DANIELSON v. CHESTER TOWNSHIP et al

Filing 36

OPINION. Signed by Judge Jose L. Linares on 7/8/14. (jd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HAROLD DANIELSON,
Civil Action No. 13-5427 (JLL)
Plaintiff,
v.

OPINION

CHESTER TOWNSHIP THROUGH ITS
POLICE DEPARTMENT, et. al.,

Defendants.
LINARES, District Judge.
As it relates to the instant motion, this case involves allegations that the New Jersey
Highlands Water Protection and Planning Council (“Highlands Council”), and several of its
members, violated Plaintiff’s rights under, inter alia, the First Amendment of the United States
Constitution when councilmembers interrupted Plaintiff during his public comments at a council
meeting. Currently before the Court is a motion to dismiss Plaintiff’s Second Amended Complaint
filed by Defendants the Highlands Council, Chairman Jim Rilee and Councilmember Bruce James
(hereinafter “Council Defendants”) [Docket Entry No. 29].

The Court has considered the

submissions made in support of and in opposition to the instant motion. No oral argument was
heard. Fed. R. Civ. P. 78. Based on the reasons that follow, Defendants’ motion is granted in
part and denied in part.

1

BACKGROUND1
On August 3, 2011, Plaintiff sought to speak at a public meeting of the Highlands Council
(Sec. Am. Compl., ¶ 10). During a portion of the meeting set aside for public comments regarding
a proposed resolution on Transfer of Development Rights (“TDRs”), 2 Plaintiff approached the
podium to speak and was recognized by the chair, Defendant Jim Rilee. (Id., ¶ 13; 16). Plaintiff’s
comments were subject to a three-minute time limit. (Id., ¶ 12). According to the Second Amended
Complaint, Plaintiff intended to address Defendant Bruce James’s remark that “farmers” were
“worse polluters” than “Brown Fields.” 3 (Id., ¶ 14). According to the official minutes of the
meeting, “Mr. James had stated that agricultural lands can contain numerous contaminants and be
considered brownfields.” (Id., ¶ 18).
About twenty four (24) seconds into Plaintiff’s comments, Plaintiff was interrupted by
Defendant James and Defendant Rilee. (Id., ¶ 19). In particular, Defendant Rilee interrupted
Plaintiff by stating, “[t]his is about the TDR’s.” (Id., ¶ 21). Plaintiff attempted to continue, stating:
“I have a question for Mr. James who went after the farmers for polluting.” (Id., ¶ 22). Plaintiff
was then interrupted by Defendant James, who said: “I didn’t go after the farmers.” (Id.). Plaintiff
continued, stating: “You went after the farms. You said they were the biggest polluters. Why don’t
you get rid of the golf courses? They’re the biggest polluters and the biggest water users. You wipe

The following relevant facts are accepted as true for purposes of the instant motion. See
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
1

2

TDR is defined in the Second Amended Complaint as a device that permits property owners to
sell the rights to develop their land to others, thus restricting that land from further development;
the proposed resolution concerned a TDR Feasibility Grant for the Town of Hackettstown. (Sec.
Am. Compl., ¶ 16).
The Second Amended Complaint defines “brownfields” as abandoned or underused industrial
or commercial sites that are usually contaminated. (Id., ¶ 14).
3

