CARRINGTON v. CITY OF JERSEY CITY et al

Filing 126

OPINION. Signed by Judge Esther Salas on 5/2/2019. (sms)

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PHILIP CARRINGTON,
Plaintiff,
v.
CITY OF JERSEY CITY, et al.,

Defendants.

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Civil Action No. 15-7030 (ES) (SCM)
OPINION

SALAS, DISTRICT JUDGE
Before the Court are supplemental briefs in support of Defendants City of Jersey City (the
“City”); Jersey City Council (the “City Council”); Officers N. Gerand, S. Collier, Sean Mullahey,
Ramon Peguero, Hennessy, Comandatore; Seargent James Crecco; Jersey City Internal Affairs
Unit; Police Director James Shea, Mary McLeod Bethune Life Center (“Bethune Center”) Director
Alvin Pettit; and Assistant Corporate Counsel Josh Hallana’s (together “Defendants”) motion for
summary judgment (D.E. No. 98) and pro se Plaintiff Philip Carrington’s (“Plaintiff”) crossmotion for summary judgment (D.E. No. 100). (D.E. Nos. 118–21). The Court decides this matter
without oral argument. Fed. R. Civ. P. 78(b); L. Civ. R. 78.1(b). For the reasons that follow, the
Court GRANTS Defendants’ motion for summary judgment and DENIES Plaintiff’s cross-motion
for summary judgment.
I.

Background
The Court previously recounted the facts and procedural history of this matter. (See D.E.

No. 114 at 1–5). 1 As a result, the Court assumes the parties’ familiarity with the same and intends
this memorandum to be read in conjunction with the Court’s prior Opinion and Order. (See
generally D.E. Nos. 114 & 115).
Previously, the Court granted summary judgment in favor of Defendants as to Plaintiff’s
claims arising from the 2011 and 2014 Summonses. (D.E. No. 114 at 16). The Court also denied
Plaintiff’s cross-motion for summary judgment on these same claims. (Id.). Defendants had also
moved for summary judgment on Plaintiff’s remaining claims that Defendants had unlawfully
evicted his day-care center, the Remarkable Mossi Youth Council (the “Remarkable Mossi”), from
the Bethune Center because of Plaintiff’s race and nationality. (D.E. No. 98-2 at 28). Particularly,
Defendants asserted that these claims were barred by res judicata. (Id.). Because Defendants
failed to fully brief all elements of the res judicata doctrine, the Court reserved its determination
on the parties’ motions relating to Plaintiff’s claim of unlawful eviction from Bethune Center.
(D.E. No. 114 at 15–16). The Court ordered the parties to submit supplemental briefing on the res
judicata issue, as well as any other arguments relevant to the eviction claims. (D.E. No. 115). The
parties filed supplemental briefing soon thereafter. (See D.E. Nos. 118–21).
II.

Legal Standard
A court shall grant summary judgment under Federal Rule of Civil Procedure 56 “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits . . . show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). The mere existence of an alleged disputed fact is not enough. Id. Rather, the opposing
party must prove that there is a genuine issue of a material fact. Id. at 248.
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All pincites to documents on the Docket refer to the CM/ECF pagination generated on the upper-right hand

corner.

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An issue of material fact is “genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. at 248. A fact is “material” if under the governing
substantive law, a dispute about the fact might affect the outcome of the lawsuit. Id. Factual
disputes that are irrelevant or unnecessary will not preclude summary judgment. Id.
On a summary judgment motion, the moving party must first show that no genuine issue
of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts
to the nonmoving party to present evidence that a genuine issue of material fact compels a
trial. Id. at 324. To meet its burden, the nonmoving party must offer specific facts that establish
a genuine issue of material fact, not just “some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Thus, the nonmoving party cannot rely on unsupported assertions, bare allegations, or speculation
to defeat summary judgment. See Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252
(3d Cir. 1999). The Court must, however, consider all facts and their reasonable inferences in the
light most favorable to the nonmoving party. See Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d
Cir. 1995).
III.

