FERNANDEZ et al v. CITY OF JERSEY CITY et al

Filing 10

OPINION. Signed by Judge Kevin McNulty on 6/27/2017. (JB, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CARLOS FERNANDES and JEAN
NEIMILLER,

Civ. No. 2:16-cv--07789-KM-JBC

Plaintiffs,

OPINION

vs.
CITY OF JERSEY CITY, JERSEY CITY
OFFICE OF CONSTRUCTION CODE
OFFICIAL, JERSEY CITY HISTORIC
PRESERVATION COMMISSION,
JERSEY CITY POLICE DEPARTMENT,
STEVEN M. FULOP, ANTHONY B.
LEWIS, JOHN AND JANE DOES (120), AND ABC CORPORATIONS (1-20)
Defendants.

KEVIN MCNULTY, U.S.D.J.:
The plaintiffs, Carlos Fernandez and Jean Neimiller, bring this
action against the City of Jersey City and various officials. The Complaint
alleges that the plaintiffs obtained a construction permit and began
remodeling work on their home, but that the City halted work, saying
that they had not obtained a required approval from the Historic
Preservation Commission. When work ceased, siding had already been
removed from the home, resulting in weather damage. When Fernandes
complained about the situation, City officials allegedly defamed and
falsely arrested him.
Before the Court is the defendants’ motion (ECF No. 6) to dismiss
the complaint for failure to state a claim upon which relief may be
granted, pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth
below, the motion to dismiss is granted in part and denied in part.

1

I.

BACKGROUND
A. Plaintiffs’ Interrupted Remodeling Efforts’
Plaintiffs are a married couple who own and reside at a home (the

“Property”) located in the West Bergen-East Lincoln Park Historic District
neighborhood of Jersey City, New Jersey. (Compi. ¶j 1, 14) Named as
defendants are four municipal entities: the City of Jersey City (“Jersey
City” or the “City”), the Jersey City Office of Construction Code Official
(the “Building Department”), the Jersey City Historic Preservation
Commission (the “HPC”), and the Jersey City Police Department (the
2
“PD”). Also named as defendants are Jersey City Mayor Steven M. Fulop
The following facts are taken from the complaint and assumed to be true
for purposes of deciding the defendants’ motion to dismiss. Certain record items
repeatedly cited are abbreviated as follows:
1

Compi.

=

Complaint, ECF No. 1

Br. = Defendants’ Memorandum of Law in Support of Their Motion to
Dismiss Plaintiffs’ Complaint Pursuant to Fed. R. Civ. P. 12(b)(6), ECF No. 6
Opp. = Plaintiffs’ Memorandum of Law in Opposition to Defendants’
Motion to Dismiss Plaintiffs’ Complaint Pursuant to Fed. R. Civ. P. 12(b)(6), ECF
No. 8-1, Ex. A
Reply
ECF No. 9

=

Letter Brief of the Defendants in Reply to Plaintiffs Opposition,

Of these four, at least the PD is not a proper defendant, as it is only an
instrumentality of municipal government and therefore not an entity that can
sue and be sued in its own right. See Hussein v. New Jersey, 403 F. Appx 712,
716 (3d Cir. 2010) (non-precedential) (affirming dismissal of the Jersey City
Police Department because “a municipal police department is not an entity
separate from the municipality” (citing N.J. Stat. Ann. § 40A: 14—118));
Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 (3d Cir. 1997) (“[W]e treat the
municipality and its police department as a single entity for purposes of section
1983 liability.”); Cordial v. Ati. City, No. 1:1 l-CV-01457 RMB, 2014 WL
1095584, at *9 (D.N.J. Mar. 19, 2014) (“A municipal department and the
municipality itself are not deemed separate legal entities under the law, and
therefore cannot both be named as parties to an action.”).
2

The defendants claim the HPC is not a separate entity from the Building
Department. (Br. 1) Whether this is so and whether the Building Department is
a separate legal entity from Jersey City may depend on whether the entities
were created under New Jersey statute or Constitution or only by local
municipal ordnance—an issue the parties do not address and which I do not
reach on this motion. See, e.g., Von Rhine v. Camden Cty. Sherzfj’s Office, No.
CIV. 09-6093 JBS/AMD, 2012 WL 3776026, at *9 (D.N.J. Aug. 29, 2012)
2

and Police Officer Anthony B. Lewis.
On July 20, 2015, Power Home Remodeling Group, Inc. (“Power
HRG”), a remodeling contractor, applied to the Building Department for a
permit to remove wood siding and install vinyl siding on the Plaintiffs’
Property. (Id.

¶J

15—16) On August 11, 2015, the Building Department

issued a construction permit. (Id.

¶

17) On August 25, 2015, Power HRG

commenced removing the wood siding from the Property.
On August 28, 2015, officials from the Building Department and
HPC (including Brian Blaziak, Raymond Meyer, and Dan Wrieden, who
are not named as defendants) arrived at the Property and directed Power
HRG to stop working. Those officials claimed that Power HRG lacked
authorization to perform the work. (Compl.

¶J

20—21) Jersey City Police

officers also arrived at the Property that day and, unprovoked,
threatened to arrest Fernandes. (Id.

¶

22) The officials gave no

explanation for their demands at the time.
Several days later, on September 3, 2015, the Building Department
issued a formal “Stop Work Order.” That Order cited Plaintiffs’ failure to
obtain the HPC’s approval before renovating the Property. (Id.

¶

23)

Power HRG stopped its work, leaving three quarters of the Property
without siding. Because the Building Department also prohibited the
Plaintiffs from covering their home by other means, the walls remained
(reasoning that “a county sheriffs office’s capacity to be sued is not necessarily
analogous to a municipal police departments capacity to be sued, as the office
of the sheriff, under New Jersey law, is a constitutionally created office whereas
a municipal police department is created only by local municipal ordinance.”);
cf Trinity Res., Inc. v. Twp. of Delanco, 842 F. Supp. 782, 793 (D.N.J. 1994)
(“The position of Construction Official is mandated by the Construction Act and
is regulated for licensing purposes by the New Jersey Department of
Community Affairs.”).
Nevertheless, the Complaint fairly supports a reading of all claims
against the PD, the Building Department, and the HPC as claims intended
solely against Jersey City. I will treat them as such. Therefore, the clerk will be
directed to drop the Building Department, the HPC, and the PD from the
caption. The correction is technical; the substance of the Plaintiffs’ claims is not
affected.
3

exposed. (Id. ¶j 24, 29)
Fernandes sought an explanation, but “Jersey City refused to
provide any answers to the Plaintiffs and refused to acknowledge that a
permit had been issued.” (Compl.

¶J

25—26) In October 2015, through

their counsel, Plaintiffs contacted Jeremey Farrell, Corporation Counsel
for Jersey City (and counsel of record for all defendants in this action).
Farrell recommended that Plaintiffs’ counsel contact James LaBianca,
counsel for the “Planning Board” and the HPC. (Id.

¶

27) Plaintiffs’

counsel did so, e-mailing LaBianca to ask whether Plaintiffs could cover
their home to protect it against oncoming winter weather. (Id.

¶

28)

LaBianca responded by offering to meet with Plaintiffs’ counsel, copying
Building Department officials on his e-mail. (Id.

¶

30) Days later,

however, LaBianca wrote to Plaintiff’s counsel stating “HP[CJ has no
objection to your client installing temporary but sufficient, long-lasting
preservation measures to protect the property, including the installation
of Tyvek or some other proper board material.” (Id.

¶

32) Thereafter,

LaBianca did not respond to the requests of Plaintiffs’ counsel to arrange
a meeting, or to his requests for further clarification as to what types of
preservation measures and board materials the HPC would allow. (Id.

¶J

33—34)
Plaintiffs covered the Property with a plastic tarp. (Compi.

¶

35)

“Despite those efforts, the Property suffered substantial damage,
including but not limited to water damage

.

.

.

.“

(Id.

¶

36) Afterward, the

Plaintiffs decided to take no further action until warmer weather arrived,
so that the Property could dry out and the damage could be assessed.
(Id. 38)
B. Alleged Disparate Treatment
The Plaintiffs allege that other property owners on their street have
made alterations to their properties without obtaining permits or HPC
authorization. These alterations have included disfavored ones, like vinyl

4

siding, and prohibited ones, like metal frame windows. (Compi.

¶

38) One

couple on their street were allowed to alter their property without HPC
approval, allegedly because they “were married by Mayor Fulop and...
were significant supporters of Mayor Fulop’s campaign.” (Id.)
C. The Plaintiffs’ Attendance at Public Meetings
In January 2016, Plaintiffs began attending City Council meetings,
as well as public meetings that Mayor Fulop organized throughout Jersey
City. (Compi.

¶

40) Fernandes spoke at these meetings about the

condition of his Property and “the intimidation and disrespectful
treatment he and his wife suffered at the hands of” the defendants. (Id.

¶

41) After one such meeting, Jersey City Council President Rolando
Lavarro “accosted Mr. Fernandes and demanded Fernandes meet with
him the next day.” (Id.

¶

42) On January 29, 2015, Fernandes and his

counsel met with Lavarro, who promised to assist the Plaintiffs but never
did so. (Id.

