AIELLOS et al v. ZISA et al

Filing 349

OPINION. Signed by Judge William J. Martini on 8/6/13. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:09-cv-03076 (WJM)

THOMAS AIELLOS, et al.,
Plaintiffs,

OPINION
v.
CHIEF C. KENNETH ZISA, et al.,
Defendants.

WILLIAM J. MARTINI, U.S.D.J.:
This case is one of seven related actions alleging that there was extensive
corruption in the Hackensack Police Department lead by former Chief of Police Kenneth
Zisa. The original Complaint in this action was filed on June 24, 2009. Since that time,
the parties to these cases have filed countless motions, have attended dozens of status
conferences, and have engaged in substantial discovery. As of December 20, 2012, the
majority of the plaintiffs had settled their cases. The four remaining plaintiffs ― Thomas
Aiellos, Vincent Riotto, Donald Pierce, and Scott Sybel (“Plaintiffs”) ― filed a Second
Amended Complaint, consolidating all of their remaining claims into one pleading on one
docket. This matter comes before the Court on a motion to dismiss the Second Amended
Complaint filed by Defendant Tomas Padilla. There was no oral argument. Fed. R. Civ.
P. 78(b). For the reasons set forth below, Padilla’s motion to dismiss is DENIED.
I.

BACKGROUND

The crux of the Second Amended Complaint for all four remaining Plaintiffs is
that they were retaliated against by Zisa, Padilla, and others within the Hackensack Police
Department for the exercise of their First Amendment rights. Specifically, Plaintiffs
allege that they were forced to contribute to and support the political campaigns of Zisa
and Padilla, pressured to maintain financial support for these campaigns, and that they
faced retaliation when they refused to do so. In addition, Plaintiff Riotto alleges that
Zisa, Padilla, and others suspended him and then refused to provide him with a
disciplinary hearing until a year and a half after his suspension. See SAC ¶¶ 240-42, 35253. Riotto further alleges that, when he sought reinstatement one year after his
suspension, Padilla refused to allow him to return to work. Id.
1

The original Complaint in this action was filed on June 24, 2009, and the
Amended Complaint was filed on August 3, 2009. Thereafter, Padilla moved to dismiss
all four counts of the Amended Complaint that were directed at him. On October 20,
2009, this Court entered an Opinion and Order finding that the RICO and
misappropriation claims should be dismissed, and that the First Amendment and
conspiracy claims should go forward. ECF No. 47. The Second Amended Complaint
was filed on December 20, 2012. ECF No. 290. Padilla again moves to dismiss.
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted.
The moving party bears the burden of showing that no claim has been stated. Hedges v.
United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under
Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in
the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975);
Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir.
1998).
Although a complaint need not contain detailed factual allegations, “a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations
must be sufficient to raise a plaintiff’s right to relief above a speculative level, such that it
is “plausible on its face.” See id. at 570; see also Umland v. PLANCO Fin. Serv., Inc.,
542 F.3d 59, 64 (3d Cir. 2008). 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.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing
Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a
‘probability requirement’ . . . it asks for more than a sheer possibility.” Iqbal, 129 S.Ct.
at 1949 (2009).
III.

DISCUSSION

The Second Amended Complaint asserts five causes of action against Padilla:
(1) Count I: Violation of the First Amendment under 42 U.S.C. § 1983;
(2) Count III: Conspiracy (all Plaintiffs);
(3) Count IX: Violation of the Fourteenth Amendment under 42 U.S.C. § 1983;
(4) Count X: Conspiracy (Riotto); and
(5) Count XI: Violation of the New Jersey Civil Rights Act (“NJCRA”).
Padilla moves to dismiss all five counts. The Court will address the First Amendment
claim (Count I), the Fourteenth Amendment claim (Count IX), the conspiracy claims
2

