DIAZ v. CITY OF PASSAIC et al
Filing
80
OPINION. Signed by Judge John Michael Vazquez on 11/19/2019. (sm)
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD DIAZ,
Plain
Civil Action No. 16-9282
V.
OPINION
CITY OF PASSAIC, et al,
Defendants.
John Michael Vazpuez. U.S.D.J.
The current matter comes before the Court on the motions to dismiss Plaintiff’s Second
Amended Complaint (the “SAC”), D.E. 51, filed by (1) Alex Blanco, D.E. 62; (2) the City of
Passaic (“Passaic” or the “City”), D.E. 63; and (3) Gary Schaer, D.E. 64. Plaintiff Richard Diaz
opposed the motions, D.E. 67, and Defendants filed briefs in reply, D.E. 72, 75, 76.’ The Court
reviewed all the submissions in support and in opposition and considered the motions without oral
argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons stated below,
the motions to dismiss are granted and the Second Amended Complaint is dismissed.
‘In this Opinion, Blanco’s brief in support of his motion to dismiss (D.E. 62-1) will be referred to
as “Blanco MTD” and his reply brief (D.E. 75) will be referred to as “Blanco Reply”; Passaic’s
brief in support of its motion to dismiss (D.E. 63-1) will be referred to as “Passaic MTD” and its
reply brief(D.E. 76) will be referred to as “Passaic Reply”; Schaer’s brief in support of his motion
to dismiss (D.E. 64-I) will be referred to as “Schaer MTD” and his reply brief(D.E. 72) will be
referred to as “Schaer Reply”; and Plaintiffs brief in opposition to Defendants’ motions (liE. 67)
will be referred to as “Pif. Opp.”.
I.
FACTUAL AND PROCEDURAL BACKGROUND2
This matter involves allegations that Plaintiff, former Public Safety Director for the City,
was unlawifihly removed from his position as political retribution for his mayoral campaign. For
purposes of the pending motion, the Court need not retrace this case’s lull factual and procedural
history. The Court instead incorporates by reference the detailed background in its January 28,
2019 Opinion and Order that dismissed the Amended Complaint (the “FAC”) without prejudice.
D.E. 45, 46.
Diaz filed the SAC on March 19, 2019. D.E. 51. Like the FAC, the SAC generally alleges
that Defendants violated Plaintiff’s constitutional rights while retaliating against Diaz for his
mayoral campaign.3 In the FAC, among other things, Plaintiff alleged violations of procedural
due process, substantive due process, and equal protection. In the SAC, Plaintiff changes his
theory and now asserts a First Amendment political affiliation retaliation claim4 pursuant to 42
The Court draws the following facts from the SAC, which are taken as true for the purposes of
the current motion. See James i’. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012).
2
Paragraph 14 of the SAC indicates that “[t]urther, and relating to Plaintiff being elected to office
of Mayor, I was advised on numerous occasions by Zaida Polanco, who was then a councilwoman,
that Schaer would not let it happen.” SAC ¶ 14 (emphasis added). The Court assumes that the “I”
should be “Plaintiff.” In addition, although this paragraph seems to indicate that Plaintiff was in
fact elected as mayor, this allegation is not repeated in the SAC. The SAC also does not indicate
on or about when the “numerous occasions” occurred.
Plaintiffs First Amendment claim is not clearly pled in the SAC. It appears that Plaintiffs claims
could be construed either as claims for political affiliation retaliation or as claims for retaliation
for protected speech by a public employee under Pickering v. Bd. of Educ., 391 US. 563 (1968)
and its progeny. See, e.g., Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019).
Because the parties’ briefs focus on political affiliation retaliation, the Court construes the claim
as such. In addition, the allegations in the SAC sound in political affiliation. However, because
the Court is granting Plaintiff leave to amend, if Plaintiff is asserting a different theory of liability
than that analyzed herein, Plaintiff must make his theory clear in his amended pleading.
‘
2
U.S.C.
§
1983 and the New Jersey Civil Rights Act (“NJCRA”). To that end, the SAC pleads new
factual allegations to substantiate Plaintiffs political retaliation claims.
Plaintiff was named the City’s Public Safety Director in 2013. SAC ¶ 11. Plaintiff alleges
that in September 2016, he had a batheque at his home and announced his candidacy for mayor.
Id.
¶
15. Before the barbeque, plaintiff made his intentions to run known “to members of the
community and the City’s Governing Body[.” Id.
