HEINE et al v. COMMISSIONER OF THE DEPARTMENT OF COMMUNITY AFFAIRS OF THE STATE OF NEW JERSEY et al

Filing 171

OPINION. Signed by Judge Kevin McNulty on 9/18/2018. (JB, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ELLEN HEINE, et al.
Civ. No. 2:11-5347 (KM)(LJBC)

Plaintiffs,
V.

COMMISSIONER OF THE DEPARTMENT
OF COMMUNITY AFFAIRS OF THE
STATE OF NEW JERSEY et al.,

OPINION

Defendants.

Plaintiff Ellen Heine sues, along with others, as an owner, occupant, or
person othenvise interested in a building at 515 Van Bussum Avenue in
Garfield, New Jersey (the “Property”). Familiarity with my several prior opinions
on dispositive motions is assumed, and this Opinion should be read in
conjunction with them. (See ECF nos. 50, 74, 97, 103, 127, 143.)
Now before the Court is the motion for summary judgment (ECF no. 164)
filed by the Commissioner of the Department of Community Affairs of the State
of New Jersey (the “Commissioner” of “DCA”). The current operative pleading is
the Seventh Amended Complaint (“7AC”, ECF no. 87). As to the Commissioner
of DCA, my most recent substantive rulings dismissed most of the 7AC. (See
Opinion (“Dismissal Op.”, ECF no. g7), and Order (“Dismissal Order”, ECF no.
98); Memorandum and Order denying motion for reconsideration
(“Reconsideration Op.”), ECF no. 103.) What remain are certain claims under
42 U.S.C.

§

1983 and the Pair Housing Act for injunctive relief, asserted

against the Commissioner and focused on the Garfield Property. It is to those
remaining injunctive claims that the Commissioner’s motion for summary
judgment is directed.
For the reasons stated herein, the Commissioner’s motion for summary
judgment is granted.
1

Background
A. Prior Court Decisions

Some prior litigations involving the Garfield Property (and others) are
relevant. I begin by quoting my summaT of two prior State court decisions
from the Dismissal Opinion:
The first decision is Heine’s appeal from separate court orders
which, after trial, fined her $1500 for refusing to allow warrantless
inspections, and fined her $1750 for maintaining three hazardous
conditions in and around her Garfield building. State v. Heine, 424 N.J.
Super. 48, 35 A.3d 691 (N.J. Super. Ct. App. Div. 2012). The Appellate
Division agreed with Heine that the local ordinance, as applied, was
unconstitutional insofar as it punished Heine’s refusal to permit a
warrantless inspection. However, it rejected Heine’s challenge to the
Garfield property maintenance code as vague, and likewise rejected her
claim of selective enforcement.
The second decision involves the DCA’s determination that plaintiff
Heine’s Garfield building was an unlicensed rooming house:
Petitioner Ellen Heine appeals from the August
11, 2011 final decision of the Commissioner of the New
Jersey Department of Community Affairs
(Department). The Commissioner adopted the initial
decision, dated July 14, 2011, of the Administrative
Law Judge (AW), Barry E. Moscowitz.
This action concerns a property where petitioner
and five or six other persons resided. The property, on
Van Bussum Avenue in Garfield, had been cited for
violations of the construction code and fire safety laws.
In September 2010, the Commissioner notified
petitioner that she was in violation of the Rooming and
Boarding House Act of 1979, N.J. Stat. Ann. § 55:13B—
1 to —16. Petitioner requested and received a hearing,
which took place before the ALl on January 8, March
15, and May 17, 2011, followed by the submission of
briefs.
In his initial decision, the ALl determined that
the property was a “rooming house” under N.J. Stat.
Ann. § 55:13B—3(h), and that petitioner was its
primary owner under N.J. Stat. Ann. § 55: 13B—3(fl,
2

but that she did not have a valid license to operate a
rooming house, and no licensed operator was available
as required under N.J. Stat. Ann. § 55:133—8.
Pursuant to that provision, the AW deemed petitioner
to be the operator, found her responsible for the failure
to comply, see N.J. Stat. Ann. § 55:13B—10(a), and
determined that a $5,000 civil penalty was appropriate
under N.J. Stat. Ann. § 55:133—10(b).
Heine v. Dep ‘t of Cmty. Affairs, Bureau of Rooming & Boarding
House Standards, No. A-2113-I1T1, 2013 WL 1759919, at*1 (N.J.
Super. Ct. App. Div. April 25, 2013). The Appellate Division
affirmed DCA’s final decision that Heine failed to comply with a
state statute requiring a license to operate a rooming house and
assessing a $5,000 civil penalty. It considered Heine’s argument
that the State’s definition of a rooming house is discriminatory and
unconstitutional, but found it lacked sufficient merit to require
discussion in a written opinion.
(Dismissal Op. at 2_4)1
A third case, Heine v. City of Garfield, Civ. No. 11-2655, 2016 WL
8674693 (D.N.J. Dec. 23, 2016), likewise involves the Garfield Property at issue
in this case. It is brought on behalf of Ms. Heine and purportedly on behalf of
“Tenants at 515 Van Bussum Ave., Grieco and Ruppert,” as well as other

