DANIELSON v. CHESTER TOWNSHIP et al

Filing 8

OPINION. Signed by Judge Jose L. Linares on 11/19/13. (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NOT FOR PUBLICATION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 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 Complaint filed by Defendants the
Highlands Council, Chairman Jim Rilee and Councilmember Bruce James (hereinafter “Council
Defendants”) [Docket Entry No. 4]. 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.
Plaintiff’s Complaint are dismissed without prejudice.

1

Counts Two, Four and Five of

BACKGROUND’
On August 3, 2011, Plaintiff sought to speak at a public meeting of the Highlands Council.
(Compi., ¶ 10). Plaintiffs comments were subject to a three-minute time limit. (Id., 11). During
¶
the portion of the meeting set aside for public comments, Plaintiff approached the podium to speak.
(Id., ¶ 12). About ninety (90) seconds into Plaintiffs comments, Plaintiff was interrupted “witho
ut
cause” by Defendant Rilee. (Id.,

¶ 13). Plaintiff refused to stop speaking and was subsequently

arrested by approximately three Chester Township Police Officers. (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 Plaintiffs 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 the
Individual Council Defendants based upon alleged violations of Plaintiffs Fourteenth Amend
ment
right to equal protection and his First Amendment right to freedom of speech.
alleges a

Count Three

§ 1983 Monell claim as against Defendant Chester Township. Count Four alleges a §

1983 Monell claim as against the Highlands Council. Finally, Count Five alleges a violati
on of
the New Jersey Civil Rights Act, as against all Defendants.
The Council Defendants have now filed a motion to dismiss Counts Two, Four and
Five
of Plaintiffs Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

The following relevant facts are accepted as true for purposes of the instant motion
. See
Phillips v. Cnty. ofAllegheny, 515 F.3d 224, 233 (3d Cir. 2008).
2

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 Ad. 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 ofAllegheny, 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 plaintiffs 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.

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, both of whom are alleged to have been councilmembers present at
3, 2011 council meeting. In particular, Count Two alleges a

the August

§ 1983 claim against James and Rilee

based upon their alleged violations of Plaintiffs Fourteenth Amendment right to equal protect
ion
and his First Amendment right to freedom of speech. These claims are premised entirel
y on the
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following factual allegations: during the August 3, 2011 council meeting, Plaintiff attempted to
speak on an issue of public importance and councilmembers James and Rilee “interrupted
[Plaintiff’s] public comments prior to this expiration of the three-minute limit and without cause.”
(Compi., ¶j 23-27). Within the framework of these facts, the Court will assess the plausibility of
Plaintiff’s equal protection and first amendment claims, respectively.
As a preliminary matter, however, both claims are brought pursuant to

§ 1983. 42 U.s.c.

§ 1983 provides a civil action for the deprivation of rights against:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws.
42 U.S.C.

§ 1983. The Council Defendants urge the Court to dismiss all claims asserted against

the Council Defendants on the basis that the Highlands Council is an arm of the state and thus is
not a “person” under

§ 1983. The United States Supreme Court has held that “a State is not a

‘person’ within the meaning of § 1983.” Will v. Michigan Dept. of State Police, 491 U.S. 58,
66
(1989); see also Bowers v. Nat’! Collegiate Athletic Ass ‘n, 475 F.3d 524, 545-546 (3d Cir.
2007)

(“A state entity is properly characterized as an arm of the state and thus ‘entitled to immun
ity from
suit in a federal court under the eleventh amendment when a judgment against it ‘would
have
essentially the same practical consequences as a judgment against the State itself.’

“)

(citation

omitted). The Third Circuit has articulated the following three-part test for determining
when a
suit against an entity is actually a suit against the state itself:
(1) Whether the money that would pay the judgment would come
from the state.
.

.

(2) The status of the agency under state law.. ; and
.

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(3) What degree of autonomy the agency has.
Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989).

