HENRY v. JERSEY CITY POLICE DEPARTMENT et al
OPINION fld. Signed by Judge Susan D. Wigenton on 4/20/16. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JERSEY CITY POLICE DEPARTMENT
Civil Action No. 2:14-cv-05480-SDW-LDW
April 20, 2016
WIGENTON, District Judge.
Before this Court is the Motion to Dismiss of Defendant New Jersey Transit Corporation
(“NJT”) 1 and the Motion to Dismiss of Defendants State of New Jersey and Hudson County
Prosecutor’s Office (“HCPO”) (collectively, “Defendants”), pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). 2 This Court, having considered the parties’ submissions, decides
this matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons
stated below, Defendants’ Motions are GRANTED.
NJT was initially pled as “New Jersey Transit Police.” (Am. Compl.) This Court treats NJT as the
proper party for purposes of this Opinion.
Venue is proper in this District pursuant to 28 U.S.C. §1391(b).
According to the Amended Complaint, Plaintiff Tevin Henry (“Plaintiff”) was riding a
bicycle on or about November 1, 2012, at approximately 9:30 p.m., in Jersey City, New Jersey,
when “one of the Defendants flashed [his or her] headlights at . . . Plaintiff.” (Am. Compl. 4 ¶¶ 34.) After the headlight flashing, Plaintiff heard someone yell “freeze” and then saw between ten
and twelve people run toward him. (Id. at 5 ¶¶ 5-6.) According to Plaintiff, he stopped, dropped
his bicycle to the ground, and put his hands in the air. (Id. at 5 ¶ 7.) Plaintiff was then “immediately
assaulted by the Defendants,” who “pushed [Plaintiff’s] face into the ground[,] . . . began hitting
him with flashlights and night sticks [sic] in the face[,] . . . . twisted his ankles and kicked and
stepped on his chest.” (Id. at 5 ¶¶ 9, 10.)
Plaintiff also claims he was searched after the alleged assault. (Id. at 5 ¶ 11.) Although
Defendants purportedly accused Plaintiff of possessing a firearm, the search only yielded a
flashlight, which Defendants subsequently broke. (Id. at 5 ¶ 11.) Plaintiff was released “a short
time later.” (Id. at 5 ¶ 12.)
According to Plaintiff, his assailants were a group of law enforcement officers or officials
from the Jersey City Police Department, Hudson County Prosecutor’s Office, Hudson County
Sheriff’s Office, and New Jersey Transit Police Department. (Id. at 2-3 ¶¶ 2-5.) Plaintiff claims
the assault caused him to sustain “severe and grievous permanent injuries.” (Id. at 5 ¶14.)
On July 9, 2014, Plaintiff filed a Complaint in the Superior Court of New Jersey, Law
Division, Hudson County; which Defendants County of Hudson and Hudson County Sheriff’s
Office subsequently removed to this Court on September 2, 2014. (Dkt. No. 1.) On October 15,
2015, Plaintiff filed an Amended Complaint, naming a number of individual police officers and
entities as defendants, including Defendants NJT, State of New Jersey, and HCPO. (Dkt. No. 28.)
The Amended Complaint seeks damages, costs, and fees from Defendants for deliberate
indifference, recklessness, negligence, assault, battery, intentional misconduct, and violation of
Plaintiff’s equal protection and due process rights pursuant to 42 U.S.C. §§ 1982, 1983, and 1985;
the New Jersey Civil Rights Act, N.J. Stat. Ann. § 10:6-2 (“NJCRA”); and “all applicable New
Jersey State Laws.” (See Am. Compl.)
On November 12, 2015, Defendant NJT filed a Motion to Dismiss Plaintiff’s Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 35.) On
January 8, 2016, Defendants State of New Jersey and HCPO filed a Motion to Dismiss Plaintiff’s
Amended Complaint, also pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
(Dkt. No. 45.)