2

them out and you wipe everything out.” (Id.). Defendant Rilee then joked that he “does not play
golf but played ‘miniature golf;’” the Director of the Highlands Council cackled at this comment.
(Id., ¶ 23). Plaintiff then stated, “I’m not done yet.” (Id., ¶ 24). Defendant Rilee responded, “[y]ou
are becoming adversarial toward the members,” to which Plaintiff replied: “No. I’m becoming
adversarial against the condition I was left in.” (Id.). Defendant Rilee then stated, “I can appreciate
that” and Plaintiff responded, “[n]o you can’t. You don’t appreciate it. You don’t know.” (Id.).
Defendant Rilee then told Plaintiff that “he was finished and to sit down.” (Id., ¶ 25). The Second
Amended Complaint goes on to allege that Defendant Rilee “twice asked Plaintiff to yield the floor
and to stop speaking.” (Id., ¶ 51). Plaintiff also alleges that Defendant James “told Plaintiff that
his comments were not on topic and that he should stop speaking and yield the floor.” (Id., ¶ 27).
When Plaintiff refused to “yield the floor,” he was arrested by at least three Chester Township
Police Officers. (Id., ¶ 19).
Based on “their prior communication about [Plaintiff],” there was “an understanding”
between Defendant Rilee and the Chester Township Police Officers present at the meeting “that
Plaintiff was to be watched, that Plaintiff had disrupted prior meetings of the Highlands Council,
and that Defendant Rilee would signal to the Chester Police Officers if he desired [Plaintiff] to be
removed from the meeting.” (Id., ¶ 26). One attendee observed the Chester Police Officers
watching to see who signed into the meeting’s log book. (Id.). According to the Prosecutor for
Chester Township, Brian W. Mason, Esq., “Mr. Danielson was arrested and charged based upon
information provided to . . . [the arresting officer] by the Chair.” (Id., ¶ 32). Further, no other
person who spoke during the comment periods, including those whose statements were critical of
the Council, was interrupted based on the subject matter of his or her statement. (Id., ¶ 55). One
attendee addressed Defendant James’ comment regarding brownfields without interruption, stating

3

that “he does not think Hackettstown has brownfields and to make a speculation is irresponsible.”
(Id., ¶ 28).
Plaintiff was subsequently charged in Chester Municipal Court with disrupting a public
meeting. (Id., ¶ 34).

In his November 9, 2011 correspondence to the Highlands Council,

Prosecutor Mason noted that “[u]ntil interrupted [Plaintiff] spoke on point. I fail to see why
[Plaintiff] was told that he was finished. Moreover, I fail to see a valid basis to prosecute [Plaintiff]
for disrupting the meeting.” (Id.). The charge filed against Plaintiff was ultimately dismissed. (Id.).
In light of the foregoing facts, Plaintiff initiated this matter on July 31, 2013 by filing a
Complaint in the Superior Court of New Jersey. Defendants removed this matter to this Court on
September 11, 2013. This Court’s jurisdiction is premised on 28 U.S.C. §§ 1331, 1367.
Count One of Plaintiff’s Second Amended Complaint alleges a claim of excessive force
pursuant to 42 U.S.C. § 1983 as against the Police Officer Defendants. Count Two contains a §
1983 claim against Councilmembers James and Rilee (hereinafter the Individual Council
Defendants), in their official capacities, based upon alleged violations of Plaintiff’s Fourteenth
Amendment right to equal protection and his First Amendment right to freedom of speech. Count
Three alleges a § 1983 Monell claim as against Defendant Chester Township. Count Four alleges
a § 1983 Monell claim as against the Highlands Council and the Individual Council Defendants.
Count Five alleges a violation of the New Jersey Civil Rights Act (“NJCRA”) as against all
Defendants. Count Six purports to assert a § 1983 and NJCRA claim against the Individual
Council Defendants in their individual capacities, based upon alleged violations of Plaintiff’s
Fourteenth Amendment right to equal protection and his First Amendment right to freedom of
speech.

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The Council Defendants have now filed a motion to dismiss Counts Two, Four, Five, and
Six of Plaintiff’s Second Amended Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6).

LEGAL STANDARD
For a complaint to survive dismissal, it “must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. In
determining the sufficiency of a complaint, the Court must accept all well-pleaded factual
allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving
party. See Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). But, “the tenet that
a court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678. Thus, legal conclusions draped in the guise of factual
allegations may not benefit from the presumption of truthfulness. Id.
Additionally, in evaluating a plaintiff’s claims, generally “a court looks only to the facts
alleged in the complaint and its attachments without reference to other parts of the record.” Jordan
v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). With this framework
in mind, the Court turns now to Defendants’ motion.

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DISCUSSION

A.

