HOLLAND et al v. MURPHY'S AUTO CARE AND PERFORMANCE CENTER et al
Filing
34
OPINION. Signed by Judge Noel L. Hillman on 6/8/2015. (tf,n.m. )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARYANN COTTRELL and
RICHARD HOLLAND,
CIVIL NO. 14-4831(NLH)(AMD)
Plaintiffs,
v.
MURPHY'S AUTO CARE AND PERFORMANCE
CENTER, doing business as MURPHY’S
AUTO, MATTHEW MURPHY, DANNY MURPHY,
SR., DANIEL MURPHY, JR., BILL SMITH
SNAP ON TOOLS, JOHN HEADLEY,
WASHINGTON TOWNSHIP POLICE, POLICE
OFFICER CPL. N. MEYERS, POLICE
OFFICER LT., POLICE DET. FRATTALLI,
JOHN AND JANE DOE,
Defendants.
APPEARANCES:
RICHARD G. HOLLAND
MARYANN COTTRELL
31 SOUTH ACADEMY STREET
GLASSBORO, NJ 08028
Appearing pro se
STEPHEN GUICE
LAW OFFICES OF STEPHEN GUICE, P.C.
413 CLEMENTS BRIDGE ROAD
BARRINGTON, NJ 08007
On behalf of defendants Murphy's Auto Care and Performance
Center, doing business as Murphy’s Auto, Matthew Murphy, Danny
Murphy, Sr., Daniel Murphy, Jr.
LOUIS D. TAMBARO
MARKS & KLEIN LLP
63 RIVERSIDE AVENUE
RED BANK, NJ 07701
On behalf of Bill Smith Snap-on Tools
ROBERT A. BAXTER
KELLEY, WARDELL, CRAIG, ANNIN & BAXTER, LLC
41 GROVE STREET
HADDONFIELD, NJ 08033
On behalf of the Washington Township defendants
HILLMAN, District Judge
Presently before the Court are the motions of several
defendants to dismiss plaintiffs’ claims against them.
Also
pending is plaintiffs’ motion for leave to amend their
complaint.
For the reasons expressed below, defendants’ motions
will be granted and plaintiffs’ motion will be denied.
BACKGROUND
Plaintiffs Maryann Cottrell and Richard Holland, appearing
pro se, have been “long time advocates for the disabled.”
(Compl. ¶ 26.)
Ms. Cottrell is hearing impaired and is the
mother of a severely disabled daughter.
Mr. Holland is Ms.
Cottrell’s daughter’s secondary caregiver.
Plaintiffs’ advocacy is well known to this Court. 1
As the
1
To date, plaintiffs have filed nineteen actions in this
courthouse as part of their efforts as “advocates for the
disabled”:
1:06-cv-01163-RMB-JS COTTRELL et al. v. GLASSBORO PUBLIC SCHOOL DISTRICT et al.
1:08-cv-01171-NLH-JS COTTRELL et al. v. ROWAN UNIVERSITY et al.
1:08-cv-01700-JEI-AMD COTTRELL et al. v. DANTE J. MASSO & SONS, INC. et al.
1:08-cv-01738-RBK-KMW COTTRELL et al. v. GOOD WHEELS et al.
1:08-cv-02827-JHR-JS COTTRELL et al. v. LONG SELF STORAGE, INC. et al.
1:08-cv-03340-JEI-AMD COTTRELL et al. v. ZAGAMI, LLC
1:08-cv-05418-NLH-KMW COTTRELL et al. v. J&R DISCOUNT LIQUOR GALLERY, INC.,
1:09-cv-00240-JBS-AMD COTTRELL v. WOODBURY NISSAN, INC. et al.
1:09-cv-01743-RBK-JS COTTRELL et al. v. HERITAGES DAIRY STORES INC. et al.
1:09-cv-01987-JBS-JS COTTRELL et al. v. BOBS LITTLE SPORT SHOP, INC. et al.