Defendants’ argument concerning whether or not the Highlands Council is an arm of the
state appears to raise a number of factual issues which are arguably inappropriate on a motion to
dismiss. See Jordan, 20 F.3d at 1261 (noting that, in evaluating plaintiff’s claims on a motion to
dismiss, the Court “looks only to the facts alleged in the complaint and its attachments without
reference to other parts of the record.”). For example, Defendant attaches a declaration by Deputy
Attorney General Matthew T. Kelly which, in turn, attaches twenty-five (25) pages of documents
in support of the assertion that “the Highlands Council receives all of its operational funding from
the Treasury of the State of New Jersey.” (Def. Reply at 2).2 Although the Council Defendants
ultimately might succeed in proving that the Highlands Council is, in fact, a state entity and thus
not subject to suit under

§ 1983, the standard on a motion to dismiss is not whether Plaintiff’s

claims will ultimately succeed or even the probability of their success; rather, in order to state
a
claim for purposes of Rule I 2(b)(6), Plaintiff must simply allege “enough fact to raise a reason
able
expectation that discovery will reveal evidence” in support of such claim(s). Twombly, 550
U.S.
at 556. Having carefully considered the parties’ arguments concerning this significant and
factintensive issue, the Court declines to rule one way or another at this early stage of the
litigation

2

The Court declines to consider the documents submitted by Defendants inasmuch as they are
extraneous to the Complaint and thus have no bearing on whether Plaintiff has met his
burden of
pleading “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550
U.S.
at 570; see also Iqbal, 556 U.S. at 678 (“A claim has facial plausibility when the plainti
ff pleads
factual content that allows the court to draw the reasonable inference that the defendant
is liable
for the misconduct alleged.”); see generally Jordan, 20 F.3d at 1261 (noting that, in evalua
ting 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.”).
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and based on the incomplete record before the Court. See, e.g., Bowers, 475 F.3d at 546 (“Whether
a public university is entitled to Eleventh Amendment immunity is a fact-intensive review that
calls for individualized determinations.”); see generally McCauley v. Univ. of the Virgin Islands,

618 F.3d 232, 236 (3d Cir. 2010) (affirming district court’s dismissal, following a bench trial, of
all

§ 1983 claims as against the University of the Virgin Islands on the basis that it was not a

“person” for purposes of § 1983 and that Ragster and Georges, who were acting in their official
capacities as UVI employees, were also not “persons” for purposes of

§ 1983); Benn v. First

Judicial Dist. ofPa., 426 F.3d 233, 241 (3d Cir. 2005) (affirming district court’s grant of summary
judgment in favor of the Judicial District based on Eleventh Amendment immunity and noting that
“[fjrom a holistic analysis of the Judicial District’s relationship with the state, it is undeniable that
Pennsylvania is the real party in interest in Benn’s suit and would be subjected to both indignity
and an irnperrnissible risk of legal liability if the suit were allowed to proceed.”).
That being said, the Court agrees that Count Two, as currently pled, fails to contain any
facts to substantiate Plaintiff’s theory that the Highlands Council is a “person” subject to
and is thus not an arm—or alter ego—of the State of New Jersey.

§ 1983,

Although the Court could

dismiss all claims asserted against the Council Defendants on this basis alone, in the interest of
judicial economy and for purposes of completeness, the Court will proceed to analyze whether
Plaintiff has otherwise met its burden of stating any facially plausible claims against the Council
Defendants.

1.

Equal Protection and First Amendment Claims

The Individual Council Defendants move to dismiss both claims asserted in Count Two on
two grounds. First, the Individual Council Defendants maintain that Plaintiff’s Complaint fails to

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specify whether Count Two is asserted against them in their individual or official capacities, in
violation of Rule 8. In this regard, the Individual Council Defendants maintain that, if they are
being sued in their official capacities, such claims should be dismissed for the same reasons
advanced above—namely, because a suit against a state official in his or her official capacity is
not a suit against the official, but rather a suit against the state itself. As previously stated, however,
the Court declines to rule on this fact-intensive issue—of whether the Highlands Council is, in
fact, a state entity and thus not subject to suit under

§ 1983—on a motion to dismiss. To the extent

the Individual Council Defendants are being sued in their personal capacities, they urge the Court
to dismiss such claims on the basis of qualified immunity inasmuch as they claim that Plaintiff has
failed to allege sufficient facts to support the claim that the Individual Council Defendants violated
any clearly established constitutional rights by interrupting the Plaintiff during the August 3, 2011
council meeting.
Second, the Individual Council Defendants argue that regardless of whether they are being
sued in their individual or official capacities, Plaintiff has, in any event, failed to allege sufficient
facts to state a facially plausible equal protection or first amendment claim against them, as
required by the Twombly and Iqbal pleading standard.
Having carefully considered the Individual Council Defendants’ arguments concerning
Count Two, the Court agrees that Count Two must be dismissed, in its entirety, without prejudice
for several reasons.
a.