¶

43)

During a February 3, 2016 public meeting, although Fernandes
“was not causing any disturbance,” PD officers in plain clothes “forcibly
grabbed [him] by the arms, lifted him from his feet” and removed him
from the meeting “at the behest of Mayor Fulop.” One of the PD officers
involved was defendant Lewis. (Compi.

¶J

44—46, 87)

A February 8, 2016 letter from Plaintiffs’ counsel to Jeremey
Farrell followed. In that letter, Plaintiffs’ counsel included an Open Public
Record Act (“OPRA”) request for the names of the officers who had
removed Fernandes and an explanation for the removal. (Id.

¶

47) The

letter reported that Fernandes had been physically injured and that both
Plaintiffs had suffered emotional injury. Additionally, the letter stated:
Mayor Fulop made several untrue statements to
the audience in attendance when asked why he
had Mr. Fernandes removed. First, it is untrue
that my client attended “every single one of these
meetings”; as Mayor Fulop stated. It is untrue
that my client made a “disruption for twenty to

5

thirty minutes” or “five to ten minutes” at any
meeting. The City never “cited for violations” his
property. To date, Mr. Fernandes has not
received any notice of any violations against his,
his wife or their property. The Mayor should
recant these slanderous. [sic]
Mr. Fernandes has every right to attend any and
every public meeting held by Mayor Fulop and
he will continue do so. There is no basis in law
or in fact to deny him his right to attend these
meetings.
Obviously, this situation is extremely distressing
to my clients. Not only has the City ignored their
attempts to resolve this issue amicably, now it
seems the City has an agenda to assassinate the
character of Mr. Fernandes and prohibit him
from exercising his rights as a citizen of Jersey
City. The City has gone to the length of
physically assaulting my client to achieve this
agenda. Such behavior is unacceptable.
(Id.

¶

47). The letter requested a meeting with Farrell, but Plaintiffs’

counsel did not receive any response.
Plaintiffs eventually received a Use of Force Report, but it provided
inadequate information. This prompted Plaintiffs’ counsel, on March 25,
2016, to demand that that the City Clerk respond more fully to the OPRA
request. (Compi.

¶

51) That same day, Plaintiffs’ counsel wrote to Jeremy

Farrell seeking a further response to the February 8, 2016 letter; noting
the city clerk’s inadequate response to the OPRA request; and raising a
new grievance.
That new grievance related to Mayor Fulop’s alleged behavior
towards Fernandes during a March 14, 2016 public meeting. (Id.
The letter stated:
On March 14, 2016, I attended a public meeting
in Ward F at the Bethune Center with Carlos
Fernandes. There, my client asked the Mayor a
question, to which the Mayor again answered
that my client is a disgruntled person because
6

¶

52)

his property had been cited for numerous
violations by the City, and that the matter is
currently the subject of litigation. Again, to date,
Mr. Femandes has not received any notice of
any violations against him, his wife or their
property. The Mayor knows his statements are
untrue. The Mayor must be aware of the true
circumstances in this matter because after he
made the untrue statements at the February 3,
2016 meeting in Ward A I wrote to you informing
you that his statements were untrue.
The Mayors behavior toward my client is
unacceptable. Instead of seriously addressing
legitimate issues my client has with the City’s
handling of abruptly halting construction at his
home after the City issued a valid permit for the
same construction (and the City’s refusal to
allow my client to go forward with construction
resulting in significant damage to his property),
the Mayor is waging a smear campaign against
my client in an attempt to minimize his claims
against the City.
(Id.)
D. The Plaintiffs’ Tort Claim Notice and Complaint
On November 25, 2015—after the work had been shut down and
the Property had sustained damage, but before the Plaintiffs began
attending public meetings—the Plaintiffs filed a Tort Claim Notice (a
“TCN”). (Compl.

¶

39; see Br. 14)3 On or about April 18, 2016, Plaintiffs’

counsel received a response to the TCN from Jersey City, disclaiming
liability. (Id.

¶

54)

On September 22, 2016, the Plaintiffs filed a civil complaint in the
Superior Court of New Jersey, Law Division, Hudson County. (See

The parties do not provide a copy of the November 25, 2015 TCN, and the
Complaint does not describe it. The defendants argue that the Plaintiffs failed to
file a TCN only with respect to the Plaintiffs’ Count 5 defamation claim. This I
interpret as an implied concession that the Plaintiffs’ TCN did address the
Count 6 negligence claim.

7

Compi. p.1) The defendants removed the action to this Court on October
24, 2016. (See ECF No. 1)
The complaint is in six counts—four under 42 U.S.C.

§ 1983 and

two under state tort law:
•

Count 1: Violation of the Plaintiffs’ right to Equal Protection
under the Fourteenth Amendment, pursuant to 42 U.S.C.

§

1983 (“Section 1983”) (Compi. ¶{56—66) (against the City)4;
•

Count 2: Violation of the Plaintiffs’ right to procedural due
process under the Fourteenth Amendment, pursuant to
Section 1983 (id. ¶J67—76) (against the City);

•

Count 3: Violation of the Plaintiffs’ First Amendment speech
rights, pursuant to Section 1983 (Compi.

¶1] 77—82) (against

the City, Mayor Fuiop in his individual capacity, and Anthony
)
5
B. Lewis in his individual and official capacities
•

Count 4: Unlawful seizure and false arrest, in violation of
the Fourth Amendment, pursuant to Section 1983. (Id.
¶J83—91) (same parties as Count 3)

•

Count 5: Defamation by slander. (Compi.

¶J 92—98) (against

Mayor Fulop in his individual capacity)
•
II.

Count 6: Negligence. (Id.

¶J 99—104) (against the City)

LEGAL STANDARD ON MOTION TO DISMISS
The defendants move to dismiss the complaint under Rule 12(b)(6)

of the Federal Rules of Civil Procedure. Rule l2(b)(6) provides for the
dismissal of a complaint, in whole or in part, if it fails to state a claim

As noted above, counts asserted against the PD, the Building
Department and the HPC are treated as claims against the City. See n.2, supra.
5
The opening paragraph of the complaint refers to “Steven M. Fulop,
individually” but “Anthony B. Lewis” with no such qualifier. (See Compl. p.1)
Therefore, I construe the complaint as suing Lewis in both his individual and
official capacity.

8

upon which relief can be granted. The defendant, as the moving party,
bears the burden of showing that no claim has been stated. Animal
9
Science Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.
(3d Cir. 2011). For the purposes of a motion to dismiss, the facts alleged
in the complaint are accepted as true and all reasonable inferences are
drawn in favor of the plaintiff. N.J. Carpenters & the Trustees Thereof v.
Tishman Const. Corp. of N.J., 760 F.3d 297, 302 (3d Cir. 2014).
Federal Rule of Procedure 8(a) does not require that a complaint
tion
contain detailed factual allegations. Nevertheless, “a plaintiff’s obliga
to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than
a
labels and conclusions, and a formulaic recitation of the elements of
555
cause of action will not do.” Bell Ati. Corp. t.’. Twombly, 550 U.S. 544,
(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 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
the
court to draw the reasonable inference that the defendant is liable for
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.
As the Third Circuit instructed post-Iqbal, “conclusory or ‘barebones’ allegations will no longer survive a motion to dismiss: ‘threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.’ To prevent dismissal, all civil
complaints must now set out ‘sufficient factual matter’ to show that the
claim is facially plausible.” Fowler v. UPMC Shadysicle, 578 F.3d 203,
int
210 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 662). “Nor does a compla
suffice if it tenders ‘naked assertion[sJ’ devoid of ‘further factual

9

enhancement.” Iqbal, 556 U.S. at 662 (citing Twombly, 550 U.S. at 555).
III.

DISCUSSION

The government moves to dismiss the complaint on a number of
grounds. I first consider whether Counts 1 through 4 state a
constitutional claim under 42 U.S.C.

§ 1983 (section III.A); I next

consider whether any such liability extends to the City under Monell v.
Department of Social Services of City of N.Y., 436 U.S. 658, 98 S. Ct. 2018
(1978) (section III.B); I then consider the qualified immunity of
defendants Fulop and Lewis in their individual capacities (section III.C);
and finally I consider the sufficiency of the state law tort claims, Counts
5 and 6 (section III.D).
A. Sufficiency of Section 1983 Claims
To state a claim for relief under § 1983, a plaintiff must allege,
first, the violation of a right secured by the Constitution or laws of the
United States, and second, that the alleged deprivation was committed or
caused by a person acting under color of state law. See Harvey v. Plains
Twp. Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted);
see also West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250 (1988).
1.