A. Federal Rule of Civil Procedure 12(b)(1)
A defendant may move to dismiss a complaint for lack of subject-matter jurisdiction under
Fed. R. Civ. P. 12(b)(1) by challenging jurisdiction facially or factually. Constitution Party of
Pennsylvania v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014). A facial challenge to subject-matter
jurisdiction “considers a claim on its face and asserts that it is insufficient to invoke the subjectmatter jurisdiction of the court because, for example, it does not present a question of federal law
. . . .” Id. at 358. In contrast, a factual challenge “is an argument that there is no subject matter
jurisdiction because the facts of the case . . . do not support the asserted jurisdiction.” Id. Drawing
this distinction is important because it “determines how the pleading must be reviewed.” Id. at
357-58 (citing In re Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012)). In analyzing
a facial challenge, “the court must only consider the allegations of the complaint and documents
referenced therein and attached thereto . . . .” Constitution Party of Pennsylvania, 757 F.3d at 348
(citing In re Schering Plough Corp. Intron, 678 F.3d at 243). Whereas in considering a factual
challenge to subject-matter jurisdiction, the court “may look beyond the pleadings to ascertain the
facts.” Constitution Party of Pennsylvania, 757 F.3d at 348. Furthermore, in considering a factual
challenge to subject matter jurisdiction, “the plaintiff’s allegations enjoy no presumption of
truthfulness, and [the plaintiff] bears the burden of establishing jurisdiction.” Meehan v. Taylor,
No. CIV. 12-4079, 2013 WL 4517943, at *2 (D.N.J. Aug. 26, 2013) (first citing CNA v. United
States, 535 F.3d 132, 139 (3d Cir. 2008); then citing Mortensen v. First Fed. Sav. ¶ Loan Ass’n.,
549 F.2d 884, 891 (3d Cir. 1977)).
B. Federal Rule of Civil Procedure 12(b)(6)
The adequacy of pleadings is governed by Fed. R. Civ. P. 8(a)(2), which requires that a
complaint allege “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). This Rule “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations omitted); see also Phillips v. Cty. of Allegheny, 515 F.3d
224, 231 (3d Cir. 2008) (stating that Rule 8 “requires a ‘showing,’ rather than a blanket assertion,
of an entitlement to relief”).
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must “accept all
factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to
relief.” Phillips, 515 F.3d at 231 (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7
(3d Cir. 2002)) (internal quotation marks omitted). However, “the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining whether the allegations
in a complaint are “plausible” is “a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. If the “well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct,” the complaint
should be dismissed for failing to “show that the pleader is entitled to relief” as required by Rule
Defendants argue in their Motions that they are entitled to immunity from suit in this Court
pursuant to the Eleventh Amendment. (Dkt. No. 35-4 at 5-24; Dkt. No. 45-1 at 6-11.) As Plaintiff
withdrew his claims against Defendant State of New Jersey, those claims are dismissed. (See Dkt.
No. 52 at 2.) Therefore, this Court must determine whether Defendants NJT and HCPO are entitled
to sovereign immunity under the Eleventh Amendment.
NJT is Entitled to Immunity under the Eleventh Amendment
The Eleventh Amendment states:
The Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI. Although these terms provide states with immunity from private claims
in federal court by citizens of other states, the Supreme Court has held that the Eleventh
Amendment also provides immunity for states from claims by their own citizens. See Pennhurst
States Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). In addition, Eleventh Amendment
immunity extends to entities, such as state departments and agencies, in cases where the “state is
the real party in interest,” because the entity is an arm of the state. Fitchik v. N.J. Transit Rail
Operations, Inc., 873 F.2d 655, 659 (1989) (citing Edelman v. Jordan, 415 U.S. 651, 663 (1974));
Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 545 (3d Cir. 2007), amended on reh’g
(Mar. 8, 2007) (first citing Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); then
citing Pennhurst State Sch. & Hosp., 465 U.S. at 101).
In order to determine whether a defendant-entity in a particular federal case is an arm of
the state such that the state is the real party in interest, courts apply the three-factor test outlined in
Fitchik, 873 F.2d at 659. The three-factor test requires the court to determine: “(1) Whether the
money that would pay the judgment would come from the state . . . ; (2) The status of the agency
under state law . . . ; and (3) What degree of autonomy the agency has.” Id.
In Fitchik, the Third Circuit determined that NJT was not entitled to immunity under the
Eleventh Amendment. Id. at 644. However, in reaching this conclusion, the Third Circuit gave
primacy to the first Fitchik factor (whether the state would pay a judgment against NJT). Id. at
659-60; see also id. at 664 (“The majority reaches this result by relying, in essence, only on its
analysis of . . . the impact of a judgment against [NJT] on the treasury of the State of New Jersey.”)