Rule 8

First, the Court agrees with Defendants that Count Two fails to specify whether it is brought
against Defendants Rilee and James in their individual or official capacities. Defendants should
not be forced to guess whether Plaintiff intended to assert his Equal Protection and First

7

Amendment claims against Defendants Rilee and James in their official or personal capacities (or
both), and then argue implications of same in the abstract.
that states a claim for relief must contain.

.

.

Rule 8(a) requires that “[a] pleading

a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Without specifying whether the claims
asserted against Defendants Rilee and James are in their official or personal capacities, Plaintiff
has failed to provide Defendants with proper notice of the nature of the claim(s) being asserted
against them, in violation of Rule 8(a).
Next, it is not entirely clear whether Plaintiff claims that it was Defendant Rilee or
Defendant James who actually interrupted him, or both. Compare Compl., 13 (“Approximately
¶
90 seconds into Plaintiff’s comments, he was interrupted without cause by Defendant Rilee.”) with
Comp!.,

¶ 26 (“Defendant Council Members interrupted his public comments prior to the

expiration of the three-minute limit and without cause.”). Again, this violates Rule 8(a) because
it fails to give Defendants Rilee and James proper notice ofthe nature of the claim(s) being asserted
against them.
For these two reasons, the Court concludes that Plaintiff has failed to provide Defendants
Rilee and James with proper notice of the nature of claim(s) being asserted against them,
in
violation of Rule 8(a) of the Federal Rules of Civil Procedure.

b.

Failure to State a Claim

Putting aside the basic Rule 8(a) pleading deficiencies in Count Two, based on the reasons
that follow, the Court finds that Plaintiff has in any event failed to allege sufficient
facts to
substantiate either an Equal Protection or First Amendment claim as against either Defendant
or James.

8

Rilee

As a preliminary matter, the Court notes that personal involvement by a defendant is an
indispensable element of a valid legal claim; such personal involvement may exist only where the
named defendant violated the plaintiff’s rights either by executing the acts at issue himself or
herself, or by directing others to violate the plaintiffs rights. See Baker v. Monroe Twp., 50 F.3d
1186, 1190—91 (3d Cir. 1995); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Where
no personal involvement by the defendant is asserted, the plaintiffs claim against that defendant
is subject to dismissal. Rode, 845 F.2d at 1207. As stated above, it is unclear from the Complaint
whether Defendant James had any role in the alleged interruption. Compare Compl.,

¶

13

(“Approximately 90 seconds into Plaintiffs comments, he was interrupted without cause by
Defendant Rilee.”) with Compl.,

¶

26 (“Defendant Council Members interrupted his public

comments prior to the expiration of the three-minute limit and without cause.”). Absent any
particular facts establishing personal involvement by Defendant James in the alleged interruption,
Count Two is subject to dismissal, in its entirety, as it relates to Defendant James.
As to Plaintiffs First Amendment claim, 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[j’ “Id. (quoting Good News Club v. Milford Cent. Sch., 533 U.S. 98, 107 (2001)). Stated

9

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 (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
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.”).
Plaintiffs Complaint, as currently drafted, alleges simply that Plaintiff was interrupted
while speaking and that such interruption was “without cause.”

Aside from describing the

interruption as “without cause”—which is conclusory and arguably a legal conclusion—Plaintiff
has alleged no facts that would allow this Court to draw the reasonable inference that restrictions
were imposed on his speech, by either Defendant Rilee or James, on the basis of his viewpoint.
Absent such factual content, Plaintiff has failed to plead an actionable violation of his
First
Amendment rights by either Defendant Rilee or James. 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). Plaintiffs First Amendment claims against Defendants Rilee and
James are
therefore dismissed without prejudice.
Turning now to Plaintiffs Equal Protection claim against the same defendants, a plaintiff
may state a claim for a violation of the Equal Protection clause under a “class of one”
theory when

10

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 treatm
ent.”
Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006) (citation omitted).