Analysis
In his supplemental briefing Plaintiff maintains that his day care business, Remarkable

Mossi, was illegally evicted from the Bethune Center because of his race and nationality. (See
D.E. No. 118 (“Pl.’s Supp. Br.”) at 10; D.E. No. 121 (“Pl.’s Supp. Opp.”) at 5–8). Plaintiff asserts
that Defendants violated 42 U.S.C. § 1983 and the New Jersey Law Against Discrimination,
N.J.S.A. 10:5-4 (“NJLAD”). (See Pl.’s Supp. Br. at 10; Pl.’s Supp. Opp. at 6–8). 2

2
Although it appears that these claims are primarily directed against defendants Pettit and Hallanan (see, e.g.,
Pl.’s Supp. Br. at 4), Plaintiff also appears to argue that all “Defendants” violated Section 1983 and NJLAD (see Pl.’s
Supp. Br. at 10; Pl.’s Supp. Opp. at 6–8; see also D.E. No. 1 ¶ 53 & 67). Thus, the Court assumes Plaintiff asserts
these claims against all Defendants.

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In their supplemental briefing, Defendants withdraw their res judicata defense. (See D.E.
No. 119 (“Defs.’ Supp. Br.”) at 5, n.1). Instead, Defendants assert that Plaintiff’s claims fail
because Plaintiff cannot establish that his eviction was unlawful and because he has failed to
provide any evidence that Defendants engaged in any discriminatory conduct that deprived
Plaintiff of any rights. (Defs.’ Supp. Br. at 5–6). As explained below, the Court agrees with
Defendants.
Unlawful Discrimination in Violation of 42 U.S.C. § 1983.

Plaintiff asserts that

Defendants violated his Fourteenth Amendment right to equal protection under the law. (Pl.’s
Supp. Br. at 10). “To bring a claim under § 1983 for the denial of equal protection based on race
[or national origin], a plaintiff must show: (1) he is in a protected class; (2) the defendant acted
under the color of state law; and (3) the defendant treated the plaintiff differently because of his
race, or, put differently, acted with a racially discriminatory intent or purpose. One way a plaintiff
can prove that a state actor acted with discriminatory intent is by showing that the plaintiff
‘receiv[ed] different treatment from that received by other individuals similarly situated.’”
Johnson v. Fuentes, 704 F. App’x 61, 65 (3d Cir. 2017) (internal citations omitted); see also
Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 196 (3d Cir. 2009).
“Persons are similarly situated under the Equal Protection Clause when they are alike ‘in all
relevant aspects.’” Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008) (quoting Nordlinger
v. Hahn, 505 U.S. 1, 10 (1992)).
Here, Plaintiff’s Section 1983 claim fails because he has not provided any evidence from
which a reasonable factfinder could conclude that Defendants purposefully discriminated against
him because of his race or nationality. Plaintiff’s primary contention is that Defendants unlawfully
evicted his business because of his race and nationality. (See Pl.’s Supp. Br. at 4). However, the
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record demonstrates that Defendants evicted the Remarkable Mossi because it owed rent. (See
D.E. No. 108-16). The undisputed evidence shows that pursuant to City Council Resolution 05556, dated July 13, 2005 (the “Resolution”), Remarkable Mossi was permitted to rent a room at
the Bethune Center from July 1, 2003 to August 31, 2005. (See D.E. Nos. 98-6 & 98-13; D.E. No.
100-1 ¶¶ 19, 22–23). Under the Resolution, Remarkable Mossi’s rent was set at $1,343.76 per
month. (See D.E. No. 98-6). There is also no dispute that Plaintiff operated the Remarkable Mossi
out of the Bethune Center between September 1, 2005 and January 4, 2016 (see D.E. No. 100-1 ¶
18), which amounts to 124 months. Further, although the Resolution only covered the period of
July 1, 2005, to August 31, 2005, it is axiomatic under New Jersey law that “when a tenant
continues to occupy a premises after the termination of a lease, his status becomes that of a monthto-month holdover tenant,” and that “[t]he rights and duties of such a holdover tenant are governed
by the terms of the expired lease, absent a contrary agreement.” Newark Park Plaza Assocs., Ltd.
v. City of Newark, 547 A.2d 1163, 1164 (N.J. Law. Div. 1987). Thus, Remarkable Mossi was
required to pay a total of approximately $166,626.24 during the period between September 1, 2005
and January 4, 2016.
Plaintiff asserts that Remarkable Mossi was up to date on its rent. (Pl.’s Supp. Br. at 11).
Plaintiff provided copies of 53 checks dated between August 13, 2005 and November 17, 2015, as
evidence of that he had paid the rent. (See D.E. No. 100-3 at 19–32). Of these checks, 36 are for
$1,343.76, four are for amounts ranging between $2041.28 and $4031.28, one is for $1,350.00,
one for $125.00, and the remaining 11 are for amounts ranging from $9.76 to $65.75. (Id.). These
checks total approximately $62,055.28. Thus, even assuming Defendants actually cashed these
checks—and the record contains evidence indicating that some of the checks may have been
declined for insufficient funds (see, e.g., D.E. No. 108-16)—Remarkable Mossi still owed
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approximately $104,570.96 in back rent.
Plaintiff also contends that the Remarkable Mossi’s rent was covered by federal grants
from the U.S. Department of Housing and Urban Development.

