MARRERO v. TOWNSHIP OF NORTH BERGEN AND THE NORTH BERGEN DEMOCRATIC MUNICIPAL COMMITTEE

Filing 20

OPINION. Signed by Judge Kevin McNulty on 7/31/15. (cm )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ENRIQUE MARRERO,
Civ. No. 14-cv-3482 (KM)

Plaintiff,
V.

OPINION
TOWNSHIP OF NORTH BERGEN and
THE NORTH BERGEN DEMOCRATIC
MUNICIPAL COMMITTEE,
Defendants.
KEVIN MCNULTY, U.S.D.J.:
Plaintiff Enrique Marrero commenced this action against the Township of
North Bergen (“North Bergen”) and the North Bergen Democratic Municipal
Committee (“the Committee”). Marrero, a sergeant with the North Bergen Police
Department, alleges that the defendants unlawfully retaliated against him after
he announced his candidacy for the position of Hudson County Freeholder. His
Complaint asserts claims under 42 U.S.C. § 1983 for conspiracy and the
violation of his First Amendment rights. Now before the Court are motions to
dismiss by North Bergen (Dkt. No. 11-1) and the Committee (Dkt. No. 9-1). For
the reasons set forth below, the motions are granted and the Complaint is
dismissed without prejudice.
I.

BACKRGROUND

The plaintiff, Enrique Marrero, has worked as a North Bergen police
officer for several years. Sometime in 2014, Marrero decided to run for the
position of Hudson County Freeholder. (Compi., Dkt. No. 1, ¶6) Marrero
believes that his candidacy was perceived as an attempt to “buck[J” North
Bergen’s “political machine” which, he submits, exerts de facto control over the
township’s government. (Id. at ¶7) Marrero contends that his entrance into the
race “enraged the defendants” to such an extent that they “began a wholesale
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war” to “destroy his political and law enforcement career.” (Id. at ¶9) He alleges
that the defendants engaged in a campaign of harassment and retribution in
order to intimidate the plaintiff and his supports.
On May 7, 2014, Marrero alleges, a resident of North Bergen, identified
in the Complaint only as “J.H.”, telephoned the police. J.H. reported that
another individual, identified only as “A.F.”, came to his house and directed
him to remove Marrero’s campaign sign from his window and replace it with a
sign for another candidate endorsed by the Committee. (Id. at

¶ 10) According to

Marrero, A.F. told J.H. that a refusal to change the sign would “cause serious
problems.” (Id. at

¶ 11)

Also on May 7, 2014, another North Bergen resident, identified only as
“A.P.,” allegedly called the police to report that “a male entered the Exxon
gasoline station where she works and with malicious purpose and conviction
wrongfully confiscated all of the plaintiff’s freeholder campaign fliers.” (Id. at
¶12) Marrero states the intruder “was then seen to walk toward the municipal
North Bergen High School.” (Id.)
On May 8, 2014, A.F.—the individual who paid the house call to J.H.—
reportedly told the police that she “merely wanted to offer J.H. an opportunity
to support [Marrero’s opponent]” in the freeholder election. (Id. at ¶13) Marrero
alleges that A.F. is an agent of the Committee, and that her actions were
deliberately calculated to “send a threatening yet clear message” that the
Committee disfavored his candidacy. (Id.)
After these events, Marrero alleges, North Bergen caused security
personnel from North Bergen High School to enter a bagel shop adjacent to the
school, confiscate his campaign flyers, and threaten the store’s employees that
they would “have problems” if they did not display signs promoting Marrero’s
opponent. (Id. at ¶j17-18)
Marrero further alleges that he was subject to retaliation at his
workplace. He states that A.F., at the urging of the Committee, filed an Internal
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Affairs Complaint against him for harassment in order to “punish and destroy
the plaintiff’s declared candidacy, professional law enforcement and political
careers.” (Id. at ¶14) He also complains that, on certain occasions,
“unidentified individuals” at the North Bergen Police Department opened his
personal and inter-office mail. (Id. at ¶15) Additionally, Marrero alleges that
while he was lawfully campaigning in front of a public school, Defendant North
Bergen “caused four police vehicles and school security to... physically remove
him from the area.” (Id. at ¶16)
On June 2, 2014, the plaintiff commenced this

§ 1983 action against

North Bergen and the Committee. The Complaint alleges that defendants
violated Marrero’s First Amendment rights (Count One) and conspired to do the
same (Count Two). On July 7, 2014, the Committee filed a motion to dismiss
the Complaint. On July 10, 2014, North Bergen also moved to dismiss.
II.

