift in the history of
the Pennsauken Police Department, Am. Compl. ¶ 72, and that, in
June 2011, Plaintiff Foster was forced to use holidays to attend
a training session, while two other officers who also attended

29

the session were given training days.6

Id. at ¶ 109.

This Court

accepts the timely allegations of retaliation as true, as it
must on a Rule 12(b)(6) motion to dismiss.

While the Amended

Complaint is fatally lacking in other respects, it adequately
pleads retaliatory conduct as required to state a First
Amendment retaliation claim.
iii. Causal Link
Even if the Plaintiffs’ bald and conclusory allegations
regarding constitutionally protected speech were sufficient,
which this Court holds they are not, the Amended Complaint must
be dismissed for failure to adequately plead a causal link
between the Plaintiffs’ allegedly protected speech and the
Defendants’ allegedly retaliatory actions.

To state a claim for

First Amendment retaliation, the Plaintiffs must allege
causation, namely that their protected activity was the
motivating factor behind the Defendants’ retaliation.
v. Henry, 435 F.3d 268, 275 (3d Cir. 2006).

Springer

Courts “must be

diligent in enforcing these causation requirements [in Section
1983 First Amendment retaliation cases] because otherwise a
public actor cognizant of the possibility that litigation might

6

The Plaintiffs also allege that Chief Coffey has ceased
speaking to them and, in fact, actively ignores their attempts
to be cordial. See, e.g., id. at ¶¶ 73-74, 98, 174. Although
the “deterrence threshold” is low, the Court queries whether
Chief Coffey’s alleged impoliteness rises to the level of
actionable retaliation.
30

be filed against him, particularly in his individual capacity,
could be chilled from taking action that he deemed appropriate
and, in fact, was appropriate.”

Lauren W. ex rel. Jean W. v.

DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).

Furthermore, a

plaintiff must allege more than just a “mere possibility of
misconduct.”

See Iqbal, 556 U.S. at 679.

Determining whether a causal link has been adequately pled
requires an inquiry into the temporal proximity between the
alleged protected activity and the alleged retaliation.

See

Queer v. Westmoreland Cnty., 296 F. App'x 290, 293 (3d Cir.
2008).

“[A] suggestive temporal proximity between the protected

activity and the alleged retaliatory action can be probative of
causation.”

Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d

Cir. 2003).

However, the temporal proximity of the alleged

retaliation “must be unusually suggestive of retaliatory motive
before a causal link will be inferred.”

Id.

Where the temporal

proximity alone is not “unusually suggestive,” “timing plus
other evidence may be an appropriate test[.]”

Id.

The Court is unable to assess the temporal proximity
between the Plaintiffs’ allegedly protected activity and the
Defendants’ alleged retaliation given the paucity of well-pled
allegations of protected activity.

Without more than conclusory

statements claiming that each of the Plaintiffs was a “vocal
supporter” of the twelve hour shifts, the Court cannot make any

31

determinations regarding the timing of said “vocal support” or
its temporal proximity to the alleged retaliatory actions.

The

one properly pled allegation of protected activity for which
Plaintiffs identify a timeframe involves Plaintiff Kouvatas’s
position paper supporting the implementation of twelve hour
shifts.

According to the Amended Complaint, Plaintiff Kouvatas

authored the position paper shortly after joining the police
department in 2001.

Am. Compl. ¶ 128-29.

Plaintiff Kouvatas

shared his views with his coworkers on undisclosed occasions
between 2001 and 2007, when he was promoted to sergeant.
¶ 130.

Id. at

Allegedly protected activity taking place even as late

as 2007 cannot support any timely claims of First Amendment
retaliation.

The passage of at least four years between

Plaintiff Kouvatas’s speech and the first actionable retaliatory
acts occurring after March 22, 2011 is not probative of
causation, let alone unduly suggestive of it.

See, e.g.,

Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751,
760 (3d Cir. 2004) (passage of two months between protected
speech and alleged retaliation not unduly suggestive); Estate of
Smith v. Marasco, 318 F.3d 497, 512-13 (3d Cir. 2003) (temporal
proximity not unduly suggestive of retaliatory motive where
protected activity took place between 1991 and 1998 and alleged
retaliation began in 1999).

Not only does the Amended Complaint

fail to sufficiently plead protected conduct, it also fails to

32

adequately plead a causal link between the Plaintiffs’ allegedly
protected activities and the Defendants’ alleged retaliation
and, therefore, must be dismissed.
IV.

Conclusion

For the foregoing reasons, the Court will dismiss with
prejudice all of the claims premised upon alleged retaliatory
actions that took place before March 22, 2011 as barred by the
applicable two-year statute of limitations.

The Court will also

dismiss the Plaintiffs’ punitive damages claims against the
Township of Pennsauken with prejudice because no amendment to
the Amended Complaint would cure the fact that no punitive
damages may be awarded against municipalities in civil rights
actions.

See City of Newport, 453 U.S. at 259.

The Court will

dismiss the remainder of the Amended Complaint without
prejudice.

Plaintiffs will, however, be granted leave to amend

their pleadings within twenty-one (21) days of the entry of this
Opinion in order to cure the deficiencies identified herein.
appropriate Order shall issue on this date.

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

Dated: November 19, 2015

33

An