1:11-cv-00610-JHR-AMD COTTRELL et al. v. MATT BLATT, INC. et al.
1:11-cv-06662-NLH-AMD COTTRELL et al. v. FOSTERS et al.
2
Third Circuit summarized, “Holland and Cottrell live together
and care for Cottrell's severely disabled child, and are
advocates for the disabled.
They contact public authorities
about businesses that do not provide required access for
disabled persons, and lodge citizens' complaints regarding
improper use of parking spaces designated for persons with
disabilities.”
Cottrell v. Good Wheels, 458 F. App’x 98, 99 (3d
Cir. 2012).
It is Plaintiffs’ practice to document, usually through
video in addition to their personal observation, instances of
the unauthorized use of handicap-accessible parking spaces, and
then report these violations to the business owners and the
local police.
As a result of this conduct, business owners
often “ban” plaintiffs from their property, which plaintiffs
allege constitutes retaliation in violation of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and
the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A.
10:6–1 et seq.
See, e.g., Cottrell v. Zagami, LLC, 537 F. App’x
46 (3d Cir. 2013); Cottrell v. Nicholson Properties, LLC, 2014
1:12-cv-01986-NLH-JS COTTRELL et al. v. NORMAN et al.
1:12-cv-02128-NLH-KMW COTTRELL et al. v. NICHOLSON PROPERTIES LLC et al.
1:13-cv-02847-NLH-KMW COTTRELL et al. v. RECREATION CENTER LLC et al.
1:14-cv-03309-NLH-KMW COTTRELL et al. v. DUFFIELD'S INC. et al.
1:14-cv-04831-NLH-AMD HOLLAND et al. v. MURPHY'S AUTO CARE CENTER et al.
1:14-cv-07159-NLH-KMW COTTRELL v. WAWA, INC. et al.
1:15-cv-02267-NLH-KMW COTTRELL et al. v. FAMILY PRACTICE ASSOCIATES
WASHINGTON, PA et al.
3
WL 5390671, *1 (D.N.J. 2014); Cottrell v. Rowan University, 786
F. Supp. 2d 851, 853-54 (D.N.J. 2011) (“Plaintiffs are advocates
for the disabled, and they inform local authorities about
businesses that fail to maintain handicap accessible parking and
fail to discourage unauthorized use of handicapped parking
spaces. . . . Although plaintiffs dispute that their enforcement
activities caused any consternation to Rowan students, staff,
visitors or administration, . . . their conduct over the course
of several months resulted in Rowan University issuing them a
trespass letter banning them from campus.”).
The situation in this case started with the usual scenario.
Plaintiffs claim that on August 2, 2012, they were driving on
Delsea Drive in Washington Township, New Jersey when they
observed a Snap-on Tools truck parked in the only handicap
parking space provided at Murphy’s Auto Care.
Mr. Holland drove
into the parking lot and Ms. Cottrell began videotaping the
alleged parking violation.
In the parking lot, Mr. Holland
turned the car around so Ms. Cottrell could videotape the front
of the truck.
Mr. Holland then continued to drive toward the
parking lot exit.
At this point, the situation diverged from plaintiffs’
typical course because, according to plaintiffs, the owners of
Murphy’s Auto Care, defendants Danny Murphy, Sr., Daniel Murphy,
Jr., and Matthew Murphy, and the driver of the Snap-on Tools
4
truck, defendant John Headley, apparently already knew of
plaintiffs and their methodology for documenting handicap
parking violations, and they instantly “retaliated” against
plaintiffs for their efforts.
Plaintiffs claim in their
original complaint that the four men surrounded plaintiffs’ car
and Headley banged on the windows, sat on the back of the car,
and then moved to the passenger side to take pictures of Ms.
Cottrell videotaping.