LEGAL STANDARD
Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in

part, if it fails to state a claim upon which relief can be granted. The defendant,
as the moving party, bears the burden of showing that no claim has been
stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a
Rule 12(b)(6) motion, a court must take the allegations of the complaint as true
and draw reasonable inferences in the light most favorable to the plaintiff.
Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (traditional
“reasonable inferences” principle not undermined by Twombly, see infra).
Federal Rule of Civil Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell AU. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiff’s right to
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relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008).
That facial-plausibility standard is met “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard
is not akin to a ‘probability requirement’.

.

.

it asks for more than a sheer

possibility.” Iqbal, 556 U.S. at 678.
III.

ANALYSIS

I first discuss some general factual deficiencies of the complaint, and
then proceed to the particular causes of action pled against North Bergen and
the Committee.
A.

Factual Vagueness

There is a general problem that affects all of the causes of action in the
Complaint. For the most part, Marrero has reported secondhand allegations
from anonymous persons about still other anonymous persons. He attributes
their actions to the defendants, but does not plead facts that would permit
such an inference.
For example, anonymous person J.H. reports that anonymous person
A.F. told her to take down a campaign sign. There is no fact from which the
reader could infer that mystery person A.F. acted on behalf of defendant North
Bergen or the Committee. The Complaint’s allegation “on information and
belief” that that A.F. was an “agent” of the Committee simply will not do.
Anonymous person A.P. allegedly reports that another anonymous
person (not even any initials here) confiscated Marrero’s campaign flyers, and
walked off in the direction of the high school. (The flavor of the complaint is
that the high school is tainted by the political machine, but again there is little
in the way of specifics.) There is nothing here for a court to work with in
attempting to establish the elements of a cause of action.
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For the reasons expressed below, I am dismissing this Complaint, but
without prejudice to the filing of an Amended Complaint. Any amended
pleading should contain specific facts supporting the elements of plaintiff’s
causes of action.

B.

The Claims Against the Committee

The claims against the Committee are legally defective. Marrero has
failed to plead facts showing that the Committee “acted under color of” of state
law, an essential element of a

§ 1983 action.

Title 42, United States Code, Section 1983 provides:
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, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress...
42 U.S.C.

§ 1983 (emphasis added). The Committee, according to the

Complaint, is “an organization formed for the purported advancement of the
democratic political ideology in North Bergen.” (Compl., ¶3) It is, in other
words, a private club or association that promotes the interests of the local
Democratic Party. A non-state actor, the Committee is not a suable “person”
under

§ 1983. Max v. Republican Comm. of Lancaster Cnty., 587 F.3d 198, 200
n.3 (3d Cir. 2009) (noting that the § 1983 “under color” requirement has
consistently been treated as identical to the “state action” requirement under
the Fourteenth Amendment) (internal quotations and citations omitted).

There are cases in which courts have permitted constitutional claims to
proceed against political parties. See Smith v. Allwright, 321 U.S. 649 (1944);
Terry v. Adams, 345 U.S. 461 (1953); Redfeam v. Delaware Republican State

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Committee, 362 F. Supp. 65 (D. Del. 1973), rev’d on other grounds, 502 F.2d
1123 (3d Cir. 1974). In those cases, however, the plaintiff alleged that “the
state had sufficiently involved political parties in the operation of primary
elections so that the conduct of the party could be considered state action.”
Valenti v. Pennsylvania Democratic State Comm., 844 F. Supp. 1015, 1017
(M.D. Pa. 1994). Here, Marrero has generally indicated that the “machine” pulls
the strings, but has pleaded no facts that would permit the Court to draw the
inference that the Committee is a state actor.
Accordingly, Marrero’s

§ 1983 claims against the Committee are

dismissed without prejudice for failure to state a claim.
C.

The Claims Against North Bergen

The Complaint also fails to state a claim against North Bergen. Marrero
has not successfully alleged a constitutional injury. But even if he had, the
Complaint lacks sufficient detail to attribute that injury to North Bergen, which
is not subject to respondeat superior liability under

§ 1983. Either deficiency is

sufficient grounds for dismissal.
A First Amendment retaliation claim has three essential elements:
(1) The plaintiff’s speech was protected under the First Amendment;
(2) The defendant took an adverse or retaliatory action; and
(3) A causal connection between (1) and (2), i.e., that the protected
speech was a substantial or motivating factor in the retaliatory action,
shifting the burden of proof to defendant to demonstrate it would have
taken the same action absent the protected speech.
See Miller v. Mitchell, 598 F.3d 139, 147 (3d Cir. 2010); Gorum v. Sessoms, 561
F.3d 179, 184 (3d Cir. 2009); Hill v. Borough of Kutztown, 455 F.3d 225, 241
(3d Cir. 2006); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). The first
element is an issue of law; the second and third are questions of fact.