Count Two—§ 1983 Equal Protection and First Amendment Claims
Count Two contains two separate claims against the Individual Council Defendants, Bruce

James and Jim Rilee (in their official capacities), both of whom are alleged to have been
councilmembers present at the August 3, 2011 council meeting. In particular, Count Two alleges
a § 1983 claim against James and Rilee based upon their alleged violations of Plaintiff’s
Fourteenth Amendment right to equal protection and his First Amendment right to freedom of
speech.
The Court begins by noting that Defendants seek dismissal of both § 1983 claims as against
Defendant James on the basis that Councilmember James’ “total involvement as alleged in
Plaintiff’s Second Amended Complaint [was] to clarify in response to a question directed at him
by Plaintiff that he did not say the words attributed to him by Plaintiff.” (Def. Reply at 4). While
the Court agrees, as a general matter, that liability under § 1983 requires a “personal involvement”
in the deprivation of a constitutional right,4 the Second Amended Complaint alleges more than
Defendants suggest. The Second Amended Complaint alleges that Defendant James: (1) made a
statement that “farmers” were “worse polluters” than brownfields in the State of New Jersey, (2)
before Plaintiff’s time was up, he told Plaintiff to “stop speaking and yield the floor” after Plaintiff
stated “I have a question for Mr. James who went after the farmers for polluting,” and (3)
Defendant James did not interrupt any other speakers on the day in question, including those whose
statements were critical of the Council. (Sec. Am. Compl., ¶¶ 14, 22, 27, 55). Such allegations
allow the Court to draw the reasonable inference that Defendant James restricted Plaintiff’s speech

4

See, e.g., Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 76 (3d Cir. 2011).
6

on the basis of his viewpoint (concerning the famers), that Defendant James treated Plaintiff
differently from other speakers on the day in question (by asking him to stop speaking), and that
there was no rational basis for the difference in treatment (given that he spoke generally about the
topic at hand and during the allotted amount of time). In light of the foregoing, the Court finds
that Plaintiff has sufficiently alleged Defendant James’ personal involvement in the alleged
deprivation of his constitutional right(s).

1.

First Amendment Claim

As the Court held in its previous Opinion, the parties agree that the public portion of a
meeting of a governmental body, like the Highlands Council, is a limited public forum for First
Amendment purposes. See Galena v. Leone, 638 F.3d 186, 198 (3d Cir. 2011) (“Traditional public
forums include public streets, parks, and other public areas traditionally devoted to assembly and
debate . . . In contrast to traditional and designated public forums, a governmental entity creates a
limited public forum when it provides for ‘a forum that is limited to use by certain groups or
dedicated solely to the discussion of certain subjects.’ ”). The parties also agree that, in a limited
public forum, “to avoid infringing on First Amendment rights, the governmental regulation of
speech only need be viewpoint-neutral and ‘reasonable in light of the purpose served by the
forum[.]’ ” Id. (quoting Good News Club v. Milford Cent. Sch., 533 U.S. 98, 107 (2001)). Stated
differently, governmental entities which have established limited public forums “may impose
restrictions on speech that are reasonable and viewpoint-neutral.” Christian Legal Soc. Chapter of
the Univ. of California, Hastings College of the Law v. Martinez, 130 S. Ct. 2971, 2984 n. 11
(2010). Thus, in order to state a facially plausible First Amendment claim based upon the alleged
restrictions on speech imposed on him during the August 3, 2011 council meeting, Plaintiff must

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allege, inter alia, facts establishing that restrictions were imposed on his speech based upon his
viewpoint.

See, e.g., Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 279 (3d Cir. 2004)

(“Government facilities that are not committed to public communicative activity may regulate
speech by the general public so long as that regulation is reasonable and not based on opposition
to a particular viewpoint.”).
This Court noted, in its prior Opinion, that it was unclear whether Plaintiff was speaking
about the topic at hand—Transfer Development Rights (“TDR”)—at the time of the alleged
interruptions. See generally Rowe v. City of Cocoa, 358 F.3d 800, 803 (11th Cir. 2004) (per
curiam) (“As a limited public forum, a city council meeting is not open for endless public
commentary speech but instead is simply a limited platform to discuss the topic at hand.”). The
Second Amended Complaint now alleges that “Plaintiff attempted to speak about Defendant
James’ comment that he made just a few minutes earlier that compared farmland to brownfields,
but ultimately this was impossible because he was being interrupted first by Defendant James and
then by Defendant Rilee.” (Sec. Am. Compl., ¶¶ 21, 27). The Second Amended Complaint also
alleges that on November 9, 2011, the Prosecutor for Chester Township, Mr. Mason, wrote a letter
to the New Jersey Highlands Council wherein he stated, in relevant part, that “[f]rom the audio,
[Plaintiff] spoke less than three (3) minutes. Until interrupted he spoke on point.” (Id., ¶ 34). In
light of these allegations, Plaintiff has now alleged sufficient facts which allow this Court to draw
the reasonable inference, for purposes of this motion, that Plaintiff was generally speaking about
the topic at hand during the alleged interruptions by the Individual Council Defendants.
This Court also previously noted Defendants’ position that interrupting a speaker does not
constitute an unconstitutional restriction on speech in a limited public forum. The Second
Amended Complaint now alleges more than a mere interruption. In particular, the Second