Count 1—Equal Protection

The Fourteenth Amendment provides that no State shall “deny to
any person within its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1. To state a traditional equal protection claim, a
plaintiff must allege facts showing the existence of purposeful
discrimination. Chambers ex rel. Chambers v. Sch. Dist. of Phila. Rd. of
Educ., 587 F.3d 176, 196 (3d Cir. 2009) (citing Andrews v. City of
Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990)). The plaintiff must
have received treatment different from that received by other individuals
similarly situated. Id.
Most commonly, a plaintiff will allege that a state actor
intentionally discriminated because of his or her membership in a
protected class, such as a racial or religious minority. Lande v. City of
10

Bethlehem, 457 Fed. App’x 188, 192 (3d Cir. 2012) (citing Chambers, 587
F.3d at 196). The Plaintiffs here allege that their neighbors were allowed
to perform comparable work on their homes. That allegation, however,
does not place Plaintiffs in a protected class.
Alternatively, however, a plaintiff may assert an Equal Protection
claim under a “class of one” theory. Lanin v. Borough of Tenafly, No.
2:12-02725 KM MCA, 2014 WL 31350, at *8 (D.N.J. Jan. 2, 2014).
A “class of one” Equal Protection claim asserts
that a person was “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, 120 S. Ct. 1073, 145 L.Ed.2d
1060 (2000). The plaintiff must allege: “(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 treatment.” Hill v. Borough of
Kutztown, 455 F.3d 225, 239 (3d Cir. 2006).
Id. at *7; see also Ecotone Farm LLC v. Ward, 639 F. App’x 118, 124 (3d
Cir. 2016) (non-precedential).
Here, the allegedly “similarly situated” individuals are “other
homeowners in the Historic District”— more specifically, property owners
on the Plaintiffs’ street whom the City has allowed to alter their
properties in ways Jersey City guidelines disfavor or prohibit, “without
HPC approval or valid permits.” (Compl.

¶J 38, 63) The Plaintiffs never

expressly allege that all properties in the Historic District need HPC
approval prior to renovation. Nevertheless, on a motion to dismiss, I will
6
assume this to be the case and accept that Plaintiffs and their neighbors
are therefore similarly situated.
Such an assumption would not appear to be unfounded. See Jersey City
Code of Ordinances, Municipal Code § 345-30, available at
https: / / library.municode corn / nj/jersey_city! codes / code_of_ordinances (“No
permit shall be issued or amended nor shall any construction, alteration, minor
alteration, ordinary maintenance and repair or demolition be started on a
landmark building nor on any sign, building, structure, object, site or

6

.

11

As for the second element, there can be no dispute that the
Plaintiffs allege intentional action.
Turning to the third element, the Plaintiffs allege that Building
Department and HPC officers Blaziak, Meyer, and Wrieden ordered them
to cease construction on their Property. (Compi. ¶ 20, 60, 71, ) The
Plaintiffs, in their brief, argue that “[ut can easily be inferred from the
complaint that the Plaintiffs not only did not support Mayor Fulop but
were outspoken opponents of Mayor Fulop.” (Opp. 13) The only relevant
allegation in the Complaint is somewhat different: “One couple who
conducted alterations to their property without HPC approval were
married by Mayor Fulop and

.

.

.

were significant supporters of Mayor

Fulop’s campaign.” The Complaint does not allege that the Plaintiffs
publicly spoke out against any of the defendants prior to January 2016,
or against Mayor Fulop at any time. (See Compl. ¶ 40—4 1) It does not
allege that any officer or defendant involved in enforcing the Stop Work
Order knew that they did not support Mayor Fulop (if indeed that was
the case). Nor, conversely, did any defendant allegedly suggest that
support for Mayor Fulop would expedite approval of their renovation
efforts. In short, the allegations of politically-based discrimination are
quite weak.
Still, the class-of-one claim does not require a political motive—
7
only the lack of any rational basis for the disparate treatment. The
Complaint alleges that the reason given for shutting down work could not
*8 (in analyzing
have been the real reason. See Lanin, 2014 WL 31350, at
the rational basis element on a motion to dismiss, “[a] sufficient

landscape feature within a designated historic district, whether or not a
construction permit is required, prior to a filing of an application for review by
the Historic Preservation Commission or the issuance of either a Certificate of
Appropriateness or a Certificate of No Effect.”).
7
Of course, First Amendment retaliation, alleged in Count 3, is a different
matter.
12

allegation that Defendants’ stated motivations were not the real ones
might support a cause of action.”). An insincere explanation may suggest
that there is no good one. The Plaintiffs allege, for example, that the City
(at least initially) refused to acknowledge that they possessed a building
permit; that the City permitted neighbors to perform similar construction
without HPC authorization, and that in at least one case there was an
appearance of political favoritism. No other, acceptable basis for the
alleged disparate treatment appears on the face of the complaint.
Class-of-one Equal Protection claims are difficult to prove, and
they rarely succeed. Such a claim has, however, been alleged here.
Count 2—Procedural Due Process
2.
To state a procedural due process claim, the Plaintiffs must
establish (1) that they were deprived of an individual interest that is
encompassed within the Fourteenth Amendment’s protection of life,
liberty and property, and (2) that the procedures available to them did
not provide due process of law. Schmidt v. Creedon, 639 F.3d 587, 595
(3d Cir. 201 1). It is not controversial that real property ownership
generally constitutes a protected property right. Whether the Plaintiffs
had a protected property interest in renovating their home, or in
receiving all requisite approvals and permits to do so, is less certain.
To have a property interest in a benefit, a person
clearly must have more than an abstract need or
desire for it. He must have more than a
unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it.
Property interests, of course, are not created by
the Constitution. Rather they are created and
their dimensions are defined by existing rules or
understandings that stem from an independent
source such as state law—rules or
understandings that secure certain benefits and
that support claims of entitlement to those
benefits.
.

13

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct.
2701, 2709 (1972). Cf. Indep. Enterprises Inc. v. Pittsburgh Water & Sewer
Auth., 103 F.3d 1165, 1179 (3d Cir. 1997) (“[TJhe law of this circuit
recognizes that ‘an entitlement may exist for a benefit sought but not yet
obtained if state law limits the exercise of discretion by the state official
responsible for conferring the benefit.” (quoting Midnight Sessions, Ltd. v.
City of Phila., 945 F.2d 667, 679 (3d Cir. 1991)).
The Complaint fails to state specifically the manner in which
enforcement of HPC rules deprived Plaintiffs of a property right. State
law, the source of property rights, suggests that they would have great
difficulty in doing so. Cf. Waters v. Twp. of Galloway, 286 N.J. Super.
222, 237—38, 668 A.2d 1086, 1095 (App. Div. 1995) (“The legitimacy of
entitlement, in instances relating to denial of building or other municipal
permits, is based on whether plaintiffs have complied with all legal
requirements contained in the local codes or ordinances.”).
Even assuming that there is a protected property right, however,
the Complaint fails to state a procedural due process claim. Among other
things, Plaintiffs never allege that they even attempted to take advantage
of state and local procedures for challenging the defendants’ allegedly
erroneous Stop Work Order.
A state “provides constitutionally adequate procedural due process
when it provides reasonable remedies to rectify a legal error by a local
administrative body.” DeBlasio v. Zoning Rd. of Adjustment, 53 F.3d 592,
597 (3d Cir. 1995) (affirming district court’s conclusion that “New Jersey
provides a constitutionally adequate process for challenging wrongful
zoning decisions”), abrogated on other grounds by United Artists Theatre
Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 400 (3d Cir. 2003).
Therefore, “when a state affords a full judicial mechanism with which to
challenge the administrative decision in question, the state provides
adequate procedural due process.

.

.

whether or not the plaintiff avails

14

him or herself of the provided appeal mechanism.” Id. (citations and
internal quotations omitted); see also Bello v. Walker, 840 F.2d 1124,
1128 (3d Cir. 1988) (municipality’s delay in issuing building permit did
not raise procedural due process where state “affords a full judicial
mechanism with which to challenge the administrative decision”),
abrogated on other grounds by United Artists Theatre Circuit, Inc. v. Twp.
of Warrington, PA, 316 F.3d 392 (3d Cir. 2003).
Jersey City’s Code of Ordinances, Section 345-30 sets forth a clear
set of instructions for applying for a Certificate of Appropriateness or a
Certificate of No Effect (i.e., approval) from the HPC. The same Section
provides for a review process with a written decision by the HPC and a
8
procedure for appealing the HPC’s decision to the Board of Adjustment.
Land Development Ordinance of the Jersey City, Hudson County, New
Jersey,

§ 345-30.

The Complaint makes no mention of these available procedures. It
does not allege that the Plaintiffs attempted to take advantage of them
and were turned back in some way. It does not allege that the procedures
are inadequate. A substantive challenge under state law may be possible,
but (at least as currently alleged) there is no procedural due process
claim. “If there is a process on the books that appears to provide due
process, the plaintiff cannot skip that process and use the federal courts
as a means to get back what he wants.

.

.

.

[A] procedural due process

violation cannot have occurred when the governmental actor provides
apparently adequate procedural remedies and the plaintiff has not
availed himself of those remedies.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d
I also note that the ordinance provides for an emergency procedure for
certifying the immediate necessity for HPC approval in the event that a property
owner needs an immediate permit to “commence to stabilize, secure, repair or
protect a landmark building, structure, object, site or landscape feature
damaged” by “an act of God or any other unexpected event”. Id. The Plaintiffs’
failure to avail themselves of this procedure, if it was truly available, could
conceivably defeat their claims for lack of causation.

8

15

Cir. 2000).
The Plaintiffs also allege that, after issuing the Stop Work Order,
“Jersey City refused to provide any answers to the Plaintiffs and refused
to acknowledge that a [construction] permit had been issued” (Compi.