Plaintiff

concedes that his equal protection claim is premised on the same facts underlying his First
Amendment claim—namely, that Defendants Rilee and James interrupted his speech “witho
ut
cause.” See P1. Opp’n Br. at 14-15.
Even if the Complaint could be construed as alleging that Defendants acted intentionally
when they interrupted Plaintiff’s speech, Plaintiff’s equal protection claim is wholly deficie
nt
inasmuch as the Complaint does not allege that he was treated differently from any other speake
r
during the August 3, 2011 council meeting. In Plaintiff’s opposition brief, he states: “Plain
tiff was
prevented by Defendants from using his 3 minutes—unlike others similarly situate
d.” (P1. Opp’n
Br. at 15). Although Plaintiff cites to paragraph 13 of his Complaint in support of this
assertion,
paragraph 13 makes no mention of the fact that Plaintiff was allegedly treated any differe
ntly from
any other particular individuals. Even if Plaintiff’s Complaint did contain the allegat
ion that he
was treated “unlike others similarly situated,” such allegation would be insufficient inasmu
ch as it
is entirely conclusory absent corresponding facts to provide proper context for this statem
ent. See,
e.g., Hill, 455 F.3d at 239 (“Hill’s [equal protection] claim must fail because he does
not allege
the existence of similarly situated individuals—i.e., Borough Managers—who Marino
treated
differently than he treated Hill.”); Phillips, 515 F.3d at 245 (affirming dismis
sal of class-of-one
equal protection claim where there was “no allegation that these actions resulte
d in him being

11

treated differently from other individuals—individuals whose personal information is in the 911
database. Paragraph 26 of the Complaint, for example, indicates that ‘Defendants Tush and Craig
assisted Michaiski knowing that they were accessing unauthorized personal information that had
absolutely no relationship to their functions as dispatchers and [sic] a 911 emergency call center.’
This allegation, however does not aver that Phillips was treated differently.”).
Next, Plaintiff fails to allege any facts that would allow the Court to draw the reasonable
inference that either Defendant Rilee or James lacked a rational basis for their alleged interruption
of Plaintiff’s speech. Based on Plaintiff’s opposition brief, it is clear to the Court that Plaintiff has
attempted to satisfy the third element for a class-of-one equal protection claim—that there was no
rational basis for the difference in treatment—by alleging that Defendants Rilee and/or James
interrupted him “without cause.” As previously stated, the Court finds the expression “witho
ut
cause,” as used by Plaintiff in Count Two of the Complaint, to be entirely conclusory and arguab
ly
a legal conclusion. In other words, Plaintiff provides absolutely no facts to substantiate the theory
that Defendants lacked a rational basis for interrupting him during his speech. Absent facts
concerning the circumstances surrounding Plaintiff’s speech and Defendants’ alleged interruption,
the Court cannot draw the reasonable inference that either Defendant Rilee or James are liable
for
the misconduct alleged—namely, violation of Plaintiff’s Equal Protection rights. Plaintiff’s Equal
Protection claims against the Individual Council Defendants are thus dismissed without prejudice.
Because the Court finds that Plaintiff has failed to plead a facially plausible First
Amendment or Equal Protection claim as against either of the Individual Council Defend
ants—
and dismisses both claims on this basis without prejudice—the Court declines to rule
on the
Council Defendants’ qualified immunity arguments at this time. The Council Defendants
may
renew such arguments in any future motion practice.

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B.

Count Four—Monell Claim Against Highlands Council

Count Four purports to assert a

§ 1983 Monet! 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” Municipalities or other local government units may incur liability under

§ 1983 only

when its policy or custom causes a particular constitutional violation. See Monet! v. Dept. ofSoc.
Servs. of Cliv of New York, 436 U.S. 658, 694 (1978).

But Plaintiff’s Complaint alleges no

particular policy or custom that was actually adopted and promulgated by the Highlands Council.
Nor does the Complaint lay out any facts to explain how such particular policy or custom actually
caused a violation of Plaintiff’s constitutional rights. At most (as it pertains to this motion), the
Complaint alleges that Defendant Rilee interrupted him while he was speaking during a Highlands
Council meeting. “[A] municipality cannot be held liable solely because it employs a tortfeasor
or, in other words, a municipality cannot be held liable under

§ 1983 on a respondeat superior

theory.” Monell, 436 U.S. at 691. Because Plaintiff fails to identify any particular policy or custom
adopted by the Highlands Council that caused the alleged deprivation of his constitutional rights,
and given that the Highlands Council cannot be held liable merely because of the actions of
one
of its employees, Plaintiff has failed to state a facially plausible

§ 1983 Mone!l claim against

Defendant Highlands Council. The Council Defendants’ motion to dismiss Count Four is granted.
Count Four of Plaintiff’s Complaint is dismissed without prejudice.