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Amended Complaint now alleges that Defendant Rilee told him “he was finished and to sit down.”
(Id., ¶ 25). The Second Amended Complaint goes on to allege that Defendant Rilee “twice asked
Plaintiff to yield the floor and to stop speaking.” (Id., ¶ 51). It also alleges that Defendant James
“told Plaintiff that his comments were not on topic and that he should stop speaking and yield the
floor.” (Id., ¶ 27).
Thus, the Second Amended Complaint now alleges that: (1) Plaintiff attempted to speak
about the topic at hand—in particular, he wanted to express his disagreement with Defendant
James’ comment that farmers were worse polluters than brownfields, which was made in the
context of a discussion on TRDs, and (2) Both Rilee and James restricted Plaintiff’s speech in this
regard because he disagreed with their viewpoint. In light of these allegations, the Court finds that
Plaintiff has alleged sufficient facts which, if accepted as true, allow the Court to draw the
reasonable inference that Defendants Rilee and James are liable for the misconduct alleged—
namely, restricting Plaintiff’s speech on the basis of his viewpoint. Although the arguments raised
by the Individual Council Defendants are well taken, the standard on a motion to dismiss is not
whether Plaintiff's claim(s) will ultimately succeed or even the probability of their success; rather,
in order to state a claim for purposes of Rule 12(b)(6), Plaintiff must simply allege “enough fact
to raise a reasonable expectation that discovery will reveal evidence” in support of such claim(s).
Twombly, 550 U.S. at 556. Defendants do not claim that Plaintiff has failed to meet this pleading
standard or that they have failed to receive adequate notice of the nature of the First Amendment
claim being asserted against them; rather, Defendants urge the Court to test the actual merits of
Plaintiff's First Amendment claim at this time. This is inappropriate on a Rule 12(b)(6) motion,
particularly before the parties have had the benefit of discovery. See generally Iqbal, 556 U.S. at
678 (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

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as true, to ‘state a claim to relief that is plausible on its face.’ ”) (quoting Twombly, 550 U.S. at
570).
Thus, in light of the foregoing, the Court finds that Plaintiff has pled a facially plausible
First Amendment violation claim as against the Individual Council Defendants. See generally
Iqbal, 556 U.S. at 678 (“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.”) (citing Twombly, 550 U.S. at 556). Defendants’ motion to dismiss this aspect of Count
Two is denied.

2.

Equal Protection Claim

Turning now to Plaintiff’s Equal Protection claim against the same defendants, as
previously held, a plaintiff may state a claim for a violation of the Equal Protection clause under a
“class of one” theory when he “alleges that he has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment.” Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). To state a claim under the “class of one” theory,
a plaintiff must at least allege that: “(1) the defendant treated him differently from others similarly
situated; (2) the defendant did so intentionally; and (3) there was no rational basis for the difference
in treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006) (citation omitted).
“To survive rational basis review, a classification must be ‘rationally related to a legitimate
governmental objective.’ ” Cooper v. Menges, 541 Fed. Appx. 228, 233 (3d. Cir. 2013).
The Second Amended Complaint now alleges that, based on “their prior communication
about [Plaintiff],” there was “an understanding” between Defendant Rilee and the Chester
Township Police Officers present at the meeting “that Plaintiff was to be watched, that Plaintiff