¶

26), and that they “were not given any right to appeal, contest or be
heard regarding the ‘Stop Work Order’. . . .“ (Id. ¶ 73) These allegations,
directed to the allegedly vanished construction permit, come closer to
9
stating a claim, but still fail. These are no more than bare-bones
conclusory statements of a procedural deprivation. The defendants
cannot have failed to “give” any right to appeal unless plaintiffs allege, for
example, that they filed or attempted to file such an appeal. What
appears from the face of the complaint is a letter-writing campaign,
accompanied by in-person demands and accusations of bureaucratic
indifference. And even as to that, the only specific allegations relate to e
°
1
mail communications between Plaintiffs’ counsel and LaBianca.
Otherwise, the Plaintiffs fail to give any indication of who (beyond “Jersey
City”) they asked for answers, what they were told, and what (if any)

A protected property right, for example, is easier to find in the case of a
permit already granted. See, e.g., Fairview Ritz Corp. v. Borough of Fairview, No.
CIV.A. 9-875 JLL, 2013 WL 5946986, at *14 (D.N.J. Nov. 6, 2013) (reasoning
that “the due process requirements attendant upon the denial of an application
for a property right not yet granted where an appellate process was available
but the plaintiff did not take advantage of it, on the one hand, and the
revocation of a previously granted certificate without notice or a pre-deprivation
hearing, on the other, require a different analysis”); Alvin, 227 F.3d at 116 (“In
order to state a claim for failure to provide due process, a plaintiff must have
taken advantage of the processes that are available to him or her, unless those
processes are unavailable or patently inadequate.” (Emphasis added.)
The allegations fail to show that any of LaBianca’s representations
amounted to deprivation of process by the defendants. To the contrary, the
plaintiffs allege that LaBianca told Plaintiffs’ counsel they could install “long
lasting preservation measures to protect the [Pjroperty.. .“ (Compl. ¶ 32) The
decision not to do so (i.e., to cover the Property with only plastic tarp), appears
to have been the Plaintiffs’ own decision. (See id. ¶ 35)
10

.

16

statutory rights they sought to invoke.” There may be more, but it does
not appear in this Complaint. Without even this minimal factual
enhancement, I cannot conclude that a procedural due process claim is
facially plausible. See Fowler, 578 F.3d at 210.12 The motion to dismiss
Count 2 for failure to state a claim is therefore granted.
3.

Count 3—First Amendment Retaliation

Count 3 is a claim that Jersey City, Mayor Fulop, and Officer Lewis
retaliated against the Plaintiffs for exercising their First Amendment
rights at public meetings. Such a retaliation claim requires allegations of
“(1) constitutionally protected conduct, (2) retaliatory action sufficient to
deter a person of ordinary firmness from exercising his constitutional
rights, and (3) a causal link between the constitutionally protected
For example, the Plaintiffs fail to mention the municipal and state
procedures available pursuant to Jersey City’s Code of Ordinances and New
Jersey’s Uniform Construction Code Act (UCCA), see, e.g., N.J.S.A. 52:27D119—141, which, in and of themselves, provide for due process procedures and
protections that likely pass constitutional muster. See, e.g., Piemmons v. Blue
Chip Ins. Servs., Inc., 387 N.J. Super. 551, 568, 904 A.2d 825, 836 (App. Div.
2006) (denied construction permits and stop work orders did not constitute
deprivation of procedural due process in light of procedures and remedies
afforded by New Jersey statues, including the UCCA).
11

In their briefing, the parties address whether Plaintiffs have stated a
substantive due process claim as well. But Count 2 of the Complaint is styled
as a procedural due process claim, and a substantive due process would have
to be alleged far more specifically. For what it is worth, the defendants’ issuance
and enforcement of the Stop Work Order and refusal to acknowledge the
construction permit that the Plaintiffs allegedly secured, even if there was some
selective enforcement, is not alleged to reach the level of shocking the
conscience. See United Artists Theatre Circuit, Inc. v. Twp. of Warrington, PA,
316 F.3d 392, 402 (3d Cir. 2003) (holding that substantive due process claims
in the land use context must be held to the shocks-the-conscience test and
explaining that “(l]and-use decisions are matters of local concern, and such
disputes should not be transformed into substantive due process claims based
only on allegations that government officials acted with ‘improper’ motives.”);
Shamrock Creek, LLC v. Borough of Paramus, No. CIV.A. 12-2716, 2014 WL
4824353, at *45 (D.N.J. Sept. 24, 2014) (collecting land-use cases in which
courts declined to find the shocks-the-conscience test met); see also Eichenlaub
v. Twp. of Indiana, 385 F.3d 274, 287 (3d Cir. 2004) (“[W]e do not view an equal
protection claim as a device to dilute the stringent requirements needed to show
a substantive due process violation.”).
12

17

conduct and the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d
285, 296 (3d Cir. 2006); see also 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); Citizens ForA
Better Lawnside, Inc. v. Bryant, No. 05-4286 RBK, 2006 WL 3825145, at
*6 (D.N.J. Dec. 22, 2006). The first element is an issue of law; the second
and third are questions of fact. Baldassare v. New Jersey, 250 F.3d 188,
195 (3d Cir. 2001); Johnson v. Lincoln Univ., 776 F.2d 443, 454 (3d Cir.
1985).
The first element—constitutionally protected speech—is clearly
present. The Plaintiffs allege that Fernandes’s speech at meetings
concerned “the failings of Jersey City, the Building Department, the HPC
and their related officials, and the condition of this home” as well as “the
intimidation and disrespectful treatment [the Plaintiffs] suffered at the
hands of Jersey City, Building Department Officials,.
police officers.” (Compi.

¶11

.

.

and Jersey City

41, 79) A core purpose of the First

Amendment is to protect speech on matters of public interest. There is
no question that speech by a private citizen concerning matters of public
concern, and especially governmental affairs, is constitutionally
protected conduct. See Mills v. State of Ala., 384 U.S. 214, 218, 86 S. Ct.
1434 (1966) (“there is practically universal agreement that a major
purpose of [the First] Amendment was to protect the free discussion of
governmental affairs.”). Courts in fact afford heightened protection to
speech given in public forums, such as public meetings. Besler v. Bd. of
Educ. of W. Windsor-Plainsboro Reg’l Sch. Dist., 201 N.J. 544, 569, 993
A.2d 805, 819 (2010).
The defendants argue that the Plaintiffs’ allegations regarding “the
failings of Jersey City” are too vague and implausible to meet Twombly’s
and Iqbal’s pleading standards. I disagree. Viewing the complaint in its
entirety, it is clear what “failings” are referred to. Fernandes objects to

18

the thwarted renovation attempts, the resulting damage to his home, and
the City’s allegedly discriminatory or irrational enforcement of the rules.
(See Compl.

¶J

23—38, 41, 47, 52, 78—79) The particulars of his speech at

the meetings may be fleshed out in discovery.
As for the second and third elements, the Plaintiffs say the
defendants violated Fernandes’s First Amendment rights: (1) when police
officers, at Fulop’s instruction (in reaction to Fernandes’s prior railings
against Jersey City), removed him from the February 3, 2016 public
meeting; (2) when Mayor Fulop made allegedly defamatory comments
about Fernandes during the February 3, 2016 meeting and again at a
March 14, 2016 meeting in response to Fernandes’s questions; and (3)
when police officers intimidated Fernandes at public meetings by their
proximity to him. (Compi. ¶j, 44—47, 52, 80)13
The first letter from Plaintiffs’ counsel to Jeremey Farrell complains
that, at the February 3, 2016 meeting, Mayor Fulop stated publicly that
Fernandes’s Property has been cited for violations and that he had
Fernandes removed because Fernandes frequently disrupts public
meetings. (Id.

¶

47) In the second letter to Farrell, Plaintiffs’ counsel

states that when Fernandes asked Mayor Fulop a question during the
March 14, 2016 meeting, Mayor Fulop accused Fernandes of being
disgruntled because his property has been cited for numerous violations.
(Id. 52) These are sufficient allegations of retaliation because Fernandes
had vocalized concerns at public meetings. Such steps could deter a
reasonable person from speaking further.

13
“[Ijt has never been established that a governmental official who does not
can be
himself retaliate but instead pressures another individual to retaliate.
liable.” Zalogci v. Borough of Moosic, 841 F.3d 170, 177 (3d Cir.
held personally
2016). Here, however, the Complaint gives rise to a plausible inference that the
Mayor acted, and directly ordered the police to implement retaliatory acts, a
different situation.
.

19

.