(Rossen, J., dissenting). The Third Circuit subsequently determined in Benn v. First Judicial Dist.
Of Pa., that this approach was no longer appropriate after the Supreme Court’s holding in Regents
of the Univ. of Cal. v. Doe, 519 U.S. 425 (1997). 426 F.3d 233, 239 (3d Cir. 2005). In other
words, courts “can no longer ascribe primacy to the first [Fitchik] factor.” Id. The reason for
“[this] relegation of financial liability to the status of one factor co-equal with others in the
immunity analysis” is the underlying purpose of Eleventh Amendment sovereign immunity:
[w]hile state sovereign immunity serves the important function of shielding state
treasuries . . . the doctrine’s central purpose is to accord the States the respect owed
them as joint sovereigns . . . . [and to] protect against the indignity of any kind of
Id. at 240 (first citing Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 765 (2002); then
citing Hampe v. Butler, 364 F.3d 90, 97 (3d Cir. 2004)) (internal quotation marks omitted).
As the Third Circuit has not reconsidered its holding regarding NJT since issuing its
decision in Fitchik, this Court must determine whether NJT is an arm of the state when the Fitchik
factors are given equal consideration.
In Fitchik, the Third Circuit found that the first Fitchik factor (whether the state would pay
a judgment against the entity) weighed against NJT being immune under the Eleventh
Amendment, but that the second and third factors (the entity’s status under state law and its degree
of autonomy, respectively) weighed in favor of immunity.
See Fitchik, 873 F.2d at 664.
Specifically, the Fitchik Court found that the funding factor weighed against NJT being entitled to
immunity because, inter alia, NJT is self-insured, NJT can borrow funds, and “NJT’s money does
not come predominantly from the state.” Id. at 660. However, in more recent decisions, the Third
Circuit has held that Eleventh Amendment immunity applies when only two of the three Fitchik
factors weigh in favor of immunity. See Benn, 426 F.3d at 240-41 (holding that the First Judicial
District of Pennsylvania was entitled to immunity even though it was “locally funded”); Bowers,
475 F.3d at 549 (holding that the University of Iowa was entitled to immunity even though the
“State of Iowa [was] not obligated to pay a judgment against the University.”).
In this instance, the second and third Fitchik factors weigh in favor of NJT being entitled
to immunity as an arm of the state. Specifically, New Jersey state law indicates that NJT is “an
instrumentality of the State.” N.J. Stat. Ann. (“N.J.S.A.”) § 27:25-4. New Jersey courts also have
repeatedly held that NJT is a “state agency.” See, e.g., N.J. Transit PBA Local 304 v. N.J. Transit
Corp., 675 A.2d 1180, 1181 (N.J. Super. Ct. App. Div. 1996), aff’d, 701 A.2d 1243 (1997)
(“Defendant [NJT] is a state agency responsible for operating and improving public transportation
in New Jersey.”); see also Davis v. N.J. Transit, No. A-4901-10T1, 2012 WL 3192716, at *3 (N.J.
Super. Ct. App. Div. Aug. 8, 2012) (“NJT is ‘a surrogate of the State . . . .’” (quoting GEOD Corp.
v. N.J. Transit Corp., 678 F. Supp. 2d 276, 288 (D.N.J. 2009))). Furthermore, NJT lacks autonomy
from the state because, in addition to other factors, the Governor has veto power over all NJT
Board decisions under N.J.S.A. § 27:25-4.
Moreover, since the Third Circuit’s holding in Fitchik, this Court has repeatedly found that
NJT is a surrogate of, and lacks autonomy from, the state. See GEOD Corp., 678 F. Supp. 2d at
287-88; Joseph v. N.J. Transit Rail Operations, Inc., No. CIV.A. 12-1600, 2013 WL 5676690, at
*14 (D.N.J. Oct. 17, 2013), aff’d, 586 F. App’x 890 (3d Cir. 2014); Mancini v. N.J. Transit Corp.,
No. 12-CV-5753, 2013 WL 2460342, at *2 (D.N.J. June 5, 2013). 3 In fact, in Karns v. Shanahan,
the U.S. District Court for the District of New Jersey held that NJT is entitled to immunity under
the Eleventh Amendment because two of the three Fitchik factors weigh in that direction. 2016
U.S. Dist. LEXIS 45402, *14 (D.N.J. Mar. 31, 2016).