10

had disrupted prior meetings of the Highlands Council, and that Defendant Rilee would signal to
the Chester Police Officers if he desired [Plaintiff] to be removed from the meeting.” (Sec. Am.
Compl., ¶ 26). It is further alleged that one attendee observed the Chester Police Officers watching
to see who signed into the meeting’s log book. (Id.). According to the Prosecutor for Chester
Township, Mr. Mason, “Mr. Danielson was arrested and charged based upon information provided
to . . . [the arresting officer] by the Chair.” (Id., ¶ 32). It is further alleged that no other person
who spoke during the comment periods, including those whose statements were critical of the
Council, was interrupted based on the subject matter of his or her statement. (Id., ¶ 55). In fact,
according to the Second Amended Complaint, one attendee addressed Defendant James’ comment
regarding brownfields without interruption, stating that “he does not think Hackettstown has
brownfields and to make a speculation is irresponsible.” (Id., ¶ 28).
Thus, the Second Amended Complaint now alleges the following facts relevant to this
claim: (1) Plaintiff attempted to address a comment made by Defendant James that farmers were
worse polluters than brownfields (which was, in turn, made by James in the context of a discussion
on TRDs); (2) Plaintiff was asked by both James and Rilee to sit down and/or to yield the floor;
(3) no other person who spoke during the comment periods, including those whose statements
were critical of the Council, was interrupted or asked to sit down; and (4) the reason Plaintiff was
treated differently—i.e., asked to “sit down”—had to do with prior communications between
Defendant Rilee and the Chester Township Police Officers concerning the Plaintiff. See, e.g., Sec.
Am. Compl., ¶¶ 26, 32. Based on these facts, the Court finds that Plaintiff has now pled a facially
plausible class of one equal protection claim as against the Individual Council Defendants. In
particular, Plaintiff has alleged sufficient facts which, if accepted as true, allow the Court to draw
the reasonable inference that Defendants Rilee and James are liable for the misconduct alleged—

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namely, that they intentionally treated Plaintiff differently from other speakers on the day in
question and that the difference in treatment had to do with some prior understanding between
Defendant Rilee and the Chester Police Officers vis-à-vis the Plaintiff. Although discovery may
ultimately reveal that any difference in treatment was rationally related to a legitimate
governmental objective, suffice it to say that Plaintiff has succeeded in stating a facially plausible
class of one equal protection claim against Defendants Rilee and James at this time.

B.

Count Four—Monell Claim Against Highlands Council and Individual Council
Members
Count Four purports to assert a § 1983 Monell claim against the Highlands Council based

on the following facts: “Defendant Highlands Council, through Chairman Jim Rilee, developed
and maintained policies and customs exhibiting deliberate indifference to the Constitutional Rights
of Plaintiff.” (Am. Compl., ¶ 41). In particular, Count Four alleges that “as the Chairman of the
Highlands Council, Defendant Rilee is responsible for regulating Highlands Council meetings. He
is the highest and sole policy maker with respect to regulating Highlands Council meetings. On
August 3, 2011, Defendant Rilee both interrupted Plaintiff based on his speech and permitted
Defendant James to interrupt Plaintiff based on Plaintiff’s speech.” (Id., ¶ 42).
Generally, municipalities or other local government units may incur liability under § 1983
only when its policy or custom causes a particular constitutional violation. See Monell, 436 U.S.
at 694. “An official with policymaking authority can create official policy, even by rendering a
single decision.” McGreevy v. Stroup, 413 F.3d 359, 367-368 (3d Cir. 2005). When a single
decision is the basis of the alleged constitutional violation, however, “municipal liability under §
1983 attaches where—and only where—a deliberate choice to follow a course of action is made
from among various alternatives by the official or officials responsible for establishing final policy
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with respect to the subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483–
484 (1986). “Municipal liability attaches only where the decisionmaker possesses final authority
to establish municipal policy with respect to the action ordered.” Id. at 481-482.
The Court finds that Count Four, as currently pled, is still deficient for various reasons.
First, as this Court has previously held, Monell liability can only be imposed on a municipality.
See Langford v. City of Atl. City, 235 F.3d 845, 847 (3d Cir. 2000) (“The Supreme Court in Monell
held that a municipality can be held liable as a person under section 1983 when it unconstitutionally
implements or enforces ‘a policy statement, ordinance, regulation, or decision officially adopted
and promulgated by’ the officers of that municipality”); see generally Bd. of County Comm’rs of
Bryan County, Okl. v. Brown, 520 U.S. 397, 417 (1997) (“In assigning municipal liability under
Monell, we accordingly distinguish an act of a municipal agent without independent authority to
establish policy from the act of one authorized to set policy under local law.”). Plaintiff already
asserts § 1983 claims against the Individual Council Defendants—in their official and individual
capacities—for their alleged role in the deprivation of his constitutional rights. See generally
Counts Two and Six of the Second Amended Complaint. On this basis, Plaintiff’s Monell claim
was previously dismissed, with prejudice (as duplicative) as to the Individual Council Defendants.
This Court’s prior decision is now law of the case; thus, Count Four of Plaintiff’s Second Amended
Complaint is dismissed with prejudice as to the Individual Council Defendants.
To the extent this claim is asserted against the Highlands Council, it continues to be
deficient. In particular, this Court previously dismissed this claim on the basis that Plaintiff’s
complaint failed to allege any particular policy or custom that was actually adopted and
promulgated by the Highlands Council.