Defendants’ motion suggests a couple of caveats. Although neither
supports dismissal at present, I discuss them briefly for the parties’
guidance.
The first caveat pertains to Fernandes’s alleged removal from the
meeting and intimidation by police presence. To be sure, “viewpoint
based restrictions violate the First Amendment regardless of whether
they also serve some valid time, place, manner interest.” Monteiro v. City
of Elizabeth, 436 F.3d 397, 404 (3d Cir. 2006); see also Ferry Educ. Ass’n
v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S. Ct. 948, 955
(1983) (“In addition to time, place, and manner regulations, the state
may reserve the forum for its intended purposes, communicative or
otherwise, as long as the regulation on speech is reasonable and not an
effort to suppress expression merely because public officials oppose the
speaker’s view.”). Nevertheless, the law permits a public body to control
its proceedings in a content-neutral manner by stopping a speaker who
is disruptive or who disregards a meeting’s properly-confined subject
matter limitations. See Besler v. Bd. of Educ. of W. Windsor-Flainsboro
Reg’! Sch. Dist., 201 N.J. 544, 571, 993 A.2d 805, 820—21 (2010);
Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 281 (3d Cir. 2004).
In Eichenlaub, for example, a plaintiff who attended a Township
Board of Supervisors meeting was removed during the public comment
period because he was “repetitive and truculent,” and “repeatedly
interrupted the chairman of the meeting.” Id. at 281. The United States
Court of Appeals for the Third Circuit affirmed the district court’s
dismissal of the plaintiffs First Amendment claims, agreeing that the
chairman’s motive for ejecting the plaintiff “was the perfectly sustainable
and content-neutral desire to prevent his badgering, constant
interruptions, and disregard for the rules of decorum.” Id. To let a
speaker “hijack” or “filibuster” the proceedings, the Court emphasized,

20

would only “impinge on the First Amendment rights of other would-be
participants.” Id.
The defendants claim that any restrictions on Fernandes’s speech
were content-neutral and served a constitutionally permissible purpose.
The issue here, however, is whether the Plaintiffs have adequately alleged
otherwise. I think they have. The motion to dismiss the Count 3 First
Amendment retaliation claim based on Fernandes’s removal and the
presence of police cannot be granted on these fact-intensive grounds.
The second caveat pertains to Mayor Fulop’s alleged defamatory
statements. Although I have already sustained Count 3, I nevertheless
consider whether to excise those statements as part of the basis for a
First Amendment retaliation claim.
Where an alleged act of retaliation is one that takes the form of an
official’s own speech—which may itself enjoy First Amendment
protection—the Third Circuit “employ[s] a more specific test to determine
whether the official’s speech amounts to a retaliatory act. [Itj ask[s]
whether there was a threat, coercion, or intimidation, intimating that
punishment, sanction, or adverse regulatory action will follow.” Mirabella
v. Villard, 853 F.3d 641, 651 (3d Cir. 2017) (internal quotation marks
omitted). See also McLaughlin v. Watson, 271 F.3d 566, 573 (3d Cir.
2001) (“When a public official is sued for allegedly causing a third party
to take some type of adverse action against plaintiff’s speech, we have
held that defendant’s conduct must be of a particularly virulent
character. It is not enough that defendant speaks critically of plaintiff or
even that defendant directly urges or influences the third party to take
adverse action. Rather, defendant must “threaten” or “coerce” the third
party to act.”).
In Koren v. Noonan, 586 F. App’x 885, 888 (3d Cir. 2014), where
the plaintiff alleged the defendants “smeared his unblemished
professional record in an attempt to derail his ongoing candidacy[,]

21

.

• [t]he question

.

.

.

[was] not whether [the defendants’] remarks were

defamatory—it [was] whether they would have deterred a person of
ordinary firmness.., from pursuing a similar run for office.” Id. at 888
(internal quotation marks and citation omitted). Cautioning that “in the
political arena, courts have consistently rejected First Amendment
retaliation claims based upon assertions of purportedly false reports or
criticism,” the court concluded that speech “which involved no ‘threat,
coercion, or intimidation intimating that punishment, sanction, or
adverse regulatory action will imminently follow,’ would not dissuade a
person of ordinary firmness from seeking political office.” Id. (quoting
Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 687 (4th Cir. 2000)).
As exacting as the Third Circuit’s test is, I think that Plaintiffs
have alleged statements by Mayor Fulop that need not be, but could be,
construed as threats of adverse regulatory action, in the context of all the
facts. I will not strike those statements from Count 3, but leave them as
part of the overall picture of alleged First Amendment retaliation.
4.

Count 4—Fourth Amendment

Based on events at the same February 3, 2016 meeting discussed
above, Count 4 alleges that Jersey City, Mayor Fulop, and Officer Lewis
violated the Fourth Amendment’s protection against unreasonable
seizures. See U.S. Const. amend. IV. In particular, Plaintiffs allege that
Fernandes was falsely arrested. (Compi.

¶J

87—88)

“To state a claim for false arrest under the Fourth Amendment, a
plaintiff must establish: (1) that there was an arrest; and (2) that the
arrest was made without probable cause.” James v. City of Wilkes—Barre,
700 F.3d 675, 680 (3d Cir. 2012) (citing Groman v. Twp. of Manalapan,
47 F.3d 628, 634 (3d Cir. 1995); Dowling v. City of Phila., 855 F.2d 136,
141 (3d Cir. 1988)).
The defendants attack the second element, i.e., asserting that there
was probable cause. The police officers, they say, possessed probable

22

cause because Fernandes had previously caused a disturbance and was
engaging in similar conduct during the February 3, 2016 meeting. (Br.
11; Reply 4—5) In support, Defendants cite the February 8, 2016 letter
from Plaintiffs’ counsel to Jeremey Farrell, described in the Complaint.
47) That letter, however, is not an admission of wrongdoing by
Fernandes; it states only that Mayor Filop told the audience that
(Compi.

¶

Fernandes was removed because he disrupted public meetings. (Id.) The
Complaint alleges, in so many words, that the Mayor’s statement was
false. On a motion to dismiss standard, I cannot resolve the fact-bound
issue of probable cause.
I move on to the first element: whether the Complaint alleges that
Fernandes was allegedly “arrested” or “seized.” The purpose of the Fourth
Amendment is not to eliminate all contact between the police and the
citizenry, but “to prevent arbitrary and oppressive interference by
enforcement officials with the privacy and personal security of
individuals.” United States v. Mendenhall, 446 U.S. 544, 553—54, 100 S.
Ct. 1870, 1877 (1980) (quoting United States v. Martinez-Fuerte, 428 U.S.
543, 554, 96 5. Ct. 3074, 3081). The United States Supreme Court has
described the level of restraint that must be imposed for constitutional
safeguards to apply:
[A] person has been “seized” within the meaning
of the Fourth Amendment only if, in view of all of
the circumstances surrounding the incident, a
reasonable person would have believed that he
was not free to leave. Examples of circumstances
that might indicate a seizure, even where the
person did not attempt to leave, would be the
threatening presence of several officers, the
display of a weapon by an officer, some physical
touching of the person of the citizen, or the use
of language or tone of voice indicating that
compliance with the officer’s request might be
compelled.
Id. at 554 (footnote omitted); see also Berg v. Cty. of Allegheny, 219 F.3d
261, 269 (3d Cir. 2000) (“A person is seized for Fourth Amendment
23

purposes only if he is detained by means intentionally applied to
terminate his freedom of movement.”).
The Complaint alleges that Mayor Fulop instructed Jersey City
police officers to remove Fernandes from a public meeting; that the police
officers laid hands on Fernandes and ejected him; that they did so
without probable cause or explanation; and that F’ernandes suffered
physical injury as a result. (Compi.

¶J

44—45, 85—86, 88) Plaintiffs also

allege that the presence of officers intimidated them; that allegation may
turn out to be superfluous, but it does not detract from the clear
allegation of a seizure. Plaintiffs’ allegations of a “seizure” suffice at this
stage.
4
Plaintiffs allege that the seizure was ordered by the Mayor.’
Liability can “extend beyond the arresting officer to other officials whose
intentional actions set the arresting officer in motion.” Berg v. Cty. of
Allegheny, 219 F.3d 261, 272 (3d Cir. 2000); see also Kilbourn v.
Thompson, 103 U.S. 168, 200 (1880) (“[HJe who assumes the authority to
order the imprisonment of another is responsible for the acts of the
person to whom such order is given, when the arrest is without
justification.”); cf. Garcia v. City of Paterson, No. 1 1-CV-6587, 2015 WL
857801, at *3 (D.N.J. Feb. 27, 2015) (dismissing false arrest claim
against defendant who gave information to police relevant to plaintiffs’
arrest because he did not “instigate” or ‘intentionally cause” the arrests).
These allegations suffice to state a Fourth Amendment claim for an
unreasonable seizure of the person. The motion to dismiss is denied as to
Count 4.
B. Monell Liability of the City
I have found that Counts 1, 3, and 4 state Section 1983 claims for
violations of the Fourteenth Amendment’s Equal Protection clause and

Plaintiffs seem to allege that more than one officer was involved, but only
Lewis is currently identified.
14