Less directly relevant but still pertinent is a decision by now-retired District
Judge Faith S. Hochberg of this Court. Schildknecht v. Townshzjz’ of Montclair, Civ. No.
13-7228, 2014 WL 835790 (D.N.J. March 4, 2014). There, Ann Schildknecht and Ellen
Heine filed a complaint against the DCA and the Township of Montclair for damages
and injunctive relief “[T]he Court denied Plaintiffs’ request for a preliminary injunction
on the basis that Plaintiffs did not show a likelihood of success on the merits—indeed,
the Townships filings showed that Schildlmecht’s deplorable and dangerous living
conditions necessitated emergency intervention by the police, the fire department, and
animal control.” Id. at *1.
Under those circumstances, the Court held, the plaintiff had alleged no cause of
action against the Township of Montclair under § 1983, as there was no
unconstitutional municipal policy or custom sufficient to impose liability under Monell
u. Dep’t of Soc. Sen’s. of New York, 436 U.S. 658 (1978). As to the FHA claim, the court
found no allegation of discrimination in connection with the sale or rental of housing.
Claims that defendants’ actions denied plaintiffs the use of housing simply did not
invoke the “‘exercise of any right granted or protected by section 3603, 3604, 3605, or
*3 DCA was never served,
3606 of this title.’ 42 U.S.C. § 3617.” 2014 WL 835790 at
however, and the action was dismissed against it without prejudice.
3

parties. That case, which challenges the City’s warrantless inspections of the
Property, remains pending. The Hon. Esther Salas of this Court has dismissed
certain of the claims, and a dispositive motion is briefed and pending.
A fourth decision, also by District Judge Salas, has been entered in
Heine v. Dir. of Codes & Standards, Civ. No. 15-8210, 2017 WL 3981135
(D.N.J. Sept. 11, 2017) (Copy at Ex. H, ECF no. 164-3 at 50) (the “8210
Action”). Noting that the same plaintiffs, including plaintiffs here, had filed
multiple, repetitive actions, Judge Salas dismissed the complaint in the 8210
Action with prejudice.2 I focus on the aspects of her decision that are most
relevant here.
The claims in the 8210 Action involved properties in Montclair and New
Brunswick, as well as the Garfield Property that is the subject of this action.
Six of the twenty-one named plaintiffs either were tenants of or had a financial
connection to the Garfield Property. Defendants included the Commissioner of
DCA.3
Judge Salas first dismissed claims involving the towns of Montclair and
New Brunswick on res judicata grounds.4 (Slip

op.

12—18) She then turned to

the allegations against DCA.

These actions are but a sample of the many real estate related actions involving
Ms. Heine in state and federal court.
3
Some now-familiar names appear in the 8210 Action’s list of 21 pro se plaintiffs:
Ellen Heine, Christopher Grieco, Kara Grieco, Ken Burke, Ann Schildlmecht, Andrew
Thscano, Richard Holler, Ruben Williams, Ruthann Hughes, Unita Peni-Okonny,
Theodoro Pagan, Thomas Combs, Solimon Youssef, Paul Dean, Susan Miller, Peter
Martens, Frank Bright, Nadeem Shahidi, Wendell Sellers, Robert Dow, and Joseph
Fabics.
The 8210 Action also contained a claim against JP Morgan Chase Bank that
was virtually identical to the one asserted in Count 7 of the 7AC here (now dismissed).
(See ECF no. 127.) I ignore claims against Bergen County DYFS, which are not
relevant here.
4
In doing so, she noted the multiplicity of prior actions brought by Heine, but
focused on three: SchUdknecht ii. flup. Of Montclair, No. 13-7228 (D.N.J.) (discussed at
n.1, supra); Fabics t.’. City ofNew Brunswick, Civ. No. 14-2202, 2015 WL 10936119
(D.N.J. Jan. 14, 2015); and Fabics ii. City ofNew Brunswick, No. 13-6025, 2015 WL
2

4

As to DCA, Judge Salas again applied res judicata. (Slip.

op.

18—23) The

claims against the Commissioner of OCA, she found, had been finally
adjudicated in prior actions relating to the properties in Montclair and New
Brunswick. Those claims against DCA, as Judge Salas described them, were (a)
that DCA exercised inadequate oversight as to the municipalities’ code
enforcement activities; and (b) that it violated the Constitution by the manner
in which it promulgated or enforced regulations under the Rooming and
Boarding House Act of 1979, the Uniform Construction Code, and the Uniform
Fire Code. Those claims, held Judge Salas, had already been decided in DCA’s
favor and against the plaintiffs, including Heine, by final judgments entered in
the three actions cited. (See n.4, supra.)
The 8210 Action’s addition of Garfield plaintiffs (such as the Griecos),
Judge Salas held, did not negate the res judicata effect of the earlier Montclair
and New Brunswick judgments. The federal complaint in the 8210 Action, she
wrote, did not “identify] any additional conduct by the DCA” that would
distinguish the current complaint from the prior ones. (Slip op. at 2 1-22) Thus
the 8210 Action’s claims as to DCA had already been adjudicated.
At any rate, Judge Salas wrote, the allegations against the Commissioner
of DCA involving, e.g., the Griecos and Burke (and therefore the Garfield
Property) failed to meet Rule 8’s pleading standards. (Slip Op. 20 n.23). The
Complaint in the 8210 Action alleged generally that DCA somehow exercised
inadequate oversight and violated the Constitution in relation to rooming
house, fire safety, and construction regulations. (Slip Op. 19) It further alleged
that the Griecos and others “experienced negativity in housing due to single
status” because their residence had been incorrectly designated as a rooming
house. They allegedly sought to reoccupy the Garfield Property, which the City
5167153 (D.N.J. Sept. 3,2015), affd, 674 F. App’x 206, 210-11 (3d Cir. 2016). AU
resulted in final judgments in favor of the defendants.
On review, I notice that my Opinion granting the motion to dismiss of JP
Morgan Chase contains a stray erroneous reference to those prior cases as “State
court actions.” (See ECF no. at 12.) The substance of the Opinion is unaffected.
0

had closed five years previously based on an Imminent Hazard Notice. Nothing
about these allegations, wrote Judge Salas, came close to factually alleging a
federal claim. (Slip

op.