Count Four continues to allege the existence of

unspecified “policies and customs exhibiting deliberate indifference to the Constitutional Rights

13

of Plaintiff.” (Sec. Am. Compl., ¶ 61). As the Court has previously stated, this statement is entirely
conclusory and thus does not benefit from the presumption of truth. See generally Iqbal, 556 U.S.
at 679 (“[A] court considering a motion to dismiss can choose to begin by identifying pleadings
that, because they are no more than conclusions, are not entitled to the assumption of truth”).
Having carefully considered the arguments raised in support of and in opposition to
dismissal of this claim, the Court notes that Plaintiff has not made any material changes to this
claim, despite the deficiencies pointed out by the Court in its two prior Opinions. The crux of this
claim is that Defendant Rilee is the “highest and sole policy maker with respect to the Highlands
Council” and that he interrupted Plaintiff during his public comment at an August 3, 2011 meeting.
(Am. Compl., ¶ 62). As this Court has previously held, although it is true that “municipal liability
may be imposed for a single decision by municipal policymakers under appropriate
circumstances,” “not every decision by municipal officers automatically subjects the municipality
to § 1983 liability. Municipal liability attaches only where the decisionmaker possesses final
authority to establish municipal policy with respect to the action ordered.” Pembaur, 475 U.S. at
481-482. Count Four does not specify—much less with sufficient factual support—“the action
ordered” or official policy created by Defendant Rilee, from among various alternatives. Id.;
McGreevy, 413 F.3d at 367-368. Again, at most, the Second Amended Complaint alleges that
Defendant Rilee: (1) was the Chairman of the Highlands Council, (2) was, by virtue of his position,
in charge of presiding over the August 3, 2011 public meeting of the Highlands Council, and (3)
interrupted Plaintiff two to three times during the course of his three minute comment and
ultimately asked him to stop speaking and/or to yield the floor because he disagreed with James’
statement that farmers were worse polluters than brownfields. These are the same allegations that
form the basis of Plaintiff’s first amendment claim against Defendant Rilee, as discussed above.

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Even assuming, arguendo, that the Second Amended Complaint could be construed as alleging
that Defendant Rilee possessed certain discretion in overseeing the meeting by virtue of his
position as Chairman, “[t]he fact that a particular official—even a policymaking official—has
discretion in the exercise of particular functions does not, without more, give rise to municipal
liability based on an exercise of that discretion.” Pembaur, 475 U.S. at 481-482. Count Four fails
to pass this threshold. Defendant’s motion to dismiss Count Four is granted. Because the Court
has already given Plaintiff two opportunities to cure the pleading deficiencies in this claim, this
claim is now dismissed with prejudice.

C.

Count Five—Violation of the New Jersey Civil Rights Act
In addition to bringing claims pursuant to § 1983, Plaintiff also brings a claim under the

New Jersey State Constitution through the New Jersey Civil Rights Act (“NJCRA”), N.J.S.A.
10:6–2, in Count Five of his Second Amended Complaint. A person may bring a civil action under
the NJCRA in two circumstances: “(1) when he’s deprived of a right, or (2) when his rights are
interfered with by threats, intimidation, coercion or force.” Felicioni v. Admin. Office of Courts,
404 N.J. Super. 382, 400, 961 A.2d 1207 (App. Div. 2008). The NJCRA was modeled after §
1983, and thus courts in New Jersey have generally looked at claims under the NJCRA “through
the lens of § 1983.” Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443–44 (D.N.J. 2011); see
also Chapman v. New Jersey, No. 08–4130, 2009 WL 2634888, *3 (D.N.J. Aug. 25, 2009)
(“Courts have repeatedly construed the NJCRA in terms nearly identical to its federal
counterpart....”); Armstrong v. Sherman, No. 09–716, 2010 WL 2483911, *5 (D.N.J. June 4, 2010)
(“[T]he New Jersey Civil Rights Act is a kind of analog to section 1983 ....”); see generally Hedges