24

supra.) I now
the First and Fourth Amendments. (See Section l1I.A,
alleged to extend to the
consider whether any such liability is sufficiently
5
City itself.’
officers and
A City, of course, can act only through people—its
1983 “may not be
employees. A municipality’s liability under Section
must be founded
proven under the respondeat superior doctrine, but
orted a violation of
upon evidence that the government unit itself supp
845, 850 (3d Cir.
constitutional rights.” Bielevicz v. Dubinon, 915 F.2d
436 U.S. 658, 690—9 1,
1990); Monell v. Dep’t of Soc. Serus. of City of N.Y.,
be liable under
98 S. Ct. 2018, 2035—36 (1978) (a municipality may
unconstitutional
section 1983 where “the action that is alleged to be
, regulation, or
implements or executes a policy statement, ordinance
body’s officers”).
decision officially adopted and promulgated by that
recognizes two
Within this framework, longstanding jurisprudence
policies and customs,
grounds for “Monell liability”: (1) unconstitutional
16
and (2) inadequate training of employees.
be found liable
First, a municipality or local government unit can
ing force [behind] the
under Section 1983 “where its policies are the ‘mov
on Ohio v. Harris,
constitutional violation”’ that is alleged. City of Cant
694). That liability489 U.S. 378, 389 (1989) (quoting Monell, 436 U.S. at
y or custom. Policy
creating “force” may be exercised through formal polic
authority to establish
is made when a “‘decisionmaker possess[ing] final

claims
Again, claims against the City are construed to include the
See n.2,
HPC.
asserted against the PD, the Building Department, and the
plaint might be construed as suing Lewis is in
supra. As noted above, the Com
lawsuit against a
his official capacity, as well as his personal capacity. A
vely a suit against the office.
government official in his official capacity is effecti
(1985). I therefore do
Brandon L’. Holt, 469 U.S. 464, 471, 105 S. Ct. 873, 878
15

rately from those against
not discuss official—capacity claims for damages sepa
the City.

rior), but have
The Plaintiffs use the wrong terminology (respondeat supe
municipal policies and
the right idea. They seek to hold the City liable based on
the City’s failure to train employees and officers. (Opp. 7—8)
16

25

[local] policy with respect to the action’ issues an official proclamation,
policy, or edict,” Andrews v. City of Philadelphia, 895 F.2d 1469, 1480
(3d Cir. 1990) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481
can be proven by showing that a given
(1986)), while “[c]ustom.
.

.

course of conduct, although not specifically endorsed or authorized by
law, is so well-settled and permanent as to virtually constitute law.”
Bielevicz v. Dubinion, 915 F.2d 845, 850 (3d Cir. 2007) (citing And rews,
895 F.2d at 1480).
“A municipal defendant need not, however, promulgate an official
The
legislative policy or follow a repeated practice to face liability.
.

policy or custom requirement may

[]

.

.

be satisfied by a single official act by

a local governmental body, or official with final decisionmaking
authority.” Hassoun v. Cimmino, 126 F. Supp. 2d 353, 366-67 (D.N.J.
2000); see also Langford v. City of Ati. City, 235 F.3d 845, 846—50 (3d
Cir. 2000). “Authority to make municipal policy may be granted directly
by a legislative enactment or may be delegated by an official who
possesses such authority, and of course, whether an official had final
policymaking authority is a question of state law.” Pembaur v. City of
Cincinnati, 475 U.S. 469, 483—84, 106 S. Ct. 1292, 1300 (1986).’7
The Third Circuit has summarized the above custom-and-policy
principles in simpler terms:
“[A] municipality may only be liable for the torts
of its employees in one of three ways: First, the
municipality will be liable if its employee acted
pursuant to a formal government policy or a
standard operating procedure long accepted
See also City of St. Louis v. Praprotnik, 485 U.S. 112, 125, 108 S. Ct. 915,
925 (1988) (“[S]tate law (which may include valid local ordinances and
regulations) will always direct a court to some official or body that has the
responsibility for making law or setting policy in any given area of a local
government’s business.”).

26

Ecotone

within the government entity; second, liability
will attach when the individual has policy
making authority rendering his or her behavior
an act of official government policy; third, the
municipality will be liable if an official with
authority has ratified the unconstitutional
actions of a subordinate, rendering such
behavior official for liability purposes.”
2016) (quoting
Farm LLC v. Ward, 639 F. App’x 118, 127 (3d Cir.

) (citations omitted)).
McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005
re to train or
Second, Monell liability based on a municipality’s failu
re amounts to
supervise employees “requires a showing that the failu
whom those
‘deliberate indifference’ to the rights of persons with
tified deficiency in
employees will come into contact. Additionally, the iden
ultimate injury; or
a city’s training program must be closely related to the
] actually caused the
in other words, the deficiency in training [must have
749 F.3d 217, 222
constitutional violation.” Thomas v. Cumberland Cty.,
ions omitted). “[l]n
(3d Cir. 2014) (internal quotation marks and citat

to amount to
order for a municipality’s failure to train or supervise
icipal policymakers
deliberate indifference, it must be shown that (1) mun
tion; (2) the situation
know that employees will confront a particular situa
andling; and (3)
involves a difficult choice or a history of employees mish
e deprivation of
the wrong choice by an employee will frequently caus
339, 357 (3d
constitutional rights.” Carter v. City of Phila., 181 F.3d
pattern of
Cir. 1999) (citations and footnote omitted). Therefore, “[a]
es is ‘ordinarily
similar constitutional violations by untrained employe
purposes of failure
necessary’ to demonstrate deliberate indifference for
(citations
to train.” Connick v. Thompson, 563 U.S. 51, 61(2011)
omitted).
1)
1. Monellliability for Equal Protection Claim (Count
1), the
With respect to their Equal Protection claim (Count
a Stop Work Order
Plaintiffs allege that the Building Department issued
Department and
on their Property; that the City, through the Building

27

the HPC, refused to let work continue without HPC approval; that Jersey
a
City refused to acknowledge that the Building Department had issued
building permit for the renovations; and that the City and its
departments have allowed other property owners in the same historic
or
neighborhood to perform similar renovations without HPC approval
permits. (Compi. ¶J 23, 26, 6 1—64)
On the face of the Complaint, Plaintiffs allege no City policy or
custom that would have resulted in the injuries alleged. No established
a
policy of discrimination is alleged. At most, one could plausibly infer
pattern of lax enforcement, from which the Plaintiffs believe they, too,
should benefit. Therefore, the Plaintiffs have failed to allege that any
widespread policy or custom was “the moving force” behind the alleged
constitutional deprivation. See Monell, 436 U.S. at 694.
More plausibly, the Plaintiffs urge that the City is nevertheless
liable based on a “single decision” to enforce an ordinance in a
is
discriminatory manner. (Opp. 7) The whole rationale of Monell, recall,
that liability must be direct, not imputed. Such direct involvement may
be found where the defendant allegedly “was the final policymaker with
F.
regard to enforcing [thel ordinance.” Ecotone Farm LLC v. Ward, 639
App’x 118, 127 (3d Cir. 2016). Thus “[nJo one has ever doubted. . . that
its
a municipality may be liable under § 1983 for a single decision by
properly constituted legislative body. . . .“ Pembaur v. City of Cincinnati,
that 475 U.S. 469, 480, 106 S. Ct. 1292, 1298 (1986).
The Complaint alleges, not just an arbitrary decision by a
the
subordinate official, but the formal issuance of a Stop Work Order by
agency or agencies with decision-making responsibility and authority.
be
There is room for doubt as to whether Monell liability would ultimately
found, but that is not the standard now. These allegations are sufficient
to permit further exploration in discovery.

28

Accordingly, Count 1 of the Complaint adequately alleges
municipal liability under Monell.
2. Counts 2, 3, and 4 Against Jersey City
I
Count 2 has already been dismissed for failure to state a claim.
n and
consider whether Counts 3 and 4 (First Amendment retaliatio
liability of the
Fourth Amendment illegal seizure) adequately allege Monell
City.
officers
The Complaint fails to allege that the actions of the police
do they
at the public meetings implemented a preexisting policy. Nor
similar
allege facts suggesting substandard training, or a “pattern of
Thompson,
constitutional violations by untrained employees.” Connick v.
basis.
563 U.S. at 61(2011). I would riot find Monell liability on this
ns were
Once again, however, the Complaint alleges that these actio
ausible that the
undertaken at the direct order of the Mayor. It is not impl
to control
Mayor has the authority to direct the actions of the police, or
ation that
the proceedings at a public meeting. That is a sufficient alleg
” who spoke
the Mayor is an “official with final decisionmaking authority
municipal
for the City in this instance. Counts 3 and 4 adequately allege
liability under Monell.
C. Qualified Immunity of Fulop and Lewis
Fulop
Counts 3 and 4, in addition to naming the City, name Mayor
ls, they are
and Officer Lewis in their individual capacities. As individua
unity.
entitled to assert personal defenses, such as qualified imm
Qualified immunity protects government officials from

nt,
insubstantial claims in order to “shield officials from harassme
nably.”
distraction, and liability when they perform their duties reaso
immunity
Pearson v. Callahan, 555 U.S. 223, 231 (2009). “Qualified
the
‘gives ample room for mistaken judgments’ by protecting ‘all but
Monteiro u.
plainly incompetent or those who knowingly violate the law.”
Hunter v.
City of Elizabeth, 436 F.3d 397, 404 (3d Cir. 2006) (quoting

29

). To
Bryant, 502 U.S. 224, 229, 112 S. Ct. 534, 116 L.Ed.2d 589 (1991)
(1)
overcome qualified immunity, a plaintiff must plead facts “showing
that
that the official violated a statutory or constitutional right, and (2)
t.”
the right was ‘clearly established’ at the time of the challenged conduc
ently
Id. at 735. A right is clearly established if ‘its outlines are suffici
clear that a reasonable officer would understand that his actions violate
PA,
the right.”’ United Artists Theatre Circuit, Inc. v. Twp. of Warrington,
of
316 F.3d 392, 398—99 (3d Cir. 2003) (quoting Sterling v. Borough
Minersville, 232 F.3d 190, 193 (3d Cir. 2000)).
1. First Amendment Claim (Count 3)
As discussed, Count 3 adequately pleads that Lewis and Fulop
ed
violated Fernandes’s First Amendment rights. The remaining qualifi
immunity question, then, is whether the relevant right was clearly
:
established at the time. Count 3 alleges two alleged retaliatory actions
and
(1) Fernandes’s removal from the February 3, 2016 public meeting
2016
(2) Mayor Fulop’s defamatory statements during the February 3,
8
and March 14, 2016 meetings.’