20 n.23).5

Judge Salas carefully analyzed the grounds for dismissal and concluded,
particularly in light of the plaintiffs many prior related actions, that
amendment would be futile. The 8210 Action was therefore dismissed with
prejudice.
B. Procedural History

In this action the plaintiffs, Ellen Heine, et a!., identify themselves as,
among other things, “occupants and tenants and beneficiaries” of a building at
515 Van Bussum Avenue in Garfield, New Jersey (the “Property”). (7AC

¶

1) It

is alleged that the Property was improperly regulated as a rooming house by
the DCA, and/or improperly closed based on code violations and fire hazards.
Plaintiffs filed the 7AC against the Commissioner of DCA in his official
capacity.
Governmental entities also named as defendants were the Bureau of
Rooming and Boarding House Standards (“BRBHS”) (a subdivision of DCA); the
Bergen County Division of Youth and Family Services (“DYFS”); and “other NJ
state agencies and entities.” All claims have been dismissed against those
defendants. (See Dismissal Opinion, ECF no. 97; Dismissal Order, ECF no. 98.)
Also named as a defendant in one count was J.P. Morgan Chase, N.A. I granted
Chase’s motion to dismiss the 7AC. (See Opinion and Order, ECF nos. 127,
128; Order and Opinion on Reconsideration, ECF nos. 142, 143.) The only
remaining defendant, then, is the Commissioner of DCA.

In addition, she concluded, the plaintiffs’ grievances were not attributed to an
official policy or custom under Mar-tell v. Dep’t of Soc. Sews. Of N.Y., 436 U.S. 658,
690—91 (1978). (Slip Op. 20 n.23; see also Id. at 19 n.20.) The complaint did not
identify any relevant custom or policy with specificity, or trace the alleged harms to
such a policy. (Slip Op. at 25—26)
S
The State of New Jersey itself, named as a defendant in earlier iterations of the
Complaint, is not named in the 7AC. The 7AC will also be dismissed as against the
John Doe and ABC defendants, who have never been identified.
5

6

C. Surviving Allegations of the 7AC

In my prior Dismissal Opinion (ECF no. 97) I noted that all claims for
damages, except for one under the Americans with Disabilities Act (“ADA”), had
earlier been dismissed for lack of jurisdiction under the Eleventh Amendment.
The 7AC, however, added claims for declaratory and injunctive relief. For the
most part these, too, failed to survive Eleventh Amendment scrutiny; the only
claims as to which I found subject matter jurisdiction were federal-law claims
against the Commissioner of the DCA for injunctive relief under 42 U.S.C.

§

1983, Title II of the ADA, and the Fair Housing Act (“FHA9. I then held that the
complaint failed to state a cause of action under the ADA, but did state a claim
for injunctive relief under section 1983 and the FHA.
As to surviving issues, for ease of reference I quote a relevant portion of
the Dismissal Opinion:
a. Injunctive Relief under

1983 and the FHA

As discussed, the Court has subject matter jurisdiction only
as to Plaintiffs’ § 1983 and FHA claims against the Commissioner,
insofar as they seek prospective relief—in practical terms, an
injunction.
To obtain injunctive relief, the court must consider whether:
“(1) the moving party has shown actual success on the merits; (2)
the moving party will be irreparably injured by the denial of
injunctive relief; (3) the granting of the permanent injunction will
result in even greater harm to the defendant; and (4) the injunction
would be in the public interest.” Coffelt u. Fawkes, 765 F.3d 197,
201 (3d Cir. 2014) (quoting Shields a Zuccarini, 254 F.3d 476, 482
(3d Cir. 2001)).
As to injunctive relief, the allegations of ongoing harm are
quite thin; the buildings, for example, seem to have been closed or
demolished. [fn. omitted] The Complaint does, however, allege
ongoing effects such as denial of access, deterioration of the
Garfield property, foreclosure proceedings, and so on.
There are many reasons, relating to standing or the merits,
why the remaining claims might not survive scrutiny. The State,
7

however, focused primarily on matters such as the preclusive effect
of my prior ruling or res judicata, grounds which I have found
inapplicable. The merits of the claims have not been thoroughly
briefed. I do note, however, that the Complaint, it is true, asserts a
bewildering variety’ of half-expressed theories.
Most if not all would probably be doomed by a showing that
the properties were closed based on basic health and safety
violations, as opposed to any concern unique to regulation of
rooming houses or their occupants. We are, however, at the
pleading stage, and consideration of such factual matters would be
premature.
(Dismissal
II.

op. pp.

20—21)

Applicable Standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. I?. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247—48, 106 5. Ct. 2505, 2509—10 (1986); Kreschollek u. S. Stevedoring Co.,
223 F.3d 202, 204 (3d Cir. 2000).
“When the moving party has the burden of proof at trial, that party must
show affirmatively the absence of a genuine issue of material fact.” In re
Bressman, 327 F.3d 229, 238 (3d Cir. 2003) (quoting United States

ii.

Four

Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)). That is, the
moving party must demonstrate that “on all the essential elements of its case
on which it bears the burden of proof at trial, no reasonable

jury

could find for

the non-moving party.” Id.
On the other hand, “with respect to an issue on which the nonmoving
party bears the burden of proof

...

the burden on the moving party may be

discharged by ‘showing’—that is, pointing out to the district court—that there
is an absence of evidence to support the nonmoving party’s case.” Celotex Corp.
v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554 (1986). If the nonmoving

party has failed “to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the
8

burden of proof at trial,

...

there can be ‘no genuine issue of material fact,’

since a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Katz a
Aetna Cas. & Stir. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex, 477
U.S. at 322—23, 106 S. Ct. at 2552).
To demonstrate the existence of a genuine issue, a party “must do more
than simply show that there is some metaphysical doubt as to material facts.”
Matsushita Elec. Indus. Co., Ltd. a Zenith Radio Corp., 475 U.S. 574, 586, 106
S. Ct. 1348, 1356 (1986). Likewise, “unsupported allegations

...

and pleadings

are insufficient to repel summary judgment.” Schoch v. First Fid.
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Rather, a party’ must present
evidence sufficient to create a triable issue. Anderson, 477 U.S. at 248—49, 106
S. Ct. at 2510; Gleason a Nonvest Mortg., Inc., 243 F.3d 130, 138 (3d Cir.
2001) (“A nonmoving party has created a genuine issue of material fact if it has
provided sufficient evidence to allow ajuxy to find in its favor at trial.”). By
evidence, the Rule means “materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.
56(c)(1)(A). In construing such evidence, however, the court must draw
inferences in the light most favorable to the nonmoving party. See Boyle v.
County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998).
In deciding a motion for summary judgment, the courts role is not to evaluate
the evidence and decide the truth of the matter, but to determine whether there
is a genuine issue for trial. Anderson, 477 U.S. at 248—49, 106 S. Ct. at 2510.
Credibility determinations are the province of the fact finder. Big Apple BMW,
Inc. v. BMWof N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992).
III.