(Pl.’s Supp. Br. at 8–9).

Particularly, he appears to assert that Remarkable Mossi received an annual Community
Development Block Grant (“CDBG”) of approximately $16,000, which was paid to the City. (See
id. at 8). He contends that “Larry Bembry Director of the Grants Administration Division accept
[sic] the fact that plaintiff met all the rental requirements and set plaintiff[’s] rental rate at
$16,121.52 annually (or $1,343.46 per month) compatible with plaintiff[’s] CDBG grant from his
office which would assure that the City rent will always be covered using Plaintiff[’s] grant as
collateral.” (Id.). As evidence, Plaintiff provides a single letter dated July 12, 2007 and signed by
Darice Toon, Director of the Division of Community Development. (Id. at 13).
Placing aside that this letter covers only a one-year period and says nothing about the
remaining period between 2005 and 2016, the letter simply fails to support Plaintiff’s contentions.
First, the letter does not even reference Mr. Bembry or the alleged agreement. (See id.). 3 Second,
although this letter is addressed to Plaintiff and it states that “your agency has been authorized to
receive $16,000 in [CDBG] funds,” the letter is regarding something called “Greenville
Connection.” (See id.). Plaintiff does not explain what connection, if any, Greenville Connection
has with Remarkable Mossi. (See generally Pl.’s Supp. Br.; Pl.’s Supp. Opp.; D.E. No. 100-2).
Indeed, the letter contains no reference to Remarkable Mossi or that the grant funds can be used
to pay Remarkable Mossi’s rent at the Bethune Center. (See Pl.’s Supp. Br. at 13). Third, the
letter instructs Plaintiff that he must file certain documents within the specified period in order to
obtain the funds, and that any request must be approved by the Division of Community
3

To be sure, nothing in the record appears to even suggest that Mr. Bembry had any authority to enter into a
lease on behalf of the City, let alone that Mr. Bembry had any involvement with the Bethune Center.