In light of both the Third Circuit’s holding in Benn that the Fitchik factors must be given
equal consideration, and the fact that two of the three Fitchik factors weigh in favor of Eleventh
Amendment immunity for NJT, this Court finds that NJT is an arm of the state of New Jersey
entitled to Eleventh Amendment immunity.
This Court notes that the cited cases determined that NJT is a surrogate of, and lacks autonomy from, the
State of New Jersey in the context of an “analytically distinct” analysis, i.e., determining whether NJT is a
“person” under 42 U.S.C. § 1983. See Estate of Lagano v. Bergen Cty. Prosecutor’s Office, 769 F.3d 850,
857 (3d Cir. 2014). Therefore, this Court relies on those cases in its immunity analysis only for their
recognition of NJT’s status under state law and NJT’s lack of autonomy, but not for their ultimate
conclusion that NJT is an arm of the state.
HCPO is Entitled to Immunity under the Eleventh Amendment
HCPO argues in its Motion to Dismiss that this Court lacks subject-matter jurisdiction over
Plaintiff’s claims against HCPO because it is entitled to Eleventh Amendment immunity. (Dkt.
No. 45-1 at 6-11.) In response, Plaintiff argues that the county prosecutors’ offices in New Jersey
are entitled to Eleventh Amendment immunity only when they act in a classic law enforcement
role. (See Dkt. No. 52.) However, to determine whether a county prosecutor’s office is entitled
to immunity under the Eleventh Amendment, this Court must apply the Fitchik factors. See Estate
of Lagano, 769 F.3d at 857-58.
The first Fitchik factor, whether the state would pay a judgment against the defendant,
weighs in favor of immunity in this instance because any damages against HCPO for Plaintiff’s
claim would potentially come from the New Jersey Treasury. The New Jersey Supreme Court has
held that “when county prosecutors . . . act in their law enforcement/investigatory capacity, they
act as ‘agents’ and ‘officers’ of the State [such that] the State should be made ‘to respond in
damages’ . . . .” Wright v. State, 778 A.2d 443, 462 (N.J. 2001) (citations omitted). Plaintiff
alleges in his Amended Complaint that officers from HCPO used excessive force in an effort to
stop him. (Am. Compl. at 5 ¶ 14.) Plaintiff adds to these allegations, in his Opposition, that
officers were patrolling Jersey City at the time Plaintiff was assaulted “in enforcement of a curfew
imposed by the Mayor in the aftermath of Hurricane Sandy.” (See Dkt. No. 52 at 2-3.) However,
when law enforcement officers engage in activity like apprehending an individual who was
possibly violating an emergency curfew, they are acting in a classic law enforcement role. See
Wright, 778 A.2d at 461 (stating that the classic law enforcement role includes “investigating
criminal activity and enforcing the law”) (citing Coleman v. Kaye, 87 F.3d 1491, 1505 (3d Cir.
1996)). As HCPO was acting in its “law enforcement/investigatory capacity” the state would
potentially be made “to respond in damages.” See id. at 462. Therefore, the first Fitchik factor
weighs in favor of granting HCPO sovereign immunity.
In addition, the second Fitchik factor (the status of the entity under state law) weighs in
favor of granting immunity because HCPO is a “constitutionally established office” and because
state law vests “the Attorney General and the county prosecutors” with exclusive jurisdiction over
the state’s “criminal business.” See id. at 452 (quoting Coleman, 87 F.3d at 1500) (internal
quotation marks omitted); N.J. Const. art. VII, § 2, ¶ 1; N.J.S.A. § 2A:158-4. Moreover, the third
Fitchik factor (the entity’s degree of autonomy) also weighs in favor of granting HCPO immunity
because New Jersey county prosecutors’ offices do not have substantial autonomy when their
actions involve the enforcement of criminal law. See Wright, 778 A.2d at 464.