¶
12. It was clear, however, that Defendant
Schaer, the “political ‘boss’ of the City,” did not support Plaintiffs campaign. id.
¶J
13-14. In
fact, at some time in 2016 before the barbeque, Schaer made clear to Plaintiff that Schaer did not
support Plaintiffs mayoral candidacy. At the time, Plaintiff told Schaer that he did not intend to
run for mayor. Id.
¶
13. Moreover, non-party councilwoman Zaida Polanco advised Plaintiff “on
numerous occasions” that Schaer did not support Plaintiff. Id.
¶ 14.
The Monday after the barbeque, Plaintiff was informed that Schaer arrived at City Hall and
was “visibly upset,” itt.
¶
17, and then had a closed-door meeting with Blanco and the City’s
Business Administrator. During the meeting, Plaintiff heard Schaer shout Plaintiffs name several
times. Id.
¶ 20.
The following day, Plaintiff was placed on administrative leave5 from his position
as Public Safety Director based on an accusation that Plaintiff interfered with an investigation
involving sexual harassment of City employees. Id.
¶ 21-24.
Plaintiff claims that the allegation
that he interfered with an investigation was a pretext and that he was actually suspended as
retaliation for his mayoral campaign. Id.
¶ 29, 38.
a hearing before being placed on leave. Id.
Plaintiff adds that he was not given notice or
¶IJ 28-29.
Similar to the FAC, Plaintiff also includes
claims that retaliatory disciplinary action was also taken against a Sergeant Bordamonte,
The SAC presents conflicting allegations as to whether Plaintiffs administrative leave was with
or without pay. Initially, Plaintiff claims that it was with pay, Id. ¶ 21, but later seems to indicate
that it was without pay, id. ¶ 27.
3
apparently because Bordamonte was present when Plaintiff announced his run for mayor. Id.
¶IJ
30-3 7.
The SAC brings two counts, the first under
Id.
§ 1983 and the second pursuant to the NJCRA.
¶{ 39-50. Both counts are based on the same theory: unlawifil retaliation against Plaintiff for
announcing his mayoral candidacy in violation of rights to freedom of expression, assembly, and
association. Id.
II.
MOTION TO DISMISS STANDARD
Defendants seek to dismissal Plaintiffs political retaliation claims pursuant to Rule
I 2(b)(6). Federal Rule of Civil Procedure I 2(b)(6) governs motions to dismiss for “failure to state
a claim upon which relief can be granted.” For a complaint to survive dismissal under the rule, it
must contain sufficient factual matter to state a claim that is plausible on its face. Ashcroft v. Jqbal,
556 U.S. 662, 678 (2009) (quoting Bell AtL Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
is facially plausible “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although the
plausibility standard “does not impose a probability requirement, it does require a pleading to show
more than a sheer possibility that a defendant has acted unlawfiilly.” Connetly v. Lane Const.
Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal quotation marks and citations omitted). As a
result, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery will
uncover proof of [his] claims.” Id. at 789.
In evaluating the sufficiency of a complaint, district courts must separate the factual and
legal elements. Fowterv. UPMCShadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements
of the elements of a claim are legal conclusions, and therefore, not entitled to a presumption of
truth. Bunch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court. however,
4
“must accept all of the complaint’s well-pleaded facts as true.” Fowler, 578 F.3d at 210. Even if
plausibly pled, however, a complaint will not withstand a motion to dismiss if the facts alleged do
not state “a legally cognizable cause of action.” Turner v. J.F. Morgan C’hase & C’o., No. 14-7148,
2015 WL 12826480, at *2 (D.N.J. Jan. 23, 2015).
III.
LEGAL ANALYSIS
Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 and the NJCRA, N.J.S.A. 10:6-2.
Section 1983, in relevant part, provides as follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress[.]
Section 1983 does not provide substantive rights; rather, Section 1983 provides a vehicle for
vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
To state a Section 1983 claim, a plaintiff must demonstrate that “(1) a person deprived him of a
federal right; and (2) the person who deprived him of that right acted under color of state or
territorial law.” Burt v. CFG Health Sys., No. 15-2279, 2015 WL 1646849, at *2 (D.N.J. Apr. 14,
2015).
The NJCRA affords a private cause of action to
[a]ny person who has been deprived of any substantive due process or equal
protection rights, privileges or immunities secured by the constitution or
laws of the United States, or any substantive rights, privileges or immunities
secured by the constitution or laws of this State, or whose exercise or
enjoyment of those substantive rights, privileges or immunities has been
interfered with or attempted to be interfered with, by threats, intimidation
or coercion by a person acting under color of law.