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Development. (Id.). Plaintiff provides no evidence that he ever filed the required documents, that
he did so within the specified period, that he requested that the funds be used to pay Remarkable
Mossi’s rent, or that the Division of Community Development ever approved or denied such a
request. (See generally D.E. Nos. 100, 118 & 121). Thus, Plaintiff’s bare assertions that
Remarkable Mossi’s rent was covered by federal grants is unsupported by the record.
Confusingly, Plaintiff also contends that the Remarkable Mossi paid the City $91,031.17
between June 2005 and December 31, 2015. (Pl.’s Supp. Br. at 4). He contends that this amount
constitutes an overpayment of $73,143.67, which is owed to him. (Id.). But Plaintiff provides no
citation to the record that would support any of these assertions, and the Court has found none. 4
At the summary judgment stage a party must provide “more than just ‘bare assertions, conclusory
allegations or suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv.,
409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325 (1986)).
Lastly, Plaintiff suggests that a newer lease replaced the 2005 Resolution. (D.E. No. 1002 at 13; Pl.’s Supp. Br. at 11). While Plaintiff produced a lease agreement dated June 5, 2005,
under which the City allegedly leased the room to Remarkable Mossi at a monthly rate of $100 for
a period of 15 years, this document is not signed by either the City or anyone authorized to act on
behalf of the City. (See D.E. No. 100-3 at 11–16). Rather, Plaintiff testified that he filled in the
blank spaces in this agreement, and that he did not have any evidence showing that the agreement
was ever signed by the City or that the City accepted its terms. (See D.E. No. 98-16 (“Carrington

4
In his supplemental opposition, Plaintiff asserts that “Defendant admits in a letter dated March 7, 2017 [that]
they received $91,031.00 in rental checks from Plaintiff” and that they also received “approximately $160,000” in
HUD grants meant for the Remarkable Mossi, and therefore, this “indicates [that Plaintiff’s] rent was current.” (Pl.’s
Supp. Opp. at 7). But as far as the Court can tell, the record contains only one letter dated March 7, 2017, which was
sent by Plaintiff to Defendants in order to amend Plaintiff’s Rule 26 disclosures. (See Pl.’s Supp. Br. at 17). The
Court is unsure just how Plaintiff can conclude that a letter he prepared is evidence that Defendants admitted to
anything.

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Dep.”) at 71:1–6; 72:13–73:11; 74:9–20; 81:12–18; 82:5–12; 87:1–24; 88:4–23; 91:2–16; 96:1–
24; see also D.E. No. 108-2). 5 Moreover, none of the 53 lease payment checks provided by
Plaintiff demonstrate a single monthly lease payment of $100. (See D.E. No. 100-3 at 19–32).6
Thus, nothing in this record supports Plaintiff’s assertion that Remarkable Mossi and the City
entered into a new lease agreement.
In his supplemental opposition, Plaintiff provides a list of several “undisputed” instances
of alleged unequal treatment and discrimination against him. (Pl.’s Supp. Opp. at 6–8). But this
alleged discriminatory activity is not supported by the record. For instance, Plaintiff first asserts
that only he was forced to provide proof that Remarkable Mossi is a 501(c)(3) nonprofit
organization. (Id. at 6). For evidence, Plaintiff states that “Discovery and Defendant Alvin Pettit
Transcript pg. 122 line 19, proved the only person who was force to produce a 510C(3) [sic] was
plaintiff.” (Id.). However, Plaintiff cites to nothing in the record indicating that he was ever
required to provide evidence of Remarkable Mossi’s 501(c)(3) status in order to rent the room at
Bethune Center. (See id). And further, neither the cited portion of Pettit’s deposition, nor any
other part of it for that matter, supports Plaintiff’s assertion. (See D.E. No. 121-1 (“Pettit Dep.”)
122:11–19 (testifying only that that he was not sure whether a specific tenant running a martial
arts studio was a non-profit entity); see also generally id.)
Plaintiff’s next asserts that he was allegedly required to have “$1.5 Million dollars of

5

Plaintiff also provides another unsigned license agreement apparently dated June 27, 2005. (D.E. No. 100-3
at 7–10). This agreement states, among other things, that “Licensee shall pay the City a user fee equal to the sum of
$100 or 1,343.75 per month.” (Id. at 7). Plaintiff asserts that this agreement became the Resolution. (Pl.’s Supp. Br.
at 8). But as Plaintiff himself testified, the terms of this purported agreement are different from the terms of the
Resolution. (See Carrington Dep. 71:17–25). Further, as with the other agreement, Plaintiff testified that he had no
evidence to prove that the City ever signed or approved the terms of this agreement. (See id. 64:6–9; 87:20–88:3;
96:19–14; see also D.E. No. 108-2).
6

In his supplemental opposition, Plaintiff states that he decided “to give one check each year for approximately
$1,200 to satisfy the new agreement.” (Pl.’s Supp. Opp. at 8). But again, neither the checks provided by Plaintiff,
nor anything else in this record, supports this assertion. (See D.E. No. 100-3 at 19–32).