C.

Count Five—Violation of 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.

13

10:6—2, in Count Five of his 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. Administrative 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

i

Sherman, No. 09—716, 2010 WL 2483911, *5 (D.N.J. June 4, 2010) (“[Tjhe New

Jersey Civil Rights Act is a kind of analog to section 1983

....“);

see generally Hedges 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).
Plaintiffs claim for violation of the New Jersey Civil Rights Act fails for two reasons.
First, it fails to comply with Rule 8(a). Plaintiff merely “incorporates by reference each and every
allegation” previously set forth in the Complaint, and then states in a conclusory fashion that
“the
acts of the Defendants violated Plaintiffs rights under the New Jersey Civil Rights Act.” Plainti
ff
does not specify which particular acts by which particular Defendants he believes caused
a
violation of his rights under the NJCRA. Plaintiffs Complaint asserts a variety of 1983
claims
§
against a variety of Defendants. Although this motion pertains only to the Council Defendants,
Plaintiffs Complaint also attempts to hold liable the Township of Chester, its Police Depart
ment
and several of its officers for actions that took place after the Council Defendants’
allegedly
interrupted his speech and under theories that are entirely distinct from those under
which he
attempts to hold the Council Defendants liable. Neither the Court nor the Defendants should
be

14

forced to speculate which events and theories of liability give rise to Count Five. Certainly, neither
the Court nor the Defendant should be required to sift through all of Plaintiffs previously stated
allegations in order to piece together a claim under the NJCRA.

Although there may be

circumstances in which it is appropriate to incorporate certain allegations by reference, there
is no
question that each count of a properly pled complaint must contain its own cause of action and
those particular factual allegations that would allow the Court to draw the reasonable inferen
ce
that the defendant is liable for that cause of action. See Iqbal, 556 U.S. at 678. Count Five
of
Plaintiff’s Complaint, as currently drafted, fails to meet this requirement. See, e.g., Anderson
v.
District Bd. of Trustees of Cent. Florida Crnty. College, 77 F.3d 364, 366 (11th Cir.
1996)

(“Anderson’s complaint is a perfect example of ‘shotgun’ pleading in that it is virtually imposs
ible
to know which allegations of fact are intended to support which claim(s) for relief.”).
In the alternative, having concluded that the Complaint fails to set forth any viable

§ 1983

claims against the Council Defendants, Plaintiffs corresponding claim (against said Defend
ants)
for violation of the NJCRA—which, is indisputably modeled after

§ 1983—must be dismissed,

without prejudice, for the reasons discussed above.

D.

Punitive Damages

Finally, Plaintiff seeks, in conjunction with all claims asserted against the Counc
il
Defendants, an award of punitive damages.

The Council Defendants seek to strike Plaintiffs

request for punitive damages on the basis that punitive damages are not available in lawsui
a
t under

§ 1983. Although the Court agrees, as a general matter, that “a municipality is immune from
punitive damages under 42 U.S.C.

§ 1983,” the issue of whether the Highlands Council Water

15

Protection and Planning Council should be considered a municipality has not been properly
presented to this Court. gerogeCitv of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981).
Moreover, as previously stated, Defendants’ related arguments concerning whether or not the
Highlands Council is an arm of the state appears to raise a number of factual issues which are
inappropriate on a motion to dismiss. In any event, having concluded that Plaintiff’s Complaint
fails to state any facially plausible claims against the Council Defendants, the issue of whether
said Defendants could be subjected to punitive damages arising out of said claims is, at this
juncture, moot.

CONCLUSION

Based on the reasons set forth above, the Council Defendants’ motion to dismiss [Docket
Entry No. 4) is granted. Counts Two, Four and Five are dismissed without prejudice. Plaintiff
may file an Amended Complaint on or before December 30, 2013 to cure the pleading deficiencies
discussed above. Plaintiff’s failure to do so by such date may result in dismissal of Counts Two,
Four and Five with prejudice, upon application by the Council Defendants.
An appropriate Order accompanies this Opinion.

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

Date: November 19, 2013

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