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Baldassare v. New Jersey, 250 F.3d 188, 195 (3d Cir. 2001); Johnson v. Lincoln
Univ., 776 F.2d 443, 454 (3d Cir. 1985); see also Gorum, supra.
Marrero’s run for Hudson County Freeholder and any speech related
thereto are undoubtedly protected by the First Amendment. See Perez v. Cucci,
725 F. Supp. 209, 234 (D.N.J. 1989) (surveying Supreme Court case law); see
also Ferraioli v. City of Hackensack Police Dep’t, 2010 U.S. Dist. LEXIS 8527 at
*22 (D.N.J. July 29, 2009) (freedom of association encompasses the right to
maintain a political affiliation). However, the Complaint alleges no facts that
could support the second and third elements of a First Amendment retaliation
claim.
An “adverse or retaliatory action” is one sufficient “to deter a person of
ordinary firmness” from exercising his First Amendment rights. Suppan v.
Dadonna, 203 F.3d 228, 235 (3d Cir. 2000). Marrero alleges no facts to support
the inference that the threatening visits to persons displaying his campaign
signs were directed by North Bergen. Any alleged intimidation, moreover, was
not directed against Marrero himself, but against (anonymous) third parties.
Certain other allegations of retaliation in the Complaint—that someone
at Marrero’s workplace opened his mail and that he was compelled to leave a
school where he was campaigning’—might rise to the level of retaliation, if
alleged with sufficient specificity. Bradshaw v. Twp. of Middletown, 296 F.
Supp. 2d 526, 538 (D.N.J. 2003), aff’d, 145 F. App’x 763 (3d Cir. 2005) (“The
First Amendment’s protections against retaliation are broad: it insulates public
employees not just from retaliatory discharge or demotion, but also ‘from even
an act of retaliation as trivial as failing to hold a birthday party for a public
employee when intended to punish her for exercising her [First Amendment]
rights.”’) (quoting Rutan v. Republican Party of ill., 497 U.S. 62, 75 n. 8 (1990)
(quotations omitted)). I need not reach that question, however, because Marrero
Of course, a police department might be justified in opening mail addressed to
the department, and a school might properly prohibit political campaigning on its
grounds. I do not reach the substance.
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has alleged no facts that would tend to show that his protected speech was a
“substantial or motivating” factor behind those retaliatory acts. Miller, 598 F.3d
at 147. I therefore find that Marrero has failed to successfully allege a First
Amendment retaliation claim.
Finally, even assuming arguendo that Marrero has identified a
constitutional injury, the Complaint offers no factual basis for holding North
Bergen liable. It is well established that municipal liability under § 1983 “may
not be proven under the respondeat superior doctrine, but must be founded
upon evidence that the government unit itself supported a violation of
constitutional rights.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.1990)
(citing Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978)). As a

consequence, a municipality may be liable under § 1983 only where the
constitutional injury is alleged to have been caused by a municipal “policy” or
“custom”. See Monell, 436 U.S. at 694. A municipal policy is made when a
“decisionmaker possess[ing] final authority to establish municipal policy with
respect to the action issues an official proclamation, policy, or edict.” And rews
v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (internal quotations
omitted). A municipal custom may be shown where a course of conduct,
though not authorized by law, is “so permanent and well-settled as to virtually
constitute law.” Id. Marrero’s Complaint is completely devoid of facts that
would enable the Court to conclude that the alleged retaliation against him was
ordered by North Bergen or was an expression of municipal policy or customs.
I will therefore dismiss both the substantive and conspiracy counts
against North Bergen. An unconstitutional conspiracy must of course have a
recognized constitutional deprivation as its object, and it must involve two or
more conspirators. See Woods v. Grant, 381 F. App’x 144, 147 (3d Cir. 2010)
(quoting Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 700 (3d Cir. 1993)

(“In order to demonstrate the existence of a conspiracy under § 1983, a
‘plaintiff must show that two or more conspirators reached an agreement to
deprive him or her of a constitutional right under color of law.”). My grounds
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for dismissing the substantive constitutional claims imply that the conspiracy
claims must be dismissed as well.
IV.

CONCLUSION

For the foregoing reasons, the motions to dismiss filed by defendants, the
Committee and North Bergen, are GRANTED. The Complaint is dismissed in its
entirety WITHOUT PREJUDICE to the filing of an amended complaint within
30 days. The dismissal will become final if no such amended complaint is filed
timely.
An appropriate Order will issue.

Dated: July 31, 2015
KE IN MCNULT
United States District Judge

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