MARRERO v. TOWNSHIP OF NORTH BERGEN AND THE NORTH BERGEN DEMOCRATIC MUNICIPAL COMMITTEE
Filing
32
OPINION. Signed by Judge Kevin McNulty on 4/6/16. (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 again
st the Township of
North Bergen (“North Bergen”) and the North Bergen Dem
ocratic Municipal
Committee (“the Committee”). Marrero, a Sergeant with
the North Bergen Police
Department, alleges that the defendants unlawfully retal
iated 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 violati
on of his First
§
Amendment rights and conspiracy. By order and opinio
n dated July 31, 2015, I
dismissed the original Complaint, which was replete with
vague allegations
against anonymous persons. (ECF nos. 20, 21) That dism
issal was without
prejudice to the filing of an amended complaint.
Mr. Marrero has now filed an Amended Complaint (“AC”, ECF
no. 22),
intended to remedy the fatal vagueness of the original com
plaint. Before the
Court are the motions of North Bergen (ECF no. 26) and the
Committee (ECF
no. 25) to dismiss the Amended Complaint for failure to state
a claim, pursuant
to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the
motions are
DENIED.
1
I.
THE AMENDED COMPLAINT
The Amended Complaint alleges that defendants violated
Marrero’s First
Amendment rights (Count One-42 U.S.C. 1983) and conspi
red to do the same
§
(Count Two). I summarize the allegations of the Amended Compl
aint, which
must be taken as true for purposes of this motion only.
The plaintiff, Enrique Marrero, is a North Bergen Police Sergea
nt. (AC ¶ 1)
On July 28, 2014, he filed a state court complaint against North
Bergen and
others, which was subsequently dismissed. (AC ¶2) This was
an exercise of first
amendment rights. (AC ¶8)
Sometime in 2014, Marrero announced his candidacy for the
position of
Hudson County Freeholder. (AC ¶6) His candidacy, he says, was
perceived as
an attempt to “buckfl” 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 war” to “destroy his politic
al and law
enforcement career.” (Id. at ¶9) He alleges that the defendants engage
d in a
campaign of harassment and retribution in order to intimidate the
plaintiff and
his supporters.
In early May, 2014, Marrero alleges, two North Bergen residents,
Frankie
Piazza and Pete Bourbon, told the owner of Bruins Bagel shop
to remove a
Marrero campaign sign from his window or else face “big problems.”
The shop
owner refused. Piazza allegedly holds multiple jobs with the Town,
and is
alleged on information and belief to be the godson of the Committee
Chairman,
John Beluardo. (AC ¶ 10)
On May 7, 2014, Augusta Pavon and Oscar Torengra, who are
employees of an Exxon station across from the high school, reporte
d to the
police that Marrero’s campaign flyers had been removed from the
gas station
and destroyed. Marrero alleges that the culprit was Piazza.
2
On May 7, 2014, Aimee Focaraccio, whose mother is on the
Committee,
went to the residence of Jose Henriquez and Monica Apo
nte. Focaraccio told
Henriquez to replace his Primary Election Column B sign
(which includes
Marrero) and to replace it with a “Sacco Team Colu
mn A” sign, or else he would
face “problems.” (AC ¶ 14)
In May 2014, when Marrero campaigned at or near the
public schools,
police were summoned to remove him. (AC 16)
¶
In May 2014, at a monthly meeting of the Committee,
the Mayor stated
that Marrero had turned against the Committee, and enco
uraged anyone with
negative information to file a complaint against Marrero.