Plaintiffs claim that Matthew Murphy
pressed his body against the driver’s side door, took pictures
of Mr. Holland, leaned onto the surface of the car with this
hands, one of which was holding a cigarette, and then sat on the
hood.
Plaintiffs claim that Daniel Murphy, Jr. gave Ms.
Cottrell the middle finger gesture.
Plaintiffs claim that they
had been frightened by the defendants’ conduct, and became even
more so when Matthew Murphy tried to open Mr. Holland’s door.
Plaintiffs claim that Mr. Holland called the Washington
Township Police.
When the police arrived, plaintiffs claim that
the police did not ask them what had happened, but the police
spoke with the four defendants.
Mr. Holland was arrested for
“assault by auto.”
Plaintiffs’ proposed amended complaint contains more
allegations.
In their amendments, plaintiffs claim that the
police were told that Mr. Holland backed over Danny Murphy, but
Mr. Holland told the police that it was not true.
5
Plaintiffs
claim that police officers at the scene repeatedly stood in
front of Ms. Cottrell’s video camera, and one officer told her
to turn it off.
Plaintiffs claim that the police retained her
driver’s license for 45 minutes, and when it was finally
returned to her, she could not leave because Daniel Murphy, Jr.
was standing behind the car, and the officer would not tell him
to move.
Plaintiffs further claim in their proposed amended
complaint that the four defendants made a video statement to the
Washington Township Police Department, where Danny Murphy admits
to standing behind plaintiffs’ vehicle, and stating, “I put my
hands on the truck to kind of get myself out of the way, my knee
wanted to go the other way, then a crack maybe a pop and on the
ground I went.”
(Amend. Compl. ¶ 94.)
Plaintiffs claim that
Danny Murphy caused his own injury and that he had a preexisting
condition.
In their proposed amended complaint, plaintiffs relate that
Ms. Cottrell filed a citizen’s complaint against Murphy’s Auto
for allowing the Snap-on Tools truck to park in the handicap
parking space.
Ms. Cottrell also filed a citizen's complaint
against Snap-on Tools for illegally parking in the handicap
spot, for which Headley pleaded guilty.
Plaintiffs further
relate that a year earlier in June 2011, Ms. Cottrell had filed
a citizen’s complaint against Snap-on Tools for parking in a
6
handicap space in Glassboro.
Based on the August 2, 2012 incident, plaintiffs state that
they filed harassment charges against all the defendants in
Washington Township Municipal Court.
On April 19, 2013, Ms.
Cottrell made a verbal request for discovery as a part of their
harassment case, but Headley and Matthew Murphy spoliated
evidence by deleting the pictures they took during the incident.
Plaintiffs claim “nothing was done to defendants for
spoliation,” and that the judge and prosecutor “washed away” all
the charges except the handicap parking violation that Headley
pleaded guilty to.
Based on these allegations, plaintiffs claim that the
Murphy’s Auto Care and Snap-on Tools defendants have violated
the ADA and NJLAD by retaliating against them for their
protected activities.
Plaintiffs also claim that the Washington
Township Police violated Mr. Holland’s due process rights by not
asking for his side of the incident.
In their proposed amended
complaint, plaintiffs have added claims for malicious
prosecution, “failure to enforce,” and equal protection
violations against the Washington Township Police Department
defendants, and a claim for false imprisonment against the
Murphys and John Headley.
Prior to plaintiffs filing their motion for leave to file
an amended complaint, the Murphy’s Auto Care and Bill Smith
7
Snap-on Tools defendants filed motions to dismiss plaintiffs’
claims against them.
Plaintiffs did not oppose these motions,
and instead filed their motion to amend.
The Washington
Township defendants filed a motion to dismiss based on the
claims in plaintiffs’ proposed amended complaint.
Plaintiffs
filed an opposition to the Washington Township defendants’
motion.
A.
Subject matter jurisdiction
Plaintiffs have brought their claims under federal law, as
well as under New Jersey state law.