5
NJ.S.A. 10:6-2. The “NJCRA was modeled after
§
1983, [and so] courts in New Jersey have
consistently looked at claims under the NJCRA through the lens of
§
1983 and have repeatedly
construed the NJCRA in terms nearly identical to its federal counterpart.” Velez v. Fuentes, No.
15-6939, 2016 WL 4107689, at *5 (D.N.J. July 29, 2016) (internal quotations and citation
omitted). Therefore, the Court considers Plaintiffs Section 1983 and NJCRA claims together.
1. Political Retaliation as to Blanco and Schaer
To set forth aprimafacie claim for political retaliation, a plaintiff must plead that “(1) she
was employed at a public agency in a position that does not require political affiliation, (2) she
was engaged in constitutionally protected conduct, and (3) this conduct was a substantial or
motivating factor in the government’s employment decision.” Gaul v. N.J. Meadowlands Comm’n,
490 F.3d 265, 271 (3d Cir. 2007). Defendants argue that Plaintiff fails to establish the first and
third elements of his prima facie claim. In this instance, the first element is dispositive.
“Employment decisions predicated on political affiliation are permitted when
‘policymaking’ positions are at issue.” Young v. Kisenwether, 902 F. Supp. 2d 548, 555 (M.D. Pa.
2012) (citing Gall!, 490 F.3d at 271); see also Busa v. Township of Gloucester, 458 F. App’x 174,
176 (3d Cir. 2012) (“While the dismissal of public employees for political reasons may constitute
an impermissible infringement upon constitutional rights, an exception is often made for
employees holding policy-making position, as such employees may properly be required to support
the policy initiatives of elected officials.”). The “key facto?’ to determine whether ajob involves
policymaking is “whether [the employee] has meaningifil input into decision making concerning
the nature and scope of a major
[]
program.” Galli, 490 F.3d at 271 (quoting Armour v. County
ofBeaverton, Pa., 271 F.3d 417, 420 (3d Cir. 2001)). A court should also consider “whether the
employee has duties that are non-discretionary or non-technical, participates in discussions or other
6
meetings, prepares budgets, possesses the authority to hire and fire other employees, has a high
salary, retains power over others, and can speak in the name of policymakers.” Id.
In Busa, for example, the plaintiff brought suit after he was informed that he would not be
re-appointed as the Director of Public Works in a new mayor’s administration. Busa was a member
of the same party as the new mayor, however, Busa alleged that he was perceived as being a
member of the other party or part of “a different faction” of the new mayor’s party. Busa v.
Township of Gloucester, No. 10-1396, 2011 WL 1458026, at *1 (D.N.J. Apr. 15, 2011). To
determine whether the Director of Public Works position required political affiliation, the district
court considered township ordinances, the New Jersey Civil Service Commission, and the
Faulkner Act, N.J.S.A. 40:69A-1, et seq. Busa, 2011 WL 1458026, at *5 Critically, “[a]ccording
to the Township organizational ordinance, the Director of Public Works is the head of the division
of streets, sanitation, and parks and playgrounds” and is “responsible for the proper and efficient
conduct of all public works functions of the Township government.” Id. In addition, it was a nontenured position that reported directly to the mayor. Id. Based on this information, the district
court determined that the Director of Public Works was a policy position. As a result, the district
judge concluded that the defendants demonstrated that the position was subject to dismissal based
on political affiliation.
The plaintiff, therefore, could not establish a prima facie political
retaliation claim.6 Id. On appeal, the Third Circuit affirmed the district court’s conclusion that
the plaintiffs prima facie political retaliation claim failed as a matter of law. Busa, 458 F. App’x
6
Although the issue was not raise by the parties, the Court notes that because Busa was a member
of the same party as the mayor who removed him from the Director of Public Works position,
Busa demonstrates that political affiliation claims may be premised on removal because an
individual supports a different faction within the same party, as is the case here, rather than solely
along traditional party lines. See also GaIli, 490 F.3d at 272 (“Accordingly, we have held that a
plaintiff can meet the second prong of a prima facie political discrimination claim if she suffers
because of action support for a losing candidate within the same political party.”).
7
at 177-78; see also Ness v. Marshall, 660 F.2d 517, 522 (3d Cir. 1981) (affirming finding that city
solicitor occupied a policymaking position such that mayor had the right to dismiss solicitor due
solely to political affiliation).