(Counts III and X), and then the NJCRA claim (Count XI). The Court will be brief, as
many of the issues raised by Padilla have already been decided by the Court.
A. The First Amendment Claim (Count I)
Padilla moves to dismiss Plaintiffs’ First Amendment claims, arguing that
Plaintiffs failed to set forth specific facts with respect to Padilla. The Court has already
decided this exact issue. When Padilla moved to dismiss the Amended Complaint, he
made substantially the same arguments. In a detailed opinion, the Court found that (1)
Plaintiffs had stated a valid free speech claim against Padilla under Section 1983, and that
(2) Plaintiffs had stated a valid freedom of association claim against Padilla under
Section 1983. Aiellos v. Zisa, No. 09-3076, 2009 WL 3424190, at *3-7 (D.N.J. Oct. 20,
2009) (“Plaintiffs [argue] that their Amended Complaint alleges specific well-pled facts
which, if proven, would establish that Padilla — himself — took or threatened to take
retaliatory adverse actions. The Court agrees.”). The Second Amended Complaint
contains the exact same allegations that the Court found sufficient in the Amended
Complaint. Because this issue was already thoroughly addressed by the Court, Padilla’s
motion to dismiss Count I is DENIED.
B. The Fourteenth Amendment Claim (Count IX)
In Count IX, Plaintiff Riotto asserts a claim for violation of his procedural due
process rights. Padilla moves to dismiss. The Court finds that the motion to dismiss
Count IX should be denied.
“To state a claim under § 1983 for deprivation of procedural due process rights, a
plaintiff must allege that (1) he was deprived of an individual interest that is encompassed
within the Fourteenth Amendment’s protection of life, liberty, or property, and (2) the
procedures available to him did not provide due process of law.” Hill v. Borough of
Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006) (internal quotations omitted). The
allegations in the Second Amended Complaint support both elements.
First, Riotto was deprived of a property interest. Riotto had a protected property
interest in his employment with the Hackensack Police Department. See Kelly v.
Borough of Sayreville, N.J., 107 F.3d 1073, 1077 (3d Cir. 1997) (It is “unquestionably
correct . . . that public employees may enjoy constitutionally protected property rights in
their employment”); Citta v. Borough of Seaside Park, No. 09-865, 2010 WL 3862561, at
*26 (D.N.J. Sept. 27, 2010) (“[I]t is clear that Plaintiff had a property interest in his
position as a police officer”). Riotto’s suspension from his position thus constituted a
deprivation of property. See Skrutski v. Marut, 288 F. App’x 803, 808 (3d Cir. 2008)
(where state police corporal was suspended, “there is no question [that the corporal] has
established a requisite deprivation of property”).

3

Second, the procedures available to Riotto did not provide him with due process of
law. The due process clause typically requires the government to provide a hearing
before an initial deprivation of property. See Fed. Deposit Ins. Corp. v. Mallen, 486 U.S.
230, 240 (1988); Gilbert v. Homar, 520 U.S. 924, 932 (1997). In certain “limited cases,”
the government may postpone the hearing until after the initial deprivation. Fed. Deposit
Ins. Corp., 486 U.S. at 240. However, the Supreme Court has repeatedly held that any
post-deprivation hearing must take place promptly. See Gilbert, 520 U.S. at 932 (a
“suspended employee [must] receive[] a sufficiently prompt post-suspension hearing”);
Barry v. Barchi, 443 U.S. 55, 64 (1979) (“the State is entitled to impose an interim
suspension, pending a prompt judicial or administrative hearing that would definitely
determine the issues”). In this case, the Second Amended Complaint alleges that Padilla
and Zisa denied Riotto a post-suspension hearing for a year and a half. See SAC ¶¶ 24042, 352-53. When Riotto sought reinstatement one year after his suspension, Padilla
refused to allow Riotto to return to work and still did not provide Riotto with a hearing.
Id. These allegations are more than sufficient to show that Padilla deprived Riotto of his
due process rights.1
Accordingly, Padilla’s motion to dismiss Count IX is DENIED.
C. The Conspiracy Claims (Counts III and X)
In Counts III and X, Plaintiffs assert conspiracy claims (Count III is a conspiracy
claim asserted by all Plaintiffs, while Count X is specific to Plaintiff Riotto). The Court
has twice decided that the conspiracy claims in this case were well-pled. See Aiellos v.
Zisa, No. 09-3076, 2009 WL 3424190, at *9 (D.N.J. Oct. 20, 2009) (“Padilla’s challenge
to the conspiracy count fails”); Aiellos v. Zisa, No. 2:09-3076, 2010 WL 421084, at *3
(D.N.J. Feb. 2, 2010) (“The Court will not dismiss the civil conspiracy claim against
Salcedo at this time”). As the Court has previously explained, Plaintiffs have properly
“allege[d] that Zisa, Padilla, and others conspired to violate Plaintiffs’ First Amendment
free speech and freedom of association rights.” Aiellos, 2009 WL 3424190, at *9. The
Court similarly finds that Plaintiffs have properly alleged that Zisa, Padilla, and others
conspired to violate Riotto’s due process rights. Accordingly, Padilla’s motion to dismiss
Counts III and X is DENIED.
D. The NJCRA Claim (Count XI)
In Count XI, Plaintiffs assert a claim for violation of the NJCRA. “Courts have
repeatedly construed the NJCRA in terms nearly identical to its federal counterpart:
Section 1983.” Stroby v. Egg Harbor Twp., 754 F. Supp. 2d 716, 721 n.5 (D.N.J. 2010);
Chapman v. N.J., No. 08-4130, 2009 WL 2634888, at *3 (D.N.J. Aug. 25, 2009).
1

Riotto also argues that the Judge at his disciplinary hearing was biased. This argument was
already rejected by the Court. See Lee v. Padilla, No. 2:11-1463, 2011 WL 3475480, at *4
(D.N.J. Aug. 9, 2011).
4

Because the Court finds that Plaintiffs have stated valid claims under Section 1983, the
Court likewise finds that Plaintiffs have stated a valid claim under the NJCRA.
Accordingly, Padilla’s motion to dismiss Count XI is DENIED.
IV.

CONCLUSION

For the reasons stated above, Padilla’s motion to dismiss is DENIED. An
appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: August 6, 2013

5