This Court has jurisdiction
over plaintiffs’ federal claims under 28 U.S.C. § 1331, and
supplemental jurisdiction over plaintiffs’ state law claims
under 28 U.S.C. § 1367.
B.
Standard for Motion to Dismiss
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 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.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
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
8
evidence, and it is not necessary to plead all the facts that
serve as a basis for the claim.
F.2d 434, 446 (3d Cir. 1977).
Bogosian v. Gulf Oil Corp., 562
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 Cnty. 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
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claim.’”
Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007)
(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 684 (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.”). Following the Twombly/Iqbal
standard, the Third Circuit has instructed a two-part analysis
in reviewing a complaint under Rule 12(b)(6).
First, the
factual and legal elements of a claim should be separated; a
district court must accept all of the complaint's well-pleaded
9
facts as true, but may disregard any legal conclusions.
578 F.3d at 210 (citing Iqbal, 129 S. Ct. at 1950).
Fowler,
Second, a
district court must then determine whether the facts alleged in
the complaint are sufficient to show that the plaintiff has a
“‘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. Cnty. 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
10
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).
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).
If any other matters outside the pleadings are presented
to the court, and the court does not exclude those matters, a
Rule 12(b)(6) motion will be treated as a summary judgment
motion pursuant to Rule 56.
C.
Fed. R. Civ. P. 12(b).
Standard for Motion for Leave to Amend
Amendments to pleadings are governed by Federal Civil
Procedure Rule 15, which provides that the Court “should freely
give leave when justice so requires.”
Fed. R. Civ. P. 15(a)(2).
The Third Circuit has shown a strong liberality in allowing
amendments under Rule 15 in order to ensure that claims will be
decided on the merits rather than on technicalities.
Dole v.
Arco Chemical Co., 921 F.2d 484, 487 (3d Cir. 1990); Bechtel v.
Robinson, 886 F.2d 644, 652 (3d Cir. 1989).
An amendment must
be permitted in the absence of undue delay, bad faith, dilatory
motive, unfair prejudice, or futility of amendment.
Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)).
11
Amendment of the
complaint is futile if the amendment will not cure the
deficiency in the original complaint or if the amended complaint
cannot withstand a renewed motion to dismiss.
Jablonski v. Pan
American World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988).
D.
Analysis
Plaintiffs’ case can be separated into two categories:
(1)
plaintiffs’ ADA and NJLAD retaliation claims against the
Murphy’s Auto Care and Snap-on Tools defendants, and (2)
plaintiffs’ constitutional violation and tort claims against the
Washington Township defendants.
The Court will address each
category in turn.
(1) ADA and NJLAD retaliation claims
The Murphy’s Auto Care and Snap-on Tools defendants have
moved to dismiss plaintiffs’ ADA and NJLAD retaliation claims
for failure to sufficiently state their claims. 2
2
They have also
Plaintiffs’ proposed amended complaint contains a claim against
the Murphy’s Auto Care and Snap-on Tools defendants for false
imprisonment.
False imprisonment is “the constraint of the
person without legal justification.” Mesgleski v. Oraboni, 748
A.2d 1130 (N.J. Super. Ct. App. Div. 2000) (explaining that the
tort of false imprisonment has two elements: (1) “an arrest or
detention of the person against his or her will” and (2) “lack
of proper legal authority or legal justification”). As a result
of the analysis, infra, this is the only remaining claim in
plaintiffs’ proposed amended complaint. Because all of
plaintiffs’ federal claims are dismissed, to the extent that the
Court would find this claim to be sufficiently pleaded, the
Court would decline to continue exercising supplemental
jurisdiction over this state law claim. Thus, granting
plaintiffs leave to proceed with this lone claim, without any
independent basis for jurisdiction, would be futile.
12
moved to dismiss plaintiffs’ claims for lack of standing.