Discussion

This motion for summary judgment is brought by the only remaining
defendant, the Commissioner of DCA, in relation to the only remaining claims,

9

those for injunctive relief under 42 U.S.C.

§ 1983 and the Fair Housing Act. In

Sections IIl.A, B, and C, I discuss the issues raised by the commissioner. In
Section III.D, I raise sua sponte other fundamental flaws in the plaintiffs’
claims, chiefly the res judicata bar and failure to establish the essential
elements of a substantive claim under

§ 1983 or the FHA.

A. Parties
Throughout this case, the most active pro se plaintiffs have purported to
speak for other persons named as plaintiffs. On March 27, 2018, Magistrate
Judge Clark ordered that any named plaintiff wishing to continue “shall either
file their own motion and/or opposition to Defendant’s forthcoming [dispositive]
motion or shall submit a notice of joinder in a co-Plaintiffs motion in writing.”
(ECF no. 160) Failure to do so, wrote Judge Clark, would constitute
“confirmation of that Plaintiffs non-opposition to the dismissal of their claims.”
(Id.)
Only four of the named plaintiffs have joined in the opposition to the
Commissioner’s motion or otherwise signaled their continued participation in
this lawsuit. They are: Ellen Heine, Chris Grieco, Ann Schildknecht, and Unita
Peri-Okonny. Preliminarily, then, the action will be dismissed as to the
nonresponding plaintiffs: Caitlin and Therese Ruppert, Joseph Fabics
(deceased), Ryan Moskowitz, Paul Wondowsky, and John F. Malone.
B. The Commissioner is Entitled to Judgment Because the
Property was Closed by the City of Garfield Based on
Hazardous Conditions
Plaintiffs Heine, et a?., are suing the Commissioner, claiming that the
State’s regulation of the Garfield property as a “rooming house” is illegal. I set
that issue aside until the following section, however, because a major premise
of the argument—that the Commissioner as regulator of rooming houses is
responsible for closing the Property and evicting the occupants—is factually
unsustainable. As I pointed out in my prior Dismissal Opinion (quoted at pp.
6—7, supra), “[m]ost if not all [of the remaining claims) would probably be
doomed by a showing that the properties were closed based on basic health
10

and safety violations, as opposed to any concern unique to regulation of
rooming houses or their occupants.” That showing has now been made. The
City of Garfield (and not the DCA) closed the Property because it was in a
hazardous condition (and not because Heine was operating an unlicensed
rooming house).
The Commissioner casts the argument as one of Article III standing—i.e.,
that no injury cognizable under 42 U.S.C.

§ 1983 or the PHA is traceable to the

Commissioner or the DCA. Whether viewed as a standing issue or as failure to
state a claim, however, the issue is the same.7
Section 1983 imposes liability only on a “person who, under color of any
law, statute, ordinance, regulation, custom, or usage of any State, shall
subject, or cause to be subjected, any person

.

.

.

to the deprivation of any

rights, privileges, or immunities secured by the Constitution of the United
States.” 42 U.S.C.

§ 1983. Thus “a plaintiff must demonstrate a defendant’s

‘personal involvement in the alleged wrongs. A plaintiff makes sufficient
allegations of a defendant’s personal involvement by describing the defendants
participation in or actual knowledge of and acquiescence in the wrongful
conduct.” Chavarriaga z.’. New Jersey Dept of Corr., 806 F.3d 210, 222 (3d Cir.
2015) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). Cf
Monell a Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978) (no
respondeat superior liability under

§ 1983).

The Federal Housing Act addresses a different set of concerns:
The FHA makes it unlawful to do any of the following on the basis
The Commissioner perhaps takes on a heavier burden than necessary’. The
Supreme Court has held that FHA liability is confined by a “zone of interests” analysis,
and does not extend to the limits of Article III standing. Bank ofAm. Corp. R City of
Miami, Fla., 137 5. Ct. 1296, 1307—08 (2017). As to what was formerly termed the
“zone of interests” component of prudential standing, the substantive and standing
analyses merge. See Lexmark Int’l, Inc. a Static Control Components, Inc., 134 S. Ct.
1377, 1387 (2014) (framing the zone-of-interests test as asking whether a particular
plaintiff “falls within the class of plaintiffs” authorized to sue under a particular law).
Here, the Commissioner argues that the plaintiff has not stated a cause of action
under the relevant statutes, but also more narrowly that even if she had, the DCA is
not the party responsible for her claimed injury.

7

11

of “race, color, religion, sex, handicap, familial status, or national
a dwelling,” § 3604(a); discriminate
origin”: “refuse to sell or rent
in the “terms, conditions, or privileges of sale or rental of a
dwelling, or in the provision of services or facilities in connection
any notice,
therewith,” § 3604(b); “make, print, or publish
statement, or advertisement, with respect to the sale or rental of a
dwelling that indicates any preference, limitation, or
that any
discrimination,” § 3604(c); “represent to any person
dwelling is not available for inspection, sale, or rental when such
dwelling is in fact so available,” § 3604(d); “induce any person to
sell or rent any dwelling by representations regarding the entry or
prospective entry into the neighborhood of a person or persons of”
certain characteristics, § 3604(e); or discriminate in the provision
of real estate or brokerage services, § 3605, 3606.
...