15

v. Musco, 204 F.3d 109, 121 n. 12 (3d Cir. 2000) (concluding that New Jersey’s constitutional
provisions concerning search and seizures are interpreted analogously to the Fourth Amendment).
As to the Council Defendants, there is no dispute that Plaintiff’s NJCRA claim (Count
Five) and § 1983 claim(s) (Count Two and Four) are based on the same underlying facts and
theories. See Sec. Am. Compl., ¶ 65 (incorporating facts from Count Two and Four into Count
Five). Having concluded that the Second Amended Complaint states a viable First Amendment
and equal protection claim as against Defendants Rilee and James, Count Five may proceed as to
these Defendants under the same theory, for the reasons discussed above. Having concluded that
the Second Amended Complaint fails to state a viable Monell claim against the Highlands Council,
Count Five is dismissed with prejudice as to the Highlands Council, for the reasons discussed
above.
Defendants’ motion to dismiss Count Five is therefore granted in part and denied in part.
Count Five is dismissed with prejudice as to the Highlands Council. Count Five may proceed as
to Defendants Rilee and James (based upon their alleged violations of Plaintiff’s First Amendment
and equal protection rights).

D.

Count Six -- § 1983 and NJCRA Claims Against James and Rilee Individually
The Council Defendants move to dismiss this claim on the basis that James and Rilee are

entitled to qualified immunity for their actions.
Qualified immunity shields government officials “from liability for civil damages insofar
as their conduct does not violate clearly established ... constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “For qualified
immunity to attach, an official must demonstrate his conduct was objectively reasonable.” Id. at

16

818–19. Qualified immunity is unavailable to a defendant government official if plaintiff's
complaint meets two prongs: (1) the facts alleged by plaintiff show the violation of a constitutional
right; and (2) the plaintiff's constitutional right was clearly established at the time of the violation.
Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part on other grounds by Pearson v.
Callahan, 555 U.S. 223 (2009) (“If no constitutional right would have been violated were the
allegations established, there is no necessity for further inquiries concerning qualified immunity.”);
George v. Rehiel, 738 F.3d 562, 572 (3d Cir. 2013).
As discussed above, Plaintiff has sufficiently alleged facially plausible § 1983 claims
against Defendants Rilee and James in their official capacities—that is, Plaintiff has sufficiently
alleged that Defendants Rilee and/or James violated Plaintiff’s Fourteenth Amendment right to
equal protection and his First Amendment right to freedom of speech.

The Court must next

determine whether the constitutional rights at issue were clearly established at the time of the
alleged violation. For a right to be clearly established for the purposes of qualified immunity,
“‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand
that what he is doing violates that right.’ ” Wilson v. Layne, 526 U.S. 603, 615 (1999) (quotations
omitted); see also Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012) (“[T]o overcome the assertion
of qualified immunity at the motion to dismiss stage, a plaintiff must sufficiently plead not only a
violation of a constitutional or statutory right, but also a violation of a clearly established one.”).
“In considering whether qualified immunity applies, a court must [view the facts] . . . in the light
most favorable to the plaintiff.” Couden v. Duffy, 446 F.3d 483, 492 (3d Cir. 2006).
As a general matter, it is—and was on the night in question—clearly established that “even
if a limitation on speech is a reasonable time, place, and manner restriction, there is a First
Amendment violation if the defendant applied the restriction because of the speaker’s viewpoint.”