(AC ¶ 20) Thereafter,
Focaraccio filed a false Internal Affairs Complaint again
st Marrero for
“harassment.” (AC ¶ 21) Piazza filed a false criminal assau
lt complaint against
Marrero, which resulted in a directed verdict of not guilt
y at the close of the
State’s case. (AC ¶ 22)
Marrero and his supporters witnessed violations and impr
oprieties at the
polls on primary election day in June 2014. (AC 23)
¶
After he ran for Freeholder, Marrero was removed from his
position in
charge of the Junior Police Academy. (AC 18)
¶
After Marrero lost the primary, a Captain and Lieutenan
t of the Police
Department came to his home and personally delivered
the message that he
would be replaced in his Police position “in charge of the
North Bergen
Schools,” which he had held since 2009. (AC 24) Office
r Marina Fernandez,
¶
an open supporter of Marrero, was also reassigned and repla
ced. (AC ¶ 25)
Since June 2014, Marrero has allegedly been monitored
in the hope that
he would slip up. On June 26, 2014, Officer Reveron was
repeatedly pressed in
an effort to elicit that Marrero had signed in late, whic
h was not correct. (AC
¶
27) On June 27, 2014, Captain Lyons expressed annoyanc
e at having to follow
Marrero around. (AC ¶ 28) During the last municipal elect
ion, Marrero was
3
given indoor duty in an attempt to keep him from participat
ing in the political
process. (AC ¶ 29)
II.
LEGAL STANDARD
Rule 12(b)(6) provides for the dismissal of a complain
t, in whole or in
part, if it fails to state a claim upon which relief can be gran
ted. 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 Twom
bly, see infra).
Federal Rule of Civil Procedure 8(a) does not require that
a complaint
contain detailed factual allegations. Nevertheless, “a plainti
ff’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 Ati. 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
relief above a speculative level, so that a claim is “plausible
on its face.” Id. at
570; see also Umland u. PLANCO Fin. Serv., Inc., 542 F.3d 59,
64 (3d Cir. 2008).
That facial-plausibility standard is met “when the plaintiff plead
s 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 plau
sibility standard
is not akin to a ‘probability requirement’.
it asks for more than a sheer
possibility.” Iqbal, 556 U.S. at 678.
.
III.
.
ANALYSIS
This discussion, written for the parties, assumes familiarity
with my
prior Opinion. (ECF no. 20).
4
Marrero sues under Title 42, United States Cod
e, Section 1983, which
provides:
Every person who, under color of any statu
te, 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 perso
n within the
jurisdiction thereof to the deprivation of any right
s, 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).
In my prior Opinion, I stated that no facts had been
pled to suggest that
the Committee acted under color of state law, an
essential element of a § 1983
action. I noted, however, that there were cases
in which a plaintiff had alleged
that “the state had sufficiently involved political parti
es 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).
As to North Bergen, my prior Opinion stated that
no sufficient facts had
been alleged to support an inference that Marrero’s
first amendment activity
had been a motivating factor in any acts of retaliatio
n. In addition, no sufficient
connection had been drawn between such retaliator
y acts and the Township.
The original complaint alleged generally that the “mac
hine” pulls the
strings. I found that to be too vague and general an
allegation. Now there is
more.
One of the campaign harassers, Piazza, has been iden
tified as a North
Bergen employee and a family relation of a Com
mittee member. Another,
Focaraccio, is a close family relation of a Com
mittee member. A family
connection (particularly as to unidentified perso
ns, as in the original
Complaint), would perhaps not suffice. But
the actions themselves—
intimidating persons, destroying campaign signs
to help a political primary
5
rival,
bringing
allegedly
false
complaints—now provide
context
for the
allegations.
Now it is alleged, not just that there is a “machine,” but that a Committee
meeting was attended by the Mayor of North Bergen, who encouraged the
members to file complaints against Marrero. The stated rationale—that Marrero
had “turned against” the Committee—could, if believed, suggest that the
Mayor, on behalf of the Township, was making common cause with them. And
allegedly false complaints, filed by Piazza and Focaraccio, followed.
The actions taken against Marrero were contemporaneous with or closely
followed the primary campaign and election. That is very far from proof of first
amendment retaliation. But considered in context, the alleged acts furnish the
basis for a claim.
IV.
CONCLUSION
For the foregoing reasons, the motions to dismiss filed by defendants, the
Committee and North Bergen, are DENIED. Again, I emphasize the limited
scope of my ruling. This opinion signifies only that the Amended Complaint
contains allegations sufficient to permit it to go forward. Whether the
allegations can be proven is a separate question, and one for another day.
An appropriate Order will issue.
Dated:April6, 2016
I
i’
4
.(
CJ
KEVIN MCNULTY
United States District Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?