...

...

Bank of Am. Corp. z2’. City of Miami, Fla., 137 S. Ct. 1296, 1308—09 (2017). See
also Schildknecht

i’.

Township of Montclair, Civ. No. 13-7228, 2014 WL 835790

(D.N.J. March 4, 2014); Easthampton Ctr. u. Township of Easthampton, 155 F.
Supp. 2d 102, 110 (D.N.J. 2001). A plaintiff need not necessarily be a member
of the protected class. See Id. at 114 (citing 42 U.S.C.

§

3602; Gladstone

Realtors v. Village of Bellwood, 441 U.S. 91, 103 n.9 (1979)). Such a plaintiff
must still be “aggrieved,” however, in the sense of suffering an injury traceable
to the defendant’s violation of the FHA. No such connection is drawn by the
factual submissions of the plaintiffs.
The plaintiffs have attempted to attribute the closure of their Property to
the DCA’s (allegedly invalid) exercise of regulatory’ authority over rooming
houses. The Notice of Imminent Hazard and Order to Vacate, however, were
issued by the City of Garfield, not the DCA. (DSOF

¶31

8, 9) The City was

authorized to do so by its municipal Code. The Code empowers the local fire
department and fire safety official to enforce the Uniform Fire Safety Act and
New Jersey Uniform Fire Code within the City of Garfield. See City of Garfield,
N.J. Code

§

142-1, 142-2. The Code also “establishe[sj in the City of Garfield a

State Uniform Construction Code enforcing agency to be known as
“Department of Inspections,’ consisting of a Construction Official
Subcode Official.” Id.

§

.

.

.

[and] Fire

114-1(A). The Notice of Imminent Hazard and Order to
12

Vacate state explicitly that the issuing authority is the City of Garfield, and
that the tenants shall vacate because the Property contains imminent hazards.
(DSOF ¶j 8, 9)
There is no doubt about what those imminent hazards were; they are
listed in the Notice. They include the following:
•

Lack of smoke detectors in second and third floor dwelling units

•

Front stairway and hallway off front porch obstructed

•

Bedrooms and door going to second floor had prohibited surface locks

•

Lack of second means of egress from certain areas

•

Non-rated doors in bedrooms and corridors of second and third floor

•

No sprinkler system8

•

Other precautions against fire spreading needed in porch and basement.

(DSOF

¶ 9 & Ex. C)9 Those conditions were the basis of an order by the City of

Garfield—not DCA—that the Property be vacated. The Order to Close and
Notice to Vacate were signed and issued by the relevant City of Garfield
Construction Official and Fire Official. (See Def. Exs. C & D, ECF no. 164-3)
The plaintiffs dispute the DCA’s determination that the property was
unlicensed, but defucto a rooming house. That determination was factually
supported and upheld by the State appellate court, as discussed in section
TII.C, infra. But even if incorrect, that determination was not the basis for
closing the Property or evicting the occupants.
In an attempt to attribute the closure to the DCA, the plaintiffs have

As to this particular violation, DCA concedes that f the Property had been an
ordinary dwelling, and not a rooming house, it would not have been required to have a
sprinkler system. For the reasons discussed in the following section, however, it was
properly designated a rooming house. And in any event, DCA can and does concede
the point arguendo, because the remaining conditions were more than sufficient to
justify the City of Garfield’s action.
On September 14, 2010, when the Notices were issued by the City of Garfield, a
municipal complaint was also filed against Heine based on excessive garbage and
rubbish on the property. (DSOF ¶ 6) A Summary Report issued by DCA alter the joint
inspection also related that the tenants stated that the Property was “infested by bed
bugs.” (DSOF ¶ 6)
13

made conclusory allegations of an oversight, agency, or other relationship
between DCA and the City of Garfield. They have not produced any evidence,
however, that DCA or its Commissioner, either by implementation of a policy or
by direct action, brought about the City’s closure of the Property in violation of

§ 1983 or the FHA.
The plaintiffs generally cite the DCA’s statutory authority to enforce the
Uniform Fire Safety Act (UFSA). See N.J. Stat. Ann.

§ 52:27D-202(a), 203(a).

DCA accepts that the State has concurrent enforcement authority as to all
buildings, “other than owner-occupied building used exclusively for dwelling
purposes and containing fewer than three dwelling units.” N.J. Stat. Ann.

§

52:27D-204(a), The argument is inconsequential, however. While the state may
step in and exercise authority subject to certain procedures, see N.J. Stat. Ann.

§ 52:27D-204(b), it did not do so in connection with the Notice of Imminent
Hazard and Order to Vacate, which were issued by the City of Garfield.’°
The plaintiff points out that the DCA and the City of Garfield performed a
joint inspection of the property pursuant to a state court injunction. (DSOF
¶4)11

Still, the evidence in the summary judgment record is undisputed that

the imminent hazards listed in the Notice were the basis for the simultaneous
Order to Vacate, which was issued by the City, not DCA.
It follows that the plaintiffs have no claim against DCA based on the
Order to Vacate or their eviction from the Property.
C. In Any Event, the Property was Properly Designated as a
Rooming House on a Nondiscriminatory Basis by DCA

In the alternative, however, I consider the plaintiffs’ argument that DCA

If the DCA had ordered the premises to be vacated, the paper trail would look
different. An Order would have issued pursuant to the authority of the
very
Commissioner, with copies sent to relevant county and municipal officials. See N.J.
Stat. Ann. § 55:13B-11(a). That did not occur.
11
On January 22, 2010, Judge Ellen Koblitz, then P.J. Ch., ordered that Heine be
“enjoined from interfering, preventing, obstructing, or otherwise delaying access to or
by any authorized State or local fire, inspection,
inspection of [the Propertyj
(DSOF ¶ 4)
building or code official.”
10

.

.

.