To prove a claim of retaliation under the ADA and NJLAD, a
plaintiff must first establish that (1) he was engaged in
protected conduct; (2) an adverse action was taken; and (3)
there is a causal link between the protected conduct and the
adverse action.
Good Wheels, 458 F. App’x at 100-01 (citing
Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 757
(3d Cir. 2004) (stating elements of prima facie case of
retaliation in an ADA claim); Victor v. State, 4 A.3d 126, 141
(N.J. 2010) (stating elements of a prima facie case of
retaliation in a NJLAD claim)).
As in their other cases, plaintiffs readily meet the
pleading standard for these retaliation claims simply by
describing the typical scenario of their advocacy efforts.
Plaintiffs allege that their observing and videotaping of
handicap parking violations at business establishments is
protected conduct, when the business owners ban them or
otherwise restrict them from the premises, that action
constitutes an adverse action, and plaintiffs’ “protected
conduct” is the cause of the business owners “adverse actions.”
Although in their motions to dismiss, the business owners
often deny that their alleged “adverse actions” were because of
plaintiffs’ efforts to advocate for the disabled, but rather
because plaintiffs were disruptive to their businesses and
13
harassing to other patrons, those explanations and defenses
cannot be considered at the motion to dismiss stage.
Thus,
allegations of adverse conduct, sufficiently pled, will allow
plaintiffs’ ADA and NJLAD retaliation claims to survive a Rule
12(b)(6) challenge, and the case will proceed through discovery. 3
Plaintiffs’ ADA and NJLAD retaliation claims have been
found, however, to be dismissible at the pleading stage for lack
of standing.
See, e.g., Cottrell v. Heritages Dairy Stores,
Inc., 2010 WL 3908567, *2 (D.N.J. 2010); Cottrell v. Bobs Little
Sport Shop, Inc., 2010 WL 936212, *1 (D.N.J. 2010); Cottrell v.
Zagami, LLC, 2009 WL 1416044 (D.N.J. 2009).
Pursuant to Federal
Rule of Civil Procedure 12(b)(1), courts have dismissed
plaintiffs’ similar ADA/NJLAD retaliation claims for lack of
subject matter jurisdiction because plaintiffs sought
prospective, injunctive relief, but their claims did not allege
concrete plans to return to business establishment, thus failing
to show that there was a real and immediate threat that they
would be harmed by the defendants’ allegedly retaliatory conduct
3
Defendants in this case contend that plaintiffs manufacture
their own retaliation claims, which cannot be dismissed and must
be litigated at great expense to the defendants, in bad faith,
stretching the intention of the ADA and NJLAD “to the farthest
extent of all common decency,” bringing “upon the courts
needless litigation and to intentionally harass businesses.”
(Docket No. 14, at 13-14.) To the extent these claims assert
factual or affirmative defenses, we do not address them here,
even if true.
14
in the future.
See cases cited, supra; see also Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (citations
and quotations omitted) (explaining that “the irreducible
constitutional minimum of standing contains three elements”: (1)
the plaintiff must have suffered an invasion of a legally
protected interest which is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical; (2)
there must be a causal connection between the injury and the
conduct complained of--the injury has to be fairly traceable to
the challenged action of the defendant, and not the result of
the independent action of some third party not before the court;
and (3) it must be likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision).
Plaintiffs, as the parties invoking federal jurisdiction,
have the burden of establishing these elements.
at 561.
Lujan, 504 U.S.
In this case, plaintiffs have failed to do so.
As a
primary matter, plaintiffs have not opposed the Murphy’s Auto
Care and Snap-on Tools defendants’ motions to dismiss, which
challenge plaintiffs’ standing to bring their claims.
fatal to their case.
This is
Id. (“Since [the standing elements] are
not mere pleading requirements but rather an indispensable part
of the plaintiff's case, each element must be supported in the
same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence
15
required at the successive stages of the litigation.”).
Even if, however, plaintiffs had opposed the motions, the
circumstances of their claims demonstrate that enjoining
defendants from retaliating against plaintiffs in the future
would be inconsequential.