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insurance on their rental space and $1.0 Million on the play ground.” (Pl.’s Supp. Opp. at 6).
Plaintiff asserts that in 2013 Pettit shut down the playground because “none of the other tenants
had any insurance” and that the playground was reopened after Plaintiff proved “he had 3.0 million
dollars of insurance.” (Id. at 6–7). But Plaintiff provides no citations to any evidence in the record
for support, and even assuming such evidence exists, nothing in this statement indicates that
Plaintiff was treated any different than the other tenants because of Plaintiff’s race or nationality.
Plaintiff next argues that Defendants’ brief asserts that the unsigned June 5, 2005 lease
allegedly provided to Plaintiff in order to replace the Resolution “must be approved by the council
as a resolution to be valid.” (Pl.’s Supp. Opp. at 7). He claims that Pettit testified that no other
tenant had a resolution for their lease. (Id. (citing Pettit Dep. at 121:22 & 122:21)). However,
Plaintiff mischaracterizes Defendants’ argument. Defendants do not argue that for the lease to be
valid it had to be approved by a City Council resolution. Rather, Defendants only state that
Plaintiff failed to provide any evidence that the City, or anyone authorized to act on behalf of the
City, ever signed or approved the alleged lease replacing the 05-556 Resolution. (See Defs.’ Supp.
Br. at 12–13). Moreover, although Pettit testified that, like Plaintiff, other tenants do not have a
current lease, Pettit repeatedly testified that the one differentiating factor between Plaintiff and the
other tenants is that unlike Plaintiff, the other tenants are up to date on their rent. (See, e.g., Pettit
Dep. 122:7-9; 123:11-13).
Plaintiff also contends that other tenants pay less rent for similarly sized rooms. (Pl.’s
Supp. Opp. at 7). But Plaintiff fails to provide any evidence that would support the inference that
Defendants imposed a different rent on Plaintiff because of his race or nationality. Rather, as
stated earlier, the rent amount of $1,343.76 stems from the Resolution, which was apparently
reached through an agreement between Plaintiff and the City. And nothing in the record suggests
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that the rent amount set by the Resolution has any connection with Plaintiff’s race or nationality.
In fact, Plaintiff himself argues that the amount of the rent was meant to match the amount of the
CDBG grant. (See Pl.’s Supp. Br. at 8). Nor does Plaintiff provide any evidence that would
support the inference that Defendants impose a lower rent on the other tenants because of their
race or nationality.
Plaintiff next takes issue with how the January 4, 2016 eviction was conducted. (Pl.’s
Supp. Opp. at 7). He alleges that “Defendant came at 1:10pm while the babies were in their cribs
sleeping, with five police officers, the lock smith, Defendant Pettit and his handy man, Attorney
John Hallanan, the Sheriff and a movie camera, in other words it was an embarrassing theater.”
(Id.). Plaintiff then asserts that on “October 2015 Nichole Johnson an African American according
to counsel, was evicted from the Bethune Center” and that she was “told to get her children, parent
and staff out of her room before the sheriff arrived.” (Id. at 7–8). But Plaintiff again provides no
citation to anything in the record to support these claims. (See id.). And even assuming these
claims are supported by the record, Plaintiff does not explain how it shows different treatment on
account of his nationality or race. 7 (See id.). Rather, he testified that none of the Defendants used
racial slurs or made any comments about his nationality in connection with the eviction, and that
he did not have any evidence that Defendants had ever engaged in acts of racism against him.
(Carrington Dep. 168:20–169:1; 175:1–15).
In short, Plaintiff has provided essentially no evidence to support his discrimination claims.