Fernandes ‘s Removal
In Monteiro v. City of Elizabeth, the United States Court of Appeals
es a
for the Third Circuit addressed whether a public official who exclud
citizen from a public meeting may enjoy qualified immunity. 436 F.3d
397, 404—05 (3d Cir. 2006). “It is clearly established,” the Court
explained, “that when a public official excludes an elected representative
the
or a citizen from a public meeting, she must conform her conduct to
requirements of the First Amendment”; and it is likewise “clearly
established that content-based restrictions on speech in a public forum
The Plaintiffs never allege that Lewis was one of the police officers who
intimidated them with their nearby presence at public meetings, or that Mayor
Fulop directed officers to stand near them. (See Compi. ¶ 80) I therefore do not
discuss this form of alleged intimidation here.
18

30

ictions violate
are subject to strict scrutiny, while viewpoint-based restr
some valid
the First Amendment regardless of whether they also serve
officer violated
time, place, manner interest.” Id. at 404—05. Whether the
or her
clearly established law, then, will depend in part upon his
d the
motivation. Motivation being a question of fact, the court affirme
motion for
district court’s decision to deny the defendant’s post-trial
. Id. at 405.
judgment as a matter of law based on qualified immunity
The Plaintiffs’ First Amendment claim here raises a qualified
iro. A fortiori, it
immunity issue similar to the one that was tried in Monte
The
is inappropriate for resolution at the motion to dismiss stage.
Fulop and
allegations here create a factual issue as to whether Mayor
ings or
Officer Lewis (a) acted properly to maintain order at public meet
opposition to
instead (b) sought to prevent Fernandes from vocalizing his
the City’s actions in connection with his Property.
Defendants further suggest that this alleged arrest, even if
v. Howards,
retaliatory, was supported by probable cause. See Reichie
541 Fed. Appx.
132 S. Ct. 2088, 2093 (2012). See also Primrose v. Mellot,
decided
177, 180 n.2 (3d Cir. 2013) (noting that Third Circuit has “not
,” and
whether the logic of Hartman applies to retaliatory arrest claims
a
reasoning that an officer who the plaintiff claimed issued her
be entitled
retaliatory summons for engaging in protected speech would
had
to qualified immunity because a jury had found that the officer
WL
probable cause.); Cresci v. Aquino, No. CV134695KMJBC, 2017
of
1356322, at *10 (D.N.J. Apr. 10, 2017). Again, such assertions
plaint alleges
qualified immunity leapfrog the factual issue here. The Com
simply
that Fernandes was not being disruptive, and that the Mayor
, 88—89.) Such
ordered him removed without cause. (See Compi. ¶J 44—46
for the
application of force, without probable cause (and, afortiori,
a
unconstitutional purpose of silencing the Plaintiff) would set forth
.
clearly established violation. That is what the Complaint alleges

31

, and should be
While qualified immunity issues must be addressed
ire factual
resolved, at the earliest possible stage, they often requ
the factual record
development. This is such a case. The need to develop
inappropriate at
renders dismissal on the basis of qualified immunity
9
this stage.’
of Count 3
Qualified immunity, then, does not bar the assertion
having allegedly
against Mayor Fulop and Officer Fulop based on their
forcibly removed Fernandes from the meeting.
Mayor Fulop ‘s Defamatory Statements
ments, too,
Count 3 alleges that Mayor Fulop’s defamatory state
First Amendment
constituted retaliation for Fernandes’s exercise of
in any event, but I
rights. Count 3, as I have stated, is going forward
discuss this alternative theory briefly.

19

Although qualified immunity is a question of law
s on
determined by the Court, when qualified immunity depend
ined by the
disputed issues of fact, those issues must be determ
S.Ct. 2151,
jury. See Johnson v. Jones, 515 U.S. 304, 313, 115

on disputed
132 L.Ed.2d 238 (1995) (qualified immunity may turn
485, 491 (3d Cir.1995)
issues of fact); Karnes v. Skrutski, 62 F.3d

ined by
(“While the qualified immunity defense is frequently determ
factual
courts as a matter of law, a jury should decide disputed
tion of
issues relevant to that determination.”). Motive is a ques
jury, which has the opportunity
fact that must be decided by the
and
to hear the explanations of both parties in the courtroom
472 U.S. 511,
observe their demeanor. See Mitchell v. Forsyth,
intent is a
529, 105 S. Ct. 2806, 86 L.Ed.2d 411 (1985) (improper
(3d Cir.
pure question of fact); Walker v. Horn, 286 F.3d 705, 710
2002).
328 F. App’x 788, 791
Monteiro, 436 F.3d at 405. See also Newland v. Reehorst,
is generally unwise to
(3d Cir. 2009) (non-precedential) (cautioning “that it
pleading stage as it is
venture into a qualified immunity analysis at the
ty of cases.”); Schrob v.
necessary to develop the factual record in the vast majori
tiffs allegations are
Catterson, 967 F.2d 929, 938 (3d Cir. 1992) (“[hf the plain
e, but the defendant
sufficient as a matter of law to avoid an immunity defens
discovery may be necessary before
denies engaging in the alleged conduct, then
(internal quotation marks
the question of qualified immunity] can be resolved”
omitted)).
32

The Third Circuit has stated that its “cases do not provide
rnment
government officials with clear guidance as to when a gove
constitute unconstitutional retaliation.”
And very
Zaloga v. Borough of Moosic, 841 F.3d 170, 176 (3d Cir. 2016).
the Court
recently, in Mirabella v. Villarci, 853 F.3d 641 (3d Cir. 2017),
level of
reminded us not to “define clearly established law at a high
742, 131 5. Ct.
generality.”’ Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731,
to be free from
2074, 2084 (2011)). Thus it held that although “the ‘right
“right to be free
retaliation for one’s speech,”’ was clearly established, the
government”
from a retaliatory restriction on communication with one’s

official’s own speech can

[]

was not. Id. at 653 (quoting Reichie, 132 S. Ct. at 2094)).
with the
Still, two judges in the District of Delaware have grappled
mation is
specific question of whether freedom from retaliatory defa
re
clearly established, only to reach different conclusions. Compa
was not
Rappa v. Hollins, 991 F. Supp. 367, 382 (D. Del. 1997) (“it
right not to be
clearly established that [the plaintiff] had a constitutional
in
subjected to defamatory remarks in retaliation for engaging
178 F.3d
constitutionally protected First Amendment activity”), aff’d,
. 2d 622, 641
1280 (3d Cir. 1999), with Neuberger v. Gordon, 567 F. Supp
right
(D. Del. 2008) (framing the relevant inquiry as “whether the
•20
retaliated against was clearly established”)
This, however, is not an allegation of defamation alone, but

on a
defamation-plus. The Mayor’s alleged statements might take
e
different hue in the context of his ordering the police to remov
1178,
Agreeing with Rappa are, e.g., Blume v. Meneley, 283 F. Supp. 2d
for the
1188 (D. Kan. 2003) (“[Ejven if a cause of action exists under § 1983
established
alleged defamation, that cause of action is not based on a clearly
have been aware at the time.”), and
legal principle of which defendant [] should
ing “it was
Guy v. State of Iii., 958 F. Supp. 1300, 1310 (N.D. 111. 1997) (reason
basis for a
not ‘clearly established’ that defamation alone could provide the
violation of plaintiffs first amendment rights”).