14

improperly asserted its authority to regulate the Property as a “rooming house.”
To be clear, the Property was not closed down for violations pertaining to its
status as a rooming house as such. See supra. The evidence is uncontradicted
that the City closed down the Property and that the DCA’s citation of rooming
house violations led only to a $5000 penalty, a circumstance irrelevant to these
claims for prospective injunctive relief.
The DCA’s authority to regulate rooming houses derives from the
Rooming and Boarding House Act (“RBHA”), N.J. Stat. Ann.

§ 55: 13b-1

et seq..

A rooming house is one “which contains two or more units of dwelling space
arranged or intended for single room occupancy.” N.J. Stat. Ann.

§ 55: 13b-3(a),

(h). A “unit of dwelling space” is defined in turn as “any room, rooms, suite, or
portion thereof, whether furnished or unfurnished which is occupied or
intended, arranged or designed to be occupied for sleeping or dwelling
purposes by one or more persons.” N.J. Stat. Ann.

§ 55:13b-3(j).’2

On September 17, 2010, following an inspection of the Property, the
Commissioner notified Heine that she was running a rooming house in
violation of the RBHA and was liable for a civil penalty. In August 2011, the
Commissioner issued a final decision that Heine was operating an illegal
rooming house which she had created by converting a former three-family
home and adding bedrooms.’3 (DSOF

¶ 15) The decision of AW Barry E.

A boarding house is defined as “any building, together with any related
structure, accessory building, any land appurtenant thereto, and any part thereof,
which contains two or more units of dwelling space arranged or intended for single
room occupancy, exclusive of any such unit occupied by an owner or operator.” N.J.
Stat. Ann. § 55:13B-3(a).
The DCA is authorized to inspect both rooming and boarding houses to ensure
health, safety, and welfare of the persons living there. N.J. Stat. Ann. § 55:13B-2,
the
138-6, 138-15.
13
In response to the summary judgment motion, the plaintiffs argue that if this
were truly a rooming house, then the City’s property tax records (listing it as a twofamily home) should have been changed. (P1. Opp. Br. 6, ECF no. 166) Any inaccuracy
in the property tax records may have resulted from the authorities’ failure to observe
the apparently illegal conversion of the building. At any rate, as regards the DCA’s
regulatory authority, the City’s failure to amend property tax records is irrelevant.
12

15

Moscowitz, dated July 11, 2011, is attached to the Commissioner’s summary
judgment papers. (DSOF

¶ 14 & Ex. F, ECF no. 164-3 at 32)

Judge Moscowitz, after conducting a hearing, rendered findings of fact
and conclusions of law. In finding that the Property was a rooming house, he
considered many factors. The Property had seven rooming units. 4 The rooms
of Kara and Christopher Grieco, Anthony and Louis Pizzi, and DeMarco were
furnished and arranged for single occupancy. At least some units had
padlocked doors. They were not offered for a limited tenure only. The rooms
had no independent cooking or sanitary facilities, and the second and third
floor contained a common bathroom and kitchen. (DSOF

¶ 14) Citing case law,

Judge Moscowitz further discussed factors such as communal bathrooms and
kitchens, security locks on individual rooming units, separate payment per
unit, and different occupancy dates. Heine, as owner, collected rent, made
certain rules about occupancy, and posted a sign that no one should admit any
official, police officer, or member of the Gilbert family,’5 without her
permission. She was deemed to be the operator of a rooming house under N.J.
Stat. Ann.

§ 55:138-10(a). A civil penalty of $5000 was assessed based on

multiple violations, overlapping the earlier health and safety violations found
by the City.
The Superior Court of New Jersey, Appellate Division, upheld the AJJ’s
decision in an unpublished decision. (Heine v. Dep’t of Cmty. Affairs, Docket
No. A-2113-11, 2013 WL 175991 (App. Div. April 25, 2013), certif denied, 217
N.J. 52 (2014). Copy at Ex. G, ECF no. 164-3 at 47)) Endorsing the reasoning
A “rooming unit” is defined in the regulations as “a unit of dwelling space
forming a single habitable unit used or intended to be used for living and sleeping, but
not for cooking or eating purposes.” N.J.A.C. 5:27-2.1.
15
The original mortgagor and prior owner of the Property was a Dr. Gilbert. A
number of machinations culminated in a State court order awarding Heine tide to the
Property provided that she satisfied Gilbert’s $46,000 mortgage, and granting her the
option either to assume and discharge the mortgage or else to sell the property. When
she failed to do either, the court entered an order compelling her to sell the property,
which she has not done. See Gilbert u. Heine, No. A-0145-14T4, 2017 WL 370904 (N.J.
Super. Ct. App. Div. Jan. 25, 2017).
16

of the ALT, the Appellate Division rejected Ms. Heine’s argument that the
evidence was defective, that the Property did not meet the physical description
of a rooming house, and that the DCA had overstepped its authority. The
Appellate Division also considered Heine’s contentions that the DCA’s actions
were discriminatory in rooming house matters, that the standard for unrelated
single people is discriminatory, and that the actions of the DCA violated due
process and property rights. It rejected those contentions without further
discussion because they lacked sufficient merit.
It is thus res judicata that the Property was correctly deemed a rooming
house based on its physical and other characteristics, on a non-discriminatory
basis. Even viewing the evidence afresh, no other conclusion is possible. So
even if the DCA had ordered the Property closed down and the occupants
evicted—which it did not—its actions could not be attacked on the basis of the
Property’s not properly being subject to regulation as a rooming house.
D. Other Issues
For the reasons stated above, DCA’s motion for summary judgment must
be granted. In the alternative, however, my review of the record reveals other
grounds that would suffice.
1. Res judicata as to
The underlying

§ 1983 and FHA claims

§ 1983 and FHA claims are themselves barred by res

judicata.
Federal claim preclusion requires (a) a final judgment on the merits in a
prior suit involving (b) the same parties or their privies and (c) a subsequent
suit based on the same causes of action. United States z’. Athione Indus., Inc.,
746 F.2d 977, 983 (3d Cir. 1984) (citing Parkiane Hosiery Co. v. Shore, 439 U.S.
322, 326 n. 5, 99 S. Ct. 645, 649 n. 5 (1979)). Federal issue preclusion
requires (a) that the issue be identical to an issue previously adjudicated; (b)
that the issue have been actually litigated; (c) that the determination of the
issue was necessary to the prior judgment; and (d) that the party against whom
preclusion is now asserted had a full and fair opportunity to litigate the issue.

