COWLES v. CITY OF ELIZABETH, N.J. et al

Filing 22

OPINION. Signed by Judge William J. Martini on 9/18/13. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:13-cv-03222 (WJM)

ROGER E. COWLES,
Plaintiff,

OPINION
v.
CITY OF ELIZABETH, N.J., a municipal
corporation, POLICE DEPARTMENT
FIREARMS LICENSING EMPLOYEE
LARON MURRAY in his individual capacity,
FORMER CHIEF OF POLICE RONALD P.
SIMON, in his individual capacity,
ELIZABETH MAYOR J. CHRISTIAN
BOLLWAGE in his individual capacity.
Defendants.

Pro se plaintiff Roger Cowles brings the instant Section 1983 suit alleging that his
Second, Fifth, and Fourteenth Amendment rights were violated when the City of
Elizabeth denied his application for a gun permit (the “Application”). The Defendants
are the City of Elizabeth, Officer Laron Murray, former Elizabeth Police Chief Ronald
Simon, and Elizabeth’s Mayor, Christian J. Bollwage. Mayor Bollwage alone moves
without opposition for summary judgment pursuant to Federal Rule of Civil Procedure
56, arguing that he had nothing to do with the denial of the Application. Nominally a
summary judgment motion, Mayor Bollwage’s motion is better understood as a motion
for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) because
it relies only on the Complaint and various statutes. There was no oral argument. Fed. R.
Civ. P. 78(b). For the reasons set forth below, the Court will GRANT Mayor Bollwage’s
motion.
The Complaint states as follows: Roger Cowles lives in Elizabeth, New Jersey.
Compl. ¶ 1, ECF No. 1. On February 4, 2011, Cowles applied for a Firearms Purchaser
Identification Card and Handgun Purchase Permit at the Elizabeth Police Department. Id.
¶ 8. Cowles listed as references two New Jersey attorneys. Id. ¶ 9. On April 14, 2011,
Officer Laron Murray told Cowles that his Application was incomplete because Cowles’s
references did not respond to inquiries from the Elizabeth Police Department. Id. ¶ 12.
Officer Murray said that unless Cowles’s references responded in two weeks, Cowles’s
Application would be terminated. Id. After meeting with Officer Murray, Cowles
emailed his references and learned that they had not been contacted by the Elizabeth
1

Police Department. Id. ¶ 13. On April 15, 2011, Cowles returned to the Elizabeth Police
Department and asked to speak with Officer Murray’s supervisor. Id. ¶ 14. An
unidentified officer said that Cowles’s application had not been processed because
Cowles’s references had not been contacted. Id. This contradicted what Officer Murray
had told Cowles. Roughly one month later, Cowles received a letter stating: “Your
application submitted to this department on 1/31/11 for a gun permit is Incomplete and
being terminated. It will be necessary for you to reapply in the future.” Id. ¶ 15. After
receiving this letter, Cowles spoke with his references, both of whom said they were
never contacted by the Elizabeth Police Department. Id. ¶ 16.
On May 22, 2013, Cowles filed a one count Complaint under 42 U.S.C. § 1983
asserting violations of his Second (and Fourteenth) Amendment right to “keep and bear
arms” and his Fifth (and Fourteenth) Amendment right to Due Process. The Complaint’s
fact section mentions Mayor Bollwage just once. It states: “[Police] Chief Ronald Simon
and other City of Elizabeth department heads are appointed by Mayor Christian Bollwage
and . . . Mayor Bollwage has ultimate administrative authority and responsibility.” Id. ¶
27. On July 11, 2013, Defendants filed an answer to the Complaint. ECF No. 8.
Though discovery has not yet begun, Mayor Bollwage moves without opposition
for summary judgment pursuant to Federal Rule of Civil Procedure 56. In support of his
motion, Mayor Bollwage relies on a “statement of uncontested facts.” Bollwage Br. at 12, ECF No. 18. Those facts are either (1) citations to the Complaint, or (2) citations to
New Jersey statutes that vest responsibility for the Elizabeth Police Department and its
regulations outside of the Mayor’s office. These are the sorts of facts courts routinely
consider on a motion for judgment on the pleadings. See Schott v. Doe, No. 5-1730,
2007 WL 539645, at *4 (W.D. Pa. Feb. 15, 2007). Accordingly, it appears that what
Mayor Bollwage labeled as a motion for summary judgment is actually a motion for
judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) (it is not a
Rule 12(b)(6) motion to dismiss because it was filed after Defendants answered the
Complaint). For this reason, the Court finds it appropriate to treat the instant motion as a
motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).
Mayor Bollwage argues that even if Cowles’s constitutional rights were violated,
Mayor Bollwage cannot be held liable for those violations because the Complaint does
not allege that Mayor Bollwage had any “personal involvement in the alleged wrongs.”
Bollwage Br. at 3 (quoting Rode v. Dellaciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).
Mayor Bollwage is correct. The Third Circuit has recognized that “[i]ndividual
defendants who are policymakers may be liable under § 1983 if it is shown that such
defendants, with deliberate indifference to the consequences, established and maintained
a policy, practice or custom which directly caused [the] constitutional harm.” A.M. ex
rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). Also,
“[a] supervisor may be personally liable under § 1983 if he or she participated in
violating the plaintiff’s rights, directed others to violate them, or, as the person in charge,
had knowledge of and acquiesced in his subordinates’ violations.” Id. Here, there is
absolutely no indication that Mayor Bollwage established a policy concerning gun permit
applications. Nor is there any indication that Mayor Bollwage knew about or participated
2

in the decision to deny the Application. Accordingly, the Court will DISMISS the
Complaint against Mayor Bollwage. As there is no suggestion that Cowles could amend
his Complaint to state a Section 1983 claim against Mayor Bollwage, the dismissal shall
operate WITH PREJUDICE. See In re NAHC Sec. Litig., 306 F.3d 1314, 1332 (3d Cir.
2002) (leave to replead properly denied on futility grounds). An appropriate order
follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: September 18, 2013

3