Plaintiffs claim that they were
driving on Delsea Drive when they noticed a Snap-on Tools truck
parked in the handicap parking space at Murphy’s Auto Care.
Plaintiff’s complaint does not contain any allegations that they
intended to patronize the business that day, had patronized the
business in the past, or intend to patronize the business in the
future.
Therefore, providing plaintiffs with the relief they
seek – an injunction against the defendants from retaliating
against them for their documentation of handicap parking
violations at Murphy’s Auto Care – would not redress an actual
or imminent injury because there is no allegation that it will
reoccur.
In addition to the general prudential principals of
standing, another element of standing exists in ADA cases where
a plaintiff brings suit for injunctive relief.
In ADA cases,
“[t]he proper analysis of standing focuses on whether the
plaintiff suffered an actual injury, not on whether a statute
was violated.
Although Congress can expand standing by enacting
a law enabling someone to sue on what was already a de facto
injury to that person, it cannot confer standing by statute
16
alone.”
Doe v. National Bd. of Medical Examiners, 199 F.3d 146,
153 (3d Cir. 1999) (citing Lujan, 504 U.S. at 578).
In this case, plaintiffs’ allegations confirm that they did
not personally suffer an injury as a result of their ADAprotected activities.
Plaintiffs’ complaint relates that they
were merely driving by Murphy’s Auto Care when they noticed the
Snap-on Tools truck parked in the handicap parking space.
They
do not claim that they intended to patronize Murphy’s Auto Care
but were prohibited from doing so because the Snap-on Tools
truck prevented them from parking in the handicap parking space.
Additionally, the handicap parking violation was perpetrated by
a truck not under the control of Murphy’s Auto Care.
Moreover,
it is a transient condition, with no allegations that
plaintiffs’ access to parking at Murphy’s Auto Care would be
prevented if they decided to visit the business in the future.
Accordingly, plaintiffs also lack standing to bring their
retaliation claims because they have not alleged that they
suffered an actual injury relating to the alleged ADA and NJLAD
violations.
See Cottrell v. Wawa, Civ. A. 14:7159 (NLH/KMW)
(Docket No 4 at 9) (citing Lyons, 461 U.S. at 109 (explaining
that injunction without imminent violation of law is
inappropriate)) (“Even though Ms. Cottrell has purportedly
visited the Wawa facility in the past and continues to return to
the property, the complaint describes only one instance of a
17
delivery truck parked in the handicap parking space.
This
isolated past incident does not support the conclusion that
there is a likelihood that the injury will reoccur when Ms.
Cottrell returns to the Wawa premises.
Ms. Cottrell therefore
does not meet her burden of demonstrating that she is under
threat of suffering an “injury in fact” that is concrete,
particularized, and actual or imminent.
As such, at this time
she fails to demonstrate that she has standing to seek
prospective injunctive relief against Defendants.”).
The objective of plaintiffs’ advocacy actions is to
eliminate barriers to disabled people’s access to businesses.
Plaintiffs effect that worthy goal by recording evidence of
transgressions and filing citizen’s complaints against the
perpetrators, which, as demonstrated by Snap-on Tools’ guilty
plea in this case, provides vindication for plaintiffs and the
disabled people they champion.
Beyond those efforts,
plaintiffs’ use of the ADA and NJLAD anti-discrimination and
anti-retaliation laws cannot succeed unless they allege that
they have suffered, or will likely again suffer, a cognizable
injury that can be remedied by a court-ordered injunction. 4
4
The Court emphasizes that plaintiffs lack standing to bring
their present claims because plaintiffs are only seeking
prospective, injunctive relief for their allegations of ADA and
NJLAD retaliation. If plaintiffs could maintain claims under
the ADA and NJLAD that provided for compensatory damages, their
allegations against the Murphy and Snap-on Tools defendants,
18
Accordingly, plaintiffs’ ADA and NJLAD retaliation claims must
be dismissed for lack of standing.