17

Henglein zc Colt Indus., 260 F.3d 201, 209 (3d Cir. 2001).
Judge Salas’s decision in the 8201 Action, summarized at pp. 4—6, supra,
was a final judgment on the merits which dismissed the plaintiffs’ claims with
prejudice. Heine u. Dir. of Codes & Standards, Civ. No. 15-82 10, 2017 WL
3981135 (D.N.J. Sept. 11, 2017) (Copy at Ex. H, ECF no. 164-3 at 50) (the
“8210 Action”). The plaintiffs in that action included Heine and most or all of
the plaintiffs here, and the defendants included the Commissioner of DCA. The
complaint in the 8210 Action, as Judge Salas found, encompassed claims (a)
that DCA exercised inadequate oversight as to the municipalities’ code
enforcement activities; and (b) that it violated the Constitution by the manner
in which it enforced, or promulgated regulations under, the Rooming and
Boarding House Act of 1979, the Uniform Construction Code, and the Uniform
Fire Code. Judge Salas held that those claims had already been decided in
DCA’s favor and against the plaintiffs, including Heine. Those final judgments
specifically related to properties located in the

towns

of

Montclair and New

Brunswick. As to the statewide policies of the DCA, however, Judge Salas
explicitly or impliedly held that the issues pertaining to Garfield were the same.
In the alternative, with respect to the Garfield Property in particular, Judge
Salas held that the plaintiffs’ assertions of improper assertion of authority to
regulate rooming houses, discrimination based on family status, and the like,
failed to state a claim because, inter alia, plaintiff did not link them factually to
any illegal or unconstitutional action of DCA.
Also relevant is the prior decision of the New Jersey Superior Court,
Appellate Division, in Heine v. Dep’t of Cmty. Affairs, Docket No. A-2 113-11,
2013 WL 1759919 (App. Div. April 25, 2013), certzf denied, 217 N.J. 52 (2014).
Copy at Ex. G, ECF no. 164-3 at 47) In that decision, discussed at pp. 2—3 &
15—17, supra, the Appellate Division rejected Heine’s contentions that the DCA
had overstepped its authority, that the DCA’s actions were discriminatory in
rooming house matters, that the regulations discriminate against unrelated

18

single people, and that the DCA violated due process and property rights.’6
Resjudicata as to the merits of the

§ 1983 and FHA claims, then, would

furnish an alternative basis for an award of summary judgment.
2. Failure to establish

§ 1983 and FRA claims

Lurking behind all of the foregoing is a simple failure to adduce sufficient
evidence in support of the underlying claims under FHA and

§ 1983.

The requisites of a typical FHA claim have been usefully summarized as
follows:
A plaintiff states a prima fade case of discrimination under
the FHA by showing either intentional disparate treatment or
disparate impact. United States a Branella, 972 F. Supp. 294, 298
(D.N.J. 1997). A plaintiff can show discriminatory intent through
direct or indirect evidence. Id. In the absence of direct evidence,
however, the Court must apply the burden shifting approach set
forth in McDonnell Douglas Corp. v. Green, which describes the
proper framework for evaluating an intentional disparate treatment
claim under Title VII of the Civil Rights Act (“Title VII”). Id. (citing
McDonnell Douglas Coip., 421 U.s. 792, 802 (1973)). Under this
approach, the plaintiff must demonstrate that (1) he or she is a
member of a protected class, (2) he or she applied for and was
qualified to rent a particular unit, (3) he or she was rejected or
otherwise treated adversely, and (4) the unit remained available
after the rejection or adverse treatment. See Branella, 972 F. Supp.
at 299 n. 7. “Sufficient evidence with respect to these factors raises
a rebuttable presumption of discriminatory intent and shifts the
burden to the defendant, who must articulate a legitimate non
discriminatory reason for rejecting the prospective tenants.” Id. If
As to the State court litigation, actual adjudication of the same claims and
issues would not technically have been required. State res judicata law governs the
preclusive effect of a state judgment in federal court. See Greenleaf v. Garlock, Inc.,
174 F.3d 352, 357 (3d Cir. 1999); Allen v. McCurry, 449 U.S. 90, 96 (1980). New
Jersey claim and issue preclusion law is similar to federal law. See Watkins v. Resorts
Intl Hotel and Casino, Inc., 124 N.J. 398, 412 (1991) Twp. OfMiddletown v. Simon, 193
N.J. 228, 236 (2008). New Jersey, however, has a somewhat broader resjudicata
doctrine known as the entire controversy rule. The entire controversy rule emphasizes,
not just claims within the scope of the prior judgment, but all claims and parties that
a party could have joined in a prior case based on the same transaction or occurrence.
Rycoline Prods., Inc. v. C & W Unlimited, 109 F.3d 883, 885 (3d Cir. 1997) (quoting
Circle Chevrolet Co. v. Giordano, Halleran & Ciesla, 142 N.J. 280 (1995)).
16