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Galena v. Leone, 638 F.3d 186, 199 (3d Cir. 2011). When the factual allegations in this case are
viewed in Plaintiff’s favor, one can reasonably infer that Rilee and James restricted Plaintiff’s
speech—by allegedly telling him to stop speaking and/or to yield the floor—during the August 3,
2011 council meeting because he disagreed with their viewpoint (that “agricultural lands” . . . [can]
be considered brownfields.”). In light of these factual allegations, the Court concludes that
Plaintiff has sufficiently pled a violation of a clearly established constitutional right.
It was also clearly established on the date in question that an individual’s rights under the
Equal Protection clause are violated when “he has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment.” Hill v. Borough
of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006). When the factual allegations in this case are viewed
in Plaintiff’s favor, one can reasonably infer that Rilee and James intentionally treated Plaintiff
differently from other speakers on the day in question—by allegedly telling him to stop speaking
and/or to yield the floor—and that the difference in treatment had to do with some prior
understanding between Defendant Rilee and the Chester Police Officers vis-à-vis the Plaintiff. In
light of these factual allegations, the Court concludes that Plaintiff has sufficiently pled a violation
of a clearly established constitutional right.
Defendants’ motion to dismiss this claim on the basis of qualified immunity is therefore
denied at this juncture. Although the Court recognizes that the question of whether or not Plaintiff
has shown a violation of a clearly established constitutional right is generally a legal question,5 the
Court nevertheless concludes, based on the particular circumstances of this case, that the factual

See Walter v. Pike County, Pa., 544 F.3d 182, 190 (3d Cir. 2008) (“Qualified immunity is also
an ‘entitlement not to stand trial or face the other burdens of litigation,’ but is ‘conditioned on the
resolution of the essentially legal question whether the conduct of which the plaintiff complains
violated clearly established law.’ ”).
5

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record must be developed before the Court can conclusively determine whether a constitutional
violation has occurred. See generally Newland v. Reehorst, 328 Fed. Appx. 788, 791 (3d Cir.
2009) (“There is no mandatory procedure that courts must follow in determining whether qualified
immunity is warranted in any particular case.”). This is particularly so because discovery may
reveal that the facts are not as Plaintiff now alleges. For example, as previously stated, discovery
may show that any restrictions placed on Plaintiff’s speech were not based on his disagreement
with the views of the Individual Council Members, but rather, based upon his disruptive nature.
See, e.g., Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 271 (3d Cir. 1995) (upholding, at
the summary judgment stage, the ejection of a spectator from a public meeting because he was
“disrupting the proceedings by yelling and trying to speak when it was not time for” public
comments). Similarly, discovery may very well reveal that any difference in the way Plaintiff was
treated during the August 3, 2011 council meeting was rationally related to a legitimate
governmental objective, thereby undercutting Plaintiff’s class of one equal protection claim. See,
e.g., Rowe v. City of Cocoa, Fla., 358 F.3d 800, 803 (11th Cir. 2004) (finding no violation of equal
protection clause at the summary judgment stage and noting that “[i]t is reasonable for a city to
restrict the individuals who may speak at meetings to those individuals who have a direct stake in
the business of the city—e.g., citizens of the city or those who receive a utility service from the
city-so long as that restriction is not based on the speaker's viewpoint.”). As such, although the
Court declines to dismiss Plaintiff’s first amendment and equal protection claims as against the
Individual Council Defendants in their individual capacities at the pleading stage, Defendants may
renew their qualified immunity argument at the summary judgment stage. See generally Mitchell
v. Forsyth, 472 U.S. 511, 526 (1985) (“Even if the plaintiff's complaint adequately alleges the
commission of acts that violated clearly established law, the defendant is entitled to summary

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judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether
the defendant in fact committed those acts.”); Newland v. Reehorst, 328 Fed. Appx. 788, 791 (3d
Cir. 2009) (cautioning that “it is generally unwise to venture into a qualified immunity analysis at
the pleading stage as it is necessary to develop the factual record in the vast majority of cases.”);
see, e.g., Larsen v. Senate of Com. of Pa., 154 F.3d 82, 94 (3d Cir. 1998) (declining to find that
defendants were entitled to qualified immunity on First Amendment retaliation claims where
inquiry could not be conducted without making “factual determinations as to the officials'
subjective beliefs and motivations” and noting that resolution on the face of the pleadings was
inappropriate).

CONCLUSION
Based on the reasons set forth above, the Council Defendants’ motion to dismiss the
Second Amended Complaint [Docket Entry No. 29] is granted in part and denied in part. Count
Two may proceed in its entirety as to the Individual Council Defendants. Count Four is dismissed
with prejudice as to the Individual Council Defendants and the Highlands Council. Count Five
may proceed as to the Individual Council Defendants and is dismissed with prejudice as to the
Highlands Council. Count Six may proceed at this time.
An appropriate Order accompanies this Opinion.

s/ Jose L. Linares
Jose L. Linares
United States District Judge

Date: July 8, 2014

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