Here, Blanco7 contends that Plaintiff occupied a high-level, policymaking position such
that Plaintiff cannot plead a prima fade retaliation claim. Blanco MTD at 23. Thus, the critical
question is whether the position of Public Safety Director for the City constituted a policymaking
position.
While the SAC clearly sets forth the position, it fails to indicate the duties and
responsibilities of the office. As a result, Blanco relies on Passaic Ordinances
§ 5-85 and § 5-86
as they existed during the relevant time period.8
“To decide a motion to dismiss, courts generally consider only the allegations contained in
the complaint, exhibits attached to the complaint and matters of public record.” Pension Benefit
Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). A city ordinance
constitutes a public record. See, e.g., Campbell v. Conroy, 55 F. Supp. 3d 750, 754 n. 3 (W.D. Pa.
2014) (relying on text of an ordinance to decide a Rule 12(b)(6) motion to dismiss because it was
a public record); see also Moore USA., Inc. v. Standard Register Co., 139 F. Supp. 2d 348, 363
(W.D.N.Y. 2001) (“[C]ourts that consider matters of public record in a Rule 12(b)(6) motion are
limited to things such as statutes, case law, city charters, city ordinances, criminal case
dispositions, letter decisions of government agencies, published reports, records of administration
agencies, or pleadings in another action.”). Moreover, Plaintiff does not object to Defendants’
In addition to asserting his own arguments, Schaer joined in Blanco’s motion to dismiss. Schaer
MTD at I n.1.
8
Article X, which included § 5-85 and 5-86, was amended in 2016 to eliminate the position of
Public Safety Director and return control of the Police and Fire Departments to their respective
chiefs. See City of Passaic Ordinance No. 2085-16 (Dec. 6,2016).
8
citation to the City ordinances. As a result, the Court considers the City Ordinances in deciding
the current motion.
As set forth in the Ordinances
§ 5-85 and 5-86, the Public Safety Director of Passaic was
appointed by the Mayor to serve during the Mayor’s term; reported to the Mayor; and was in
charge of the Police Department, the Fire Department, and the Office of Emergency Management.
City of Passaic Ordinance No. 1920-12 at 1-2 (Nov. 8, 2012) (enacting Article X, which
established the Public Safety Director role and responsibilities). The Public Safety Director was
responsible for all employees in these departments, which included hiring, training, and discipline.
In addition, the Public Safety Director was responsible for overseeing the daily operations for these
departments; formulating policies, plans, and procedures for the departments; developing and
administering an annual budget; and “otherwise Thnction[ing] in an executive capacity in
evaluating, organizing, and directing the Police Department, Fire Department and Office of
Emergency Management.” Id. at 2. Thus, Ordinances
§ 5-85 and 5-86 make clear that Plaintiff
was the decision maker for major departments for the City. Accordingly, much like Busa, the
Passaic Public Safety Director role involved policymaking, such that political affiliation was an
appropriate requirement for the job.
Plaintiff argues that he did not hold a policymaking position because the mayor had the
power to appoint and oversee the position. Plf. Opp. at 15-16; 19-20. Yet, the same was true for
the Department of Public Works position in Busa. Burn, 2011 WL 1458026, at *5 As discussed,
the district court determined that the Director of Public Works position was “properly subject to
dismissal on the basis of party affiliation,” id. at *5, and this conclusion was affirmed by the Third
Circuit, Busa, 458 F. App’x at 178. Accordingly, the Court disagrees with Plaintiff’s argument.
9
Because the Public Safety Director role involved policymaking, such that political
affiliation was an appropriate requirement for the job, Plaintiffs prima facie political affiliation
retaliation claim fails as a matter of law.
2. Political Retaliation as to the City
Plaintiff also asserts his political affiliation retaliation claims against the City. The City
seeks to dismiss Plaintiffs claims because the SAC fails to state a cognizable
§
1983 claim against
a municipal entity. Passaic MTD at 7-8. A local government cannot be sued under
§
1983 for an
injury inflicted by its employees or agents. Rather, a municipality may only be liable for purpose
of § 1983 if the “local government’s policy or custom inflicted the injury in question.” Estate of
Roman v. City ofNewark, 914 F.3d 789, 798 (3d Cir. 2019) (quotingMonell v. Dep ‘t ofSoc. Sen’s.,
436 U.S. 658 (1978) (internal punctuation marks omitted). In other words, Monell liability exists
if “the municipality, through one of
its
policymakers, affirmatively proclaimed the policy, or
acquiesced in the widespread custom, that caused the violation.” Adams v. City ofAtlantic City,
294 F. Supp. 3d 283, 300 (D.N.J. 2018) (quoting Watson v. Abington Township, 478 F.3d 144,
155-56 (3d Cir. 2007)).