19

the defendant proffers such a non-discriminatory reason, the
burden shifts back to the plaintiff to offer some evidence indicating
that the defendant’s reason was actually a pretext. Id.
Ewing Citizens for Civil Rights, Inc. v. Twp. of Ewing, Civ. No. 05-1620 MLC,
2007 WL 2065832, at *4 (D.N.J. July 13, 2007).
The plaintiffs’ FHA arguments, which cite the changing contours of
family life, have always been vague. Read very generously, they seem to start
from the premise that rooming houses (with their smaller, single-roomoccupancy units) would tend to attract the unmarried, or smaller families. (No
evidence is offered as to the extent to which that is true.) The idea, at any rate,
seems to be that by imposing fire safety and other requirements on rooming
houses (as defined by State law), the DCA is somehow discriminating against
certain family configurations: for example, people living alone, or unrelated
persons in nontraditional families.’7 The “familial status” that is a protected
category under the FHA, however, is that of having one or more individuals
under the age of 18 domiciled with a parent or guardian.’8 Even in such cases,
however, policies of general application that only indirectly impact family
status will be upheld. See, e.g., Mountain Side Mobile Estates P’ship v. Secy of
Hous. & Urban Dcv., 56 F.3d 1243, 1251 (10th Cir. 1995) (discussing threeperson occupancy limit, but upholding finding that it did not violate PHA); Fair

According to Heine, one of the occupants, Chris Grieco, was accompanied by
his “three children and extended family.” (ECF no. 166 at 8 ¶ 5) Other units
apparently housed single individuals.
IS
(k) “Familial status” means one or more individuals (who have not attained the
age of 18 years) being domiciled with—
(1) a parent or another person having legal custody of such individual or
individuals; or
(2) the designee of such parent or other person having such custody, with
the written permission of such parent or other person.
The protections afforded against discrimination on the basis of familial status
shall apply to any person who is pregnant or is in the process of securing legal
custody of any individual who has not attained the age of 18 years
17

42 U.S.C.

§ 3602(k).
20

Housing Advocates Ass’n, Inc. v. City of Richmond Heights, Ohio, 209 F.3d 626
(6th Cir. 2000). FHA claims found to be viable have typically involved facially
family-averse policies, such as an apartment building’s express refusal to rent
upper-floor apartments to families with children. See United States v. Garden
Homes Management Corp., 156 F. Supp. 2d 413, 423—26 (D.N.J. 2001). There is
no such policy here; moreover, the only “discriminatory” action alleged is
protection from fire and unsanitary conditions.
The justification for health, safety, and fire regulations here, whether
state or local, is obvious, and it is neutral as to family status. The concerns of
the RBHA have nothing to do with the family arrangements of the building’s
occupants.’9 The actions taken against the Garfield Property in this case—to
the extent attributable to the DCA at all, see supra—were taken for non
discriminatory health and safety reasons, as demonstrated by uncontradicted
record evidence. The cited violations (lack of smoke detectors, obstructed exits,
locked units, etc.) would not fall more heavily on families with children than on
others. Indeed, no particular impact on families, disparate or otherwise,
appears in the record—except perhaps in the trivial sense that families, just
like single persons, may have to be relocated from properties found to be
unsafe. These are not class-specific restrictions that “did not apply to those
necessary to provide for the health, safety
The RBHA is “remedial legislation
reside in rooming and boarding houses in this State.”
and welfare of all those who
N.J.S.A. 55:138-2. Regulations promulgated under the Act ensure “the protection and
care of the residents of rooming houses, boarding houses and residential health care
facilities[.]” Id. The Act’s enactment was “prompted by ‘a number of boarding home
to the
fires which resulted in fatalities, and [which attracted] public attention
of Rooming &
conditions that existed in these facilities.” MJct. St. Mission v. Bureau
Boarding House Standards, 110 N.J. 335, 341 (citation omitted), appeal dismissed,
488 U.S. 882 (1988); see N.J.S.A. 55:138-1 to -21. The state legislature found that the
residents of such facilities were “predominantly elderly, disabled and poor, many of
whom need social, personal and financial services, protection from building hazards
and protection from unscrupulous and predatory neighbors.” N.J.S.A. 55:138-2; see
Salvation Army v. Dep’t of Cmty. Affairs, 919 F.2d 183, 186 (3d Cir. 1990) (noting that
the Act “goes far beyond this initial motivation to ensure fire safety and safeguard the
health of the residents; in the course of examining the problem, the legislature learned
that residents of rooming and boarding houses are frequently exploited by the
operators of the facilities in a number of ways.”).
...

.

21

.

.

outside the protected classes.” Cudo a A Country Place Condominium Ass’n,
Inc., Civ. No. 16-5928, 2018 WL 638749 (D.N.J. Jan. 31, 2018) (rejecting
challenge to sex-segregated hours for swimming pooi in apartment complex).
And the only “exclusion” is the closing down of buildings unfit for habitation by
anyone, married or single. The plaintiffs fail to allege, let alone prove, how
anything about this enforcement related to the occupants’ family status.
The

§

1983 claim is, if anything, flimsier. Based on the same allegations,

it simply posits violations of the “rights of individuals” and lists a number of
constitutional provisions. (E.g., 7AC

¶

12) No specific claim of violation of a

particular constitutional provision is specified. The “discrimination” alleged
seems to revolve around evolving family standards, but no recognized claim is
stated. And even these vague claims are not specifically tied to the family
status of any occupant of the Property.2° As Judge Salas found in relation to
the earlier, similar claims, the plaintiff asserts generalized grievances about the
running of government, untethered to specific claims of constitutional
violations and a resulting cognizable, concrete injury. See 8210 Action, Slip Op.
at 27 (citing, inter alia, FaMes, 2015 WL 5167153 at *6).
For these alternative reasons, then, summary judgment would be
appropriate even if this action surmounted the threshold bar of resjudicata.
CONCLUSION

For the reasons stated above, the Commissioner’s motion for summary
judgment (ECF No. 164) is GRANTED. A separate order will issue.
Dated: September 18, 2018

/cL_//c(1J—
KEVIN MCNUL
United States District Judge

In referring to unrelated individuals living together, Heine may be echoing the
U.S. Supreme Court case of Village of Belle Terre u. Boraas, 416 U.S. 1(1974). That
case, however, rejected a challenge to a local zoning ordinance that limited the
number of unrelated individuals who could occupy a dwelling.

20

22