(2) Plaintiffs’ constitutional violation and tort claims
against Washington Township defendants
In their proposed amended complaint, plaintiffs claim that
when Mr. Holland was arrested for assault by auto, the
Washington Township police officers only considered the
defendants’ version of events, and they would not let plaintiffs
tell their side of the story.
Plaintiffs also claim that the
defendants were allowed to roam free, while the plaintiffs were
forced to remain in their car.
Plaintiffs contend that the
police officers’ conduct was a result of plaintiffs having past
problems in Washington Township as a result of their advocacy
efforts.
Plaintiffs claim that defendants’ conduct constituted
malicious prosecution, a violation of plaintiffs’ due process
rights under the Fifth Amendment, and a violation of plaintiffs’
equal protection rights under the Fourteenth Amendment.
Plaintiffs also claim that defendants should be held liable for
failing to enforce the law against parking illegally in a
handicap space.
All of plaintiffs’ claims 5 against the Washington Township
when accepted as true, demonstrate an actual injury in fact.
5
Plaintiffs’ original complaint contained claims against the
Washington Township defendants for “Violation of Civil Rights
Act of 1983,” “Violation of the 14th Amendment,” and “New Jersey
19
defendants fail for the following reasons:
(1) Plaintiffs have not alleged that the defendants’
actions were directed by any policy or custom of Washington
Township.
To state a claim for relief under 42 U.S.C. § 1983, a
plaintiff must allege, first, the violation of a right secured
by the Constitution or laws of the United States and, second,
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).
Municipalities and other local government units are
among those “persons” to which § 1983 liability applies.
Monell
v. New York City Dep’t of Social Services, 436 U.S. 658, 690
(1978).
Local governments, however, cannot be held liable for
the actions of their employees solely based on the doctrine of
respondeat superior.
Id. at 691-95; Bielevicz v. Dubinon, 915
F. 2d 845, 849-50 (3d Cir. 1990).
In order to successfully
state a claim for municipal liability, a plaintiff must allege
that the employees’ actions were pursuant to a policy or custom
of the municipality itself.
Monell, 436 U.S. at 694; Watson v.
Civil Right Act” (sic). The Court considers those claims in
tandem with the claims in plaintiffs’ proposed amended
complaint. Jablonski v. Pan American World Airways, Inc., 863
F.2d 289, 292 (3d Cir. 1988) (amendment of the complaint is
futile if the amendment will not cure the deficiency in the
original complaint or if the amended complaint cannot withstand
a renewed motion to dismiss).
20
Abington, 478 F.3d 144, 155 (3d Cir. 2007).
Plaintiffs have
failed to do so here.
(2)
Township.
Plaintiffs’ claims are asserted against Washington
The police department is not a separate legal entity.
Boneberger v. Plymouth Township, 132 F.3d 20, 25 n.4 (3d Cir.
1997) (a municipality and its police department are a single
entity for the purposes of § 1983 liability).
Plaintiffs’
claims against the individual officers do not specify whether
they are made in their individual and official capacities, but
any official capacity claims are actually claims against
Washington Township.
See Monell v. New York City Dept. of
Social Services, 436 U.S. 658, 690 n.55 (1978) (official
capacity suits “generally represent only another way of pleading
an action against an entity of which an officer is an agent”).
Thus, plaintiffs’ claims against the police department and
against the individual officers in their official capacities
must be dismissed.
(3) Plaintiffs’ Fifth Amendment claim cannot stand against
state actors.
Caldwell v. Beard, 324 F. App'x 186, 189 (3d Cir.
2009) (citation omitted) (“[T]he due process clause under the
Fifth Amendment only protects against federal governmental
action and does not limit the actions of state officials.”).
(4) Plaintiffs do not state a claim for an Equal Protection
violation under the Fourteenth Amendment because they have not
21
pleaded how they were treated differently from similarly
situated persons.