Here, Plaintiffs claims against the City fail because Plaintiff does not establish that a
constitutional wrong occurred. As discussed, because the Court concludes that Plaintiff held a
position that involved political affiliation, Plaintiff cannot plead aprimafacie claim for political
retaliation. Without a constitutional violation, the City cannot be held liable under Monell.9 See
Even if a constitutional wrong existed, Plaintiff fails to adequately allege the requisite policy or
custom. Relying on Pembaur v. Cincinnati, 475 U.S. 469 (1986), Plaintiff contends that a policy
existed because Blanco and Schaer were the decision makers for the City. Plaintiff continues that
because of their decision-making authority, a Monell claim can stand solely based on their conduct.
Plf. Opp. at 14-16. Pembaur “makes clear that an official with policymaking authority can create
official policy, even by rendering a single decision.” McGreay i Stroup, 413 F.3d 359, 367-68
(3d Cir. 2005). In other words, to attach Monell liability to a municipality based on a single
‘
10
Ma/tern c City of Sea Isle, 131 F. Supp. 3d 305, 318 (D.N.J. 2015) (“In the absence of a
constitutional violation, [Defendant] cannot be held liable under
§
1983 for failure to train or for
acquiescing in an unconstitutional custom.”). The claims asserted against in the City, therefore,
are dismissed.
IV.
CONCLUSION
For the reasons discussed above, Defendants’ motions to dismiss (D.E. 62, 63, 64) are
GRANTED. A court must grant leave to amend a complaint “absent evidence that amendment
would be futile or inequitable.” Shone v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). An
amended complaint would be futile if it “would fail to state a claim upon which relief could be
granted.” Id. at 115. Given Plaintiff’s legal theories, the Court has serious concerns that any
decision, “the alleged Constitutional violation must be considered an official action taken by the
municipality through an individual that has final policymaking authority.” Mrazek v. Stafford
Township, No. 13-1091, 2017 WL 1788655, at *9 (D.N.J. May 5,2017).
Plaintiffs argument, however, is not supported by the facts pled in the SAC. As to Schaer,
the SAC pleads that he has de facto control over the City based on his “political influence”,
“patronage power”, and “ability to influence State aid decisions.” SAC ¶ 9. Even if accepted as
true, defacto power is not the same as having final policymaking authority. As a result, Schaer’s
decisions, assuming that one is even pled, cannot amount to a City policy or custom. As mayor,
Blanco’s decisions could conceivably create a policy or custom as recognized in Pembaur. But
the SAC fails to allege sufficient facts by which the Court could assume that BJanco made the
decision to place Plaintiff on administrative leave, or even that this decision was final and
unreviewable. See Hill i’. Borough ofKutztown, 455 F.3d 225, 245 (3d Cir. 2006) (explaining that
for Monell liability to attach to the decision from an official with final policymaking authority that
decision must, among other things, be final and unreviewable).
For purposes of Monell liability, a custom “can be proven by showing that a given course
of conduct, although not specifically endorsed or authorized by law, is so well-settled and
permanent as virtually to constitute law.” Estate ofRoman, 914 F.3d at 798 (quoting Bielevicz i
Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)). To establish the alleged custom of political
retaliation, Plaintiff argues that an incident involving a former sergeant with the Passaic Police
Department, Roy Bordamonte, which is discussed in the SAC, establishes a custom of political
retaliation. SAC ¶J 30-37. The fact that Plaintiff was attempting to plead a Monell claim based
on an unconstitutional custom is not at all clear in the SAC. The two incidents are factually
distinct, and the SAC makes no efforts to tie to the two events together such that they could
establish a pattern of misconduct.
11
attempted amendment will be fUtile. However, because the SAC relies on entirely new theories,
the Court will provide Plaintiff with a final opportunity to amend his pleading. Accordingly, the
Second Amended Complaint is dismissed without prejudice and Plaintiff may file an amended
pleading that is consistent with this Opinion, within thirty (30) days. If Plaintiff fails to file a third
amended complaint within the time allotted, this matter will be dismissed with prejudice. An
appropriate Order accompanies this opinion.
Dated: November 19, 2019
4
John Michael Vazqu) U.W.J.
12
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