20

33

will
Fernandes. I therefore will not perform surgery on Count 3, but
permit the allegations to be developed in discovery.
on
In sum, the motion to dismiss Count 3 as against Mayor Fulop
grounds of qualified immunity is denied.
2. Fourth Amendment Claim (Count 4) Against Lewis and
Mayor Fulop as Individuals
Plaintiffs have sufficiently alleged Lewis’s and Mayor Fulop’s
r the
violation of Femandes’s Fourth Amendment rights. As to whethe
that
right violated was clearly established, “Police officers clearly know
e that
they need probable cause to arrest someone and we can assum
t
they know they face personal liability if they arrest someone withou
2013); see
probable cause.” George v. Rehiel, 738 F.3d 562, 583 (3d Cir.
the
also Ciardiello v. Sexton, 390 F. App’x 193, 198 (3d Cir. 2010) (“In
able
context of a false arrest claim, we may review whether a reason
the
officer could have believed that probable cause existed to arrest
plaintiff. . . .“ (internal quotation marks omitted)); Rios v. City of
*6 (D.N.J. Nov. 12,
Bayonne, No. CIV. 2:12-4716, 2013 WL 6008481, at
and
2013) (“As to false arrest, false imprisonment, and illegal search
sion
seizure, the factual inquiry is whether the information in the posses
). As
of the arresting officers was sufficient to constitute probable cause.”
PD
the Complaint describes the scene, Lewis and the other arresting
they
officers had virtually no reason to arrest Fernandes (to the extent
did arrest him) other than Mayor Fulop’s instruction.
Whether it was objectively reasonable for Mayor Fulop to believe
allegedly
that probable cause supported Fernandes’s arrest when he
the
directed Lewis and other PD officers to remove Fernandes from
ns
meeting is an independent inquiry, and one that raises factual questio
504
I cannot resolve at this stage. See Blaylock v. City of Philadelphia,
is one of
F.3d 405, 411 (3d Cir. 2007) (“The qualified immunity standard
the
objective legal reasonableness. Although the question of what facts
arresting officer knows is relevant to the inquiry, his subjective
34

quotation marks and
motivation for making the arrest is not.” (internal
Dist., 211 F.3d 782,
citations omitted)); cf Merkle v. Upper Dublin Sch.
arrest may have had
794 (3d Cir. 2000) (explaining that instigators of an
er that would
information they did not provide to the arresting offic
even if the arresting
negate their reasonable belief of probable cause,
officer had a reasonable belief of probable cause).
Fulop are
Accordingly, I cannot determine whether Lewis and
light on what
immune from suit until the factual record sheds more
vior they observed in
information they had before them (e.g., what beha
Fernandes).
D. Common Law Claims
defamation and
Plaintiffs also seek to hold Mayor Fulop liable for
that New Jersey state
Jersey City liable for negligence. No one disagrees
law applies to these claims.
1.

Count 5—Defamation

defamation, aside
Under New Jersey law, the essential elements of
defamatory statement
from damages, are “‘(1) the assertion of a false and
on of that statement to
concerning another; (2) the unprivileged publicati
negligence by the
a third party; and (3) fault amounting at least to
984 A.2d 921, 927—
publisher.” G.D. v. Kenny, 411 N.J. Super. 176, 186,
(2011) (quoting
28 (App. Div. 2009), affd, 205 N.J. 275, 15 A.3d 300
969 A.2d 1097
Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 585,
on), not libel (written
(2009)). Plaintiffs allege only slander (oral defamati
pleading standards of
defamation). (see Compl. ¶j 92—98) To satisfy the
d facts sufficient to
Fed. R. Civ. P. 8, a plaintiff must at a minimum “plea
fact of their
identify the defamatory words, their utterer and the
09-1683(JLL), 2010
publication.” Foy v. Wakefem Food Coip., No. CIV.A
Zoneraich v. Overlook
WL 147925, at *6 (D.N.J. Jan. 7, 2010) (quoting

35

Div.
Hosp., 212 N.J. Super. 83, 514 A.2d 53, 63 (N.J. Super. Ct. App.
1986))

21

per
Additionally, a slander claim not rising to the level of slander
in
se “(e.g., accusation of a crime, a loathsome disease, misfeasance
of
business, or serious sexual misconduct”) generally require[s} proof
210
special damages—an economic or pecuniary loss.” W.J.A. v. D.A.,
Westfield
N.J. 229, 240, 43 A.3d 1148, 1154 (2012); see also Marino v.
*6 (D.N.J.
Bd. of Educ., No. 16CVOO361WHWCLW, 2017 WL 216691, at
al or
Jan. 18, 2017) (“‘Special damages are defined as harm of a materi
643
pecuniary nature.” (quoting Ward v. Zelikovsky, 136 N.J. 516, 540,
A.2d 972, 984 (1994))). Under the Federal Rules of Civil Procedure,
special damages “must be specifically stated.” Fed. R. Civ. P. 9(g).
The Complaint, by reference to excerpts from counsel’s February 8,
ce
2016 letter to Jeremy Farrell, alleges that Mayor Fulop told audien
“every
members at the February 3, 2016 meeting that Fernandes attends
single one of these meetings,” “made a disruption for twenty to thirty
ty has
minutes’ or five to ten minutes’” at meetings, and that the Proper
been “cited for violations.” (Compi. ¶ 47) The Complaint further alleges
Mayor
that their counsel’s February 8, 2016 letter informed Farrell that
Fulop’s previous statements were untrue. Nevertheless, Mayor Fulop
ntled
stated during a March 14, 2016 meeting that Fernandes “is a disgru
by
person because his property had been cited for numerous violations
(Id.
the City, and that the matter is currently the subject of litigation.”

¶J

52, 95)
The defendants make two arguments as to why the Plaintiffs fail to
state a prima facie case. First, they say, Mayor Fulop’s alleged
Although New Jersey imposes a heightened pleading standard whereby a
claimant must allege the specific defamatory words used, in this Court the
Inc.,
ordinary federal pleading standard applies. Mangari v. Corp. Synergies Grp.,
a plaintiff “must allege the
834 F.Supp.2d 199, 204 (D.N.J. 2011) (noting that
ent
elements of defamation as applied by New Jersey law to a degree of suffici
specificity to satisfy the standards outlined in Rule 8.”).

21

36

that they
statements were not false. The Complaint, however, alleges
motion.
were. Such questions of fact cannot be resolved on this
Second, the defendants argue that Plaintiffs have failed to
ffs allege that
adequately plead special damages. (Id. 17) I agree. Plainti
ed [them] to
Mayor Fulop’s slander has “injured their reputation, caus
business.”
lose the goodwill o[f] others, and has injured [them] in their
utions of
(Compi. ¶ 98) These are not statements, such as false attrib
uct his
criminality or accusations that a person cannot properly cond
an inference of
business, trade, or profession, that naturally give rise to
Co., 250 N.J.
damages. See generally DeVries v. McNeil Consumer Prod.
Complaint
Super. 159, 166, 593 A.2d 819, 824 (App. Div. 1991). The
Plaintiffs have
provides no specific (or even general) facts suggesting that
not state what
suffered economic or pecuniary loss. For example, it does
enjoy[ed].
business Plaintiffs are in, or what goodwill they allegedly
er, and the
Accordingly, the Complaint fails to state a claim for sland
522
motion to dismiss is granted as to Count
Count 6—Negligence
2.

four
Under New Jersey law, a cause of action for negligence has
duty, (3)
essential elements: “(1) a duty of care, (2) a breach of that
221 N.J.
proximate cause, and (4) actual damages.” Townsend v. Pierre,
s omitted). Here,
36, 51, 110 A.3d 52, 61(2015) (internal quotation mark
it to alter
Plaintiffs allege the Building Department issued them a perm
Property after
the Property, then ordered Plaintiffs to stop work on the
siding had been removed, resulting in weather damage.
suit for
Public entities, however, enjoy certain immunities from a
negligence
negligence. In particular, “[p]ublic entities are immune from
reach
Because Plaintiffs have not stated a claim for slander, I do not
ity under
whether Mayor Fulop would be entitled to state law qualified immun
Stat. Ann. § 59:1-1 et seq., or
the New Jersey Tort Claims Act (“NJTCA”), N.J.
ment of filing
whether Plaintiffs’ alleged failure to comply with that Act’s require
the Plaintiffs
a TCN renders their slander claim jurisdictionally infirm. Should
seek to amend, those issues might again arise.
22

37

suits unless such suits are specifically authorized by the NJTCA.
Accordingly, the NJTCA must be strictly construed to permit lawsuits
only where specifically allowed.” Gourley v. Twp. of Monroe, No. A- 159511T2, 2013 WL 68715, at *3 (N.J. Super. Ct. App. Div. Jan. 8, 2013)
(citation omitted); see also N.J. Stat. Ann.

§ 59:1-2 (West) (“[Iti is hereby

declared to be the public policy of this State that public entities shall
only be liable for their negligence within the limitations of this act and in
accordance with the fair and uniform principles established herein.”)
The NJTCA explicitly immunizes public entities such as the City
from suits for damages based on denial or suspension of a permit or
similar authorization:
A public entity is not liable for an injury caused
by the issuance, denial, suspension or
revocation of, or by the failure or refusal to
issue, deny, suspend or revoke, any permit,
license, certificate, approval, order, or similar
authorization where the public entity or public
employee is authorized by law to determine
whether or not such authorization should be
issued, denied, suspended or revoked.
N.J. Stat. Ann.

§ 59:2-5.

The applicability of the NJTCA immunity is apparent from the face
of the Complaint. It may be possible to plead around it in an amended
version of Count 6. As it stands, however, Count 6 must be dismissed.
W.

CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss the

complaint is GRANTED in part and DENIED in part, as follows:
A. The motion is granted as to Counts 2, 5, and 6, which are
dismissed in their entirety, WITHOUT PREJUDICE to the
filing of a proposed amended complaint within 30 days.
B. The motion is denied as to Count 1, which remains against
Jersey City; and
C. The motion is denied as to Counts 3 and 4, which remain
38

against Jersey City, Mayor Fulop in his individual capacity,
and Anthony B. Lewis in his individual and official
capacities.

Dated: June 27, 2017

¼cJK VIN MCNULTY
United States District

39

u

e