See City of Cleburne, Texas v. Cleburne
Living Center, 473 U.S. 432, 439 (1985) (The Equal Protection
Clause of the Fourteenth Amendment commands that no State shall
“deny to any person within its jurisdiction the equal protection
of the laws,” which is essentially a direction that all persons
similarly situated should be treated alike); Nordlinger v. Hahn,
505 U.S. 1, 10 (1992), quoted in Keystone Redevelopment
Partners, LLC v. Decker, 631 F.3d 89, 109 (3d Cir. 2011) (“The
Equal Protection Clause does not forbid classifications. It
simply keeps governmental decisionmakers from treating
differently persons who are in all relevant respects alike.”);
Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 368
(2001) (explaining that “the result of Cleburne [City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, (1985)] is that
States are not required by the Fourteenth Amendment to make
special accommodations for the disabled, so long as their
actions toward such individuals are rational”).
(5)
Plaintiffs’ tort claim of malicious prosecution fails
for noncompliance with the New Jersey Tort Claims Act.
The
NJTCA provides, “No action shall be brought against a public
entity or public employee under this Act unless the claim upon
which it is based shall have been presented in accordance with
the procedures set forth in this chapter.”
22
N.J.S.A. 59:8-3.
A
tort claim notice “must be served upon the public entity within
90 days of the accrual of the claim, and failure to do so will
forever bar the claimant from recovering against a public entity
or public employee.”
N.J.S.A. 59:8-8.
The New Jersey Tort
Claims Act, N.J.S.A. 59:8-3, applies to both intentional and
non-intentional torts asserted against public employees.
Lassoff v. New Jersey, 414 F. Supp. 2d 483, 490 (D.N.J. 2006)
(citing Velez v. City of Jersey, 180 N.J. 284, 286, 850 A.2d
1238 (2004)).
Plaintiffs do not dispute that they did not
comply with the NJTCA.
(6) Plaintiffs’ claim for defendants’ failure to enforce
N.J.S.A. 39:4–207.9 fails because “there is no legal support for
the proposition that this statute can be used as a private cause
of action.”
Rothman v. City of Northfield, 716 F. Supp. 2d 369,
373 (D.N.J. 2010).
The provision provides, “A person who owns
or controls a parking area which is open to the public
. . .
shall be responsible for assuring that access to these special
parking spaces and to curb cuts or other improvements designed
to provide accessibility for handicapped persons is not
obstructed.”
N.J.S.A. 39:4–207.9(a).
In determining whether a
statute implicitly creates a private cause of action, courts
should consider (1) whether plaintiff is a member of the class
for whose benefit the statute was enacted; (2) whether there is
any evidence that the Legislature intended to create a private
23
cause of action under the statute; and (3) whether such an
implied private cause of action would be consistent with the
underlying purposes of the legislative scheme.
Id. (citing
Matter of State Comm'n of Investigation, 108 N.J. 35, 527 A.2d
851, 854 (1987) (quoting Cort v. Ash, 422 U.S. 66, 78 (1975)).
“There is nothing in the text of the statute itself which
suggests N.J.S.A. 39:4–207 creates a private right of action,
and the rest of the statute deals with the removal of snow and
ice and various monetary penalties for violating these removal
processes.”
Id.
Thus, plaintiffs’ attempt to assert a private
cause of action under this provision must fail.
Consequently, because none of plaintiffs’ claims in their
original and proposed amended complaint are maintainable against
the Washington Township defendants, plaintiffs’ complaint must
be dismissed and their request for leave to file an amended
complaint must be denied.
CONCLUSION
For the reasons expressed above, defendants’ motions to
dismiss plaintiffs’ complaint and disallow the filing of
plaintiffs’ proposed amended complaint shall be granted.
An
appropriate Order will be entered.
Date: June 8, 2015
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
24
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