Accordingly, in light of the Fitchik factors, HCPO is an arm of the state entitled to
sovereign immunity. See Rouse v. N.J. Dep’t of Health & Human Servs., No. CV 15-01511, 2015
WL 5996324, at *3 (D.N.J. Oct. 13, 2015) (holding that HCPO was entitled to Eleventh
Amendment immunity); Paez v. Lynch, 7-cv-5036, 2009 WL 5171858, *4 (D.N.J. Dec. 23, 2009)
(same); Mikhaeil v. Santos, 10-cv-3876, 2011 WL 2429313, *4 (D.N.J. June 13, 2011) (same).
Plaintiff’s Claims against NJT and HCPO
As Defendants NJT and HCPO are both entitled to immunity under the Eleventh
Amendment, this Court lacks subject-matter jurisdiction over all of Plaintiff’s claims to the extent
that immunity has not been waived or abrogated. Immunity may only be waived or abrogated if
either the state “unequivocally express[ed] consent to suit in federal court,” Hyatt v. Cty. of
Passaic, 340 F. App’x 833, 837 (3d Cir. 2009) (citing Pennhurst, 465 U.S. at 99); or, if Congress
“(1) unequivocally express[ed] its intent to abrogate that immunity; and (2) act[ed] pursuant to a
valid grant of constitutional authority.” Bowers, 475 F.3d at 550. Because the state has not waived
immunity and Congress has not abrogated it regarding any of Plaintiff’s claims, this Court lacks
Plaintiff’s Claims under 42 U.S.C. §§ 1982, 1983, and 1985
The Amended Complaint includes claims against NJT and HCPO under 42 U.S.C. §§ 1982,
1983, and 1985. However, the state has not waived, and Congress has not abrogated, the state’s
immunity regarding claims under any of these statutes. See Quern v. Jordan, 440 U.S. 332, 342
(1979) (holding that 42 U.S.C. § 1983 does not override a state’s Eleventh Amendment immunity);
Rhett v. Evans, 576 F. App’x 85, 88 (3d Cir. 2014) (“Section 1983 does not abrogate states’
immunity . . . .”); Collins v. Sload, 212 F. App’x 136, 140 n.5 (3d Cir. 2007) (“[T]he Eleventh
Amendment barred the suit under [§§ 1983 and 1985] . . . .”); Owens v. Armstrong, No. CV 154911, 2016 WL 1117945, at *6 (D.N.J. Mar. 22, 2016) (“Congress did not expressly abrogate
sovereign immunity when it passed §§ 1983 and 1985 . . . .”); Tariq-Shuaib v. City of Camden,
No. 09-4760, 2011 WL 383857, at *3 (D.N.J. Feb. 3, 2011) (“Plaintiff’s § 1982 claim . . . fails to
meet either exception to state sovereign immunity.”). For that reason, Plaintiff’s claims against
NJT and HCPO under 42 U.S.C. §§ 1982, 1983, and 1985 are dismissed.
The Supreme Court has recognized that 42 U.S.C. § 1983 does not abrogate a state’s
immunity. See Quern, 440 U.S. at 342. However, even if NJT and HCPO were not entitled to
immunity under the Eleventh Amendment, Plaintiff’s § 1983 claims would still fail against both
Defendants because NJT and HCPO are not a “person[s]” under 42 U.S.C. § 1983. Section 1983
states in relevant part:
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). In Will v. Mich. Dep’t of State Police, the Supreme Court
held that a state is not a “person” potentially liable under 42 U.S.C. § 1983. 491 U.S. 58, 64
(1989). In order to determine whether a defendant-entity is an arm of the state such that it is also
not a person within the meaning of § 1983, the Third Circuit applies the Fitchik factors. See
Callahan v. City of Philadelphia, 207 F.3d 668, 670 (3d Cir. 2000). As this Court discussed above,
both NJT and HCPO are entities of the state of New Jersey for purposes of the Eleventh
Amendment. See Karns, 2016 U.S. Dist. LEXIS 45402, at *14 (holding that NJT is entitled to
Eleventh Amendment immunity); Rouse, 2015 WL 5996324, at *3 (holding that HCPO is entitled
to Eleventh Amendment immunity). While recognizing that the Eleventh Amendment and § 1983
determinations are analytically distinct, this Court finds that two of the three Fitchik factors weigh
in favor of NJT being an arm of the state. Therefore, NJT is not a “person” within the meaning of
42 U.S.C. § 1983. See, e.g., Joseph, 2013 WL 5676690, at *14 (holding that NJT is not a person
under § 1983). In addition, New Jersey county prosecutors are not “persons” under § 1983 when
engaging in classic law enforcement activity and, therefore, HCPO is also not a “person” within
the meaning of 42 U.S.C. § 1983 for the purposes of Plaintiff’s claim. See Estate of Lagano, 769
F.3d at 855. Therefore, even if NJT and HCPO were not entitled to sovereign immunity, Plaintiff’s
§ 1983 claims would fail because HCPO and NJT are not “person[s]” under § 1983.