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Plaintiff also contends that Defendants posted eviction notices listing other day care centers in order to
humiliate and harass Plaintiff because of his race and nationality. (See Pl.’s Supp. Br. at 5–6; Pl.’s Supp. Opp. at 6).
But as with the rest of his briefing, Plaintiff provides nothing to substantiate this assertion. (See id.). The record
indicates that the eviction notices contained no language about Plaintiff’s race or nationality. (See D.E. No. 100-3 at
37–38). Rather, the notices stated that Remarkable Mossi was no longer permitted to operate its business at the
Bethune Center and listed other day care centers for any inconvenience associated with Remarkable Mossi’s eviction.
(See id.) Indeed, the notices expressly state that the City did not recommend or endorse any of the listed centers. (Id.
at 38).

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At most, Plaintiff provides his own subjective, unsupported belief that he suffered discrimination.
But a “subjective belief of discrimination, however genuine, [cannot] be the basis of judicial
relief.” See Barker v. Our Lady of Mt. Carmel Sch., 2016 WL 4571388, at *11 (citing Elliott v.
Group Med. & Surgical Serv., 714 F.2d 556, 567 (5th Cir. 1983). Consequently, no reasonable
factfinder could conclude that Defendants violated Plaintiff’s right to equal protection. Therefore,
Plaintiff’s Section 1983 claim fails. See Chambers, 587 F.3d at 197. Accordingly, the Court grants
Defendants’ motion for summary judgment and denies Plaintiff’s cross motion.
Violation of the NJLAD. NJLAD provides that it shall be unlawful “[f]or any ... public
accommodation directly or indirectly . . . to discriminate against any person . . . on account of the
race, creed, color, national origin, ancestry . . . or nationality of such person . . . ” N.J.S.A. 10:512(f)(1); see also Villari v. Township of Wall, No. 06-0004, 2009 WL 2998135, *13 (D.N.J. Sept.
15, 2009) (citing Ptaszynski v. Uwaneme, 853 A.2d 288, 296 (N.J. Super. App. Div. 2004)).
“Under the NJLAD a plaintiff must show that (1) defendant operates a place of public
accommodation; (2) the plaintiff is a member of a protected class; and (3) he or she was denied
equal treatment on the basis of his or her membership in a protected class.” Dasrath v. Cont’l
Airlines, Inc., No. 02-2683, 2006 WL 372980, at *3 (D.N.J. Feb. 16, 2006) (citing N.J.S.A. 10:512(f)(1)).
Here, Plaintiff alleges that he was denied the opportunity to obtain lawful income when
Defendants illegally evicted him based on his race and national origin. (Pl.’s Supp. Opp. at 8).
Plaintiff’s NJLAD claim fails for substantially the same reasons stated above. Particularly, on this
record there is no genuine issue of material fact. As discussed above, the evidence overwhelmingly
shows that Remarkable Mossi was evicted because it owed rent, not because of Plaintiff’s race or
nationality. Further, there is no evidence that Defendants refused to provide him with a lease or
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license to occupy the Bethune Center because of his race or nationality. As with his Section 1983
claim, no reasonable factfinder could conclude that Plaintiff was denied equal treatment on the
basis of his race or national origin. See Dasrath, 2006 WL 372980, at *3. Accordingly, the Court
grants Defendants’ motion and denies Plaintiff’s cross-motion for summary judgment on
Plaintiff’s claims of unlawful eviction under the NJLAD.
IV.

Conclusion
For the foregoing reasons, the Court GRANTS Defendants’ motion on Plaintiff’s unlawful

eviction claims, and DENIES Plaintiff’s cross-motion for summary judgment on these claims. An
appropriate Order accompanies this Opinion.
s/Esther Salas
Esther Salas, U.S.D.J.

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