In addition, Plaintiff also failed to state claims under 42 U.S.C. §§ 1982 and 1985. Insofar
as HCPO and NJT are not persons under § 1983, they are also not persons potentially liable under
§ 1985. See Estate of Lagano, 769 F.3d at 854. Moreover, Plaintiff’s § 1985 claim states that
“Defendants conspired against Plaintiff to deprive him of equal protection . . . .” (Am. Compl. 8
¶ 2.) However, to state a claim for conspiracy to deprive a person of his rights or privileges under
§ 1985(3), a Plaintiff must allege that the conspiracy was “motivated by ‘some racial, or perhaps
otherwise class-based, invidiously discriminatory animus.’” Mendez v. N.J. State Lottery Comm’n,
532 F. App’x 41, 45 (3d Cir. 2013) (quoting Farber v. City of Paterson, 440 F.3d 131, 135 (3d
Cir. 2006)) (internal quotation marks omitted). Plaintiff’s Amended Complaint does not allege
such a motivation and, therefore, fails to allege sufficient facts to state a claim under § 1985.
Similarly, Plaintiff’s § 1982 claim is also deficient because § 1982 “outlaw[s] racial discrimination
. . . . [and Plaintiff] has not alleged that he is a racial minority or that the [D]efendants’ alleged
misconduct was racially motivated.” See Miller v. Pocono Ranch Lands Prop. Owners Ass’n Inc.,
557 F. App’x 141, 144 (3d Cir. 2014) (citing Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d
Plaintiff’s Claims under State Law
Plaintiff’s claims under New Jersey law are also barred because Defendants are entitled to
immunity under the Eleventh Amendment and neither the state nor Defendants have waived that
This Court lacks subject-matter jurisdiction over Plaintiff’s claims under the NJCRA
because NJT and HCPO are entitled to Eleventh Amendment sovereign immunity. See LopezSiguenza v. Roddy, No. CIV. 13-2005, 2014 WL 1298300, at *7 (D.N.J. Mar. 31, 2014)
(dismissing NJCRA claims as barred by sovereign immunity); Endl v. New Jersey, 5 F. Supp. 3d
689, 697 (D.N.J. 2014) (same). Moreover, liability under the NJCRA is, as under 42 U.S.C. §
1983, dependent on the defendant being a “person.” See Estate of Lagano, 769 F.3d at 856-57;
Lopez-Siguenza, 2014 WL 1298300, at *7 (“Courts in this District have consistently interpreted
the NJCRA as having incorporated [the Supreme Court’s analysis of the term “person” in the
context of 42 U.S.C. § 1983].”) As NJT and HCPO are not persons within the context of 42 U.S.C.
§ 1983, it follows that they are also not persons potentially liable under the NJCRA. Therefore,
even if NJT and HCPO were not immune under the Eleventh Amendment, Plaintiff’s NJCRA
claims would fail.
Finally, Plaintiff has provided this Court with no basis to find that it has subject-matter
jurisdiction over Plaintiff’s claims for deliberate indifference, recklessness, negligence, assault,
battery, and intentional misconduct. In particular, this Court notes that the New Jersey Tort Claims
Act “does not expressly consent to suit in federal courts and thus is not an Eleventh Amendment
waiver.” Hyatt, 340 F. App’x at 837 (citing N.J.S.A. § 59:2-2(a)). Accordingly, Plaintiff’s tort
claims are barred by Defendants’ sovereign immunity.
For the reasons set forth above, Defendants’ Motions to Dismiss are GRANTED. An
appropriate order follows.
s/ Susan D. Wigenton
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
Magistrate Judge Leda D. Wettre
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