MANATA v. UNION COUNTY PROSECUTOR'S OFFICE et al
Filing
104
OPINION & ORDER granting 85 Motion to Dismiss ; granting 87 Motion to Dismiss ; dismissing plaintiff's amended complaint without prejudice. Signed by Judge Claire C. Cecchi on 1/28/2025. (lag, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANTONIO MANATA,
Civil Action No.: 22-2005
Plaintiff,
v.
OPINION & ORDER
UNION
COUNTY
OFFICE, et al.,
PROSECUTOR’S
Defendants.
CECCHI, District Judge.
Before the Court is the motion to dismiss plaintiff Antonio Manata’s (“Plaintiff”) amended
complaint (ECF No. 27) (“AC”) filed by defendants Union County Prosecutor’s Office (“UCPO”),
State of New Jersey Office of the Attorney General (“OAG”), Matthew J. Platkin, and Richard
Burke (ECF Nos. 85), as well as the motion to dismiss filed by defendant David Hummel (ECF
No. 87) (collectively, “Defendants”). 1 Plaintiff opposed both motions (ECF Nos. 96, 97) and
Defendants replied in support (ECF Nos. 100, 101). 2 The Court decides this matter without oral
argument pursuant to Federal Rule of Civil Procedure 78(b). For the reasons set forth below,
Defendants’ motions are GRANTED.
I.
BACKGROUND
A. Factual History
Plaintiff was employed as a Lieutenant in the Clark Police Department for 25 years until
his scheduled retirement in February 2022. AC ¶ 1. At some point prior to September 2019,
The individual defendants are sued both in their personal and official capacity. The official capacities in which they
are named are as follows: Hummel as the Assistant Prosecutor and Legal Chief of the Investigative Division of the
UCPO, Platkin as the Attorney General of the State of New Jersey, and Burke as the Assistant Attorney General
assigned to Office of Public Integrity and Accountability. AC ¶¶ 3, 5, 6.
2
For ease of analysis, the Court considers the motions together.
1
1
Plaintiff began covertly recording his conversations with fellow members of the Clark Police
Department and others—including Clark Township Mayor Salvatore Bonaccorso, Chief of Clark
Township Police Department Pedro Matos, and Clark Police Department Captain Vincent
Concina—in order to “document incidents of prohibited discrimination and harassment.” Id. ¶ 14.
Plaintiff then contacted the town’s Municipal Attorney to file a discrimination complaint based on
the evidence collected through his recordings. Id. ¶¶ 17-18. After meeting with the Municipal
Attorney, Plaintiff was allegedly escorted from police headquarters and banned from returning to
work for the Clark Police Department. Id. ¶ 21. Plaintiff subsequently entered into a confidential
settlement agreement in January 2020 with Clark Township, Mayor Bonaccorso, Chief Matos, and
others. Id. ¶ 23. Under the terms of that agreement, Plaintiff was placed on administrative leave
from the Clark Police Department but was allowed to retain his status as an employee until his
scheduled retirement. Id. ¶ 24.
About six months after this agreement was signed, Plaintiff was questioned by the UCPO
regarding his allegations against the Clark Police Department. Id. ¶ 25. The UCPO then exercised
its supersession authority in June 2020 to assume control of the law enforcement and internal
affairs functions of the Clark Police Department. Id. ¶ 30. On October 30, 2020, Plaintiff was
contacted by the UCPO, which relayed that he was the subject of five Internal Affairs
investigations and one criminal complaint. Id. ¶ 34. Plaintiff responded by contacting defendant
Hummel, Assistant Prosecutor and Legal Chief of the Investigative Division of the UCPO, and
stating that the five internal affairs investigations against him were meant to be dropped as part of
his confidential settlement agreement with Clark Township. Id. ¶ 40. Hummel allegedly “advised
Plaintiff that UCPO would not abide by the settlement agreement.” Id. Plaintiff was later informed,
2
over a year later, that the criminal complaint against him was dropped, while four of the Internal
Affairs investigations ended in exoneration and one was sustained. Id. ¶ 43.
On January 11, 2022, shortly after being approved for a pension upon his scheduled
retirement, Plaintiff was informed by the UCPO that he was the subject of another Internal Affairs
investigation for alleged violations of Clark Police Department policy related to his recordings. Id.
¶¶ 48-49. After retiring on February 28, 2022, Plaintiff was told by the Municipal Attorney that,
due to the investigation, he was not retiring in good standing and was therefore ineligible to receive
his pension benefits. Id. ¶ 53. Plaintiff responded by sending letters to Hummel requesting that he
close the investigation which, according to Plaintiff, remained open “for no discernable reason.”
Id. ¶¶ 56-57. Hummel allegedly did not reply. Id. ¶ 58.
Plaintiff then filed the present lawsuit against defendants UCPO and Hummel on April 7,
2022. Id. ¶ 59. Shortly thereafter, the OAG, through its Office of Public Integrity and
Accountability (“OPIA”) assumed control of the Internal Affairs investigation into Plaintiff due to
the pending lawsuit. Id. ¶ 60. In October 2022, upon the request of OPIA, Plaintiff sat for a witness
interview in connection with an Attorney General investigation into the Clark Police Department
and Clark Township. Id. ¶¶ 63-66. There, Plaintiff learned that defendant Burke was leading the
Internal Affairs investigation into his past conduct. Id. ¶¶ 64, 67. Plaintiff asked an OPIA employee
to contact Burke, who allegedly refused to provide assurances that statements made during the
interview would not be used against him in the Internal Affairs investigation. Id. ¶¶ 69-70. Plaintiff
decided to refuse to “answer questions directly,” and instead provided a proffer of testimony he
would give once the Internal Affairs investigation was closed. Id. ¶ 72.
3
As of the filing of his amended complaint on November 23, 2022, the Internal Affairs
investigation into Plaintiff was still ongoing. 3 Id. ¶ 73. Consequently, Plaintiff has been unable to
collect his pension that was scheduled to begin upon his retirement. Id. ¶¶ 73, 82-83. Plaintiff
claims that there is no reason for the investigation to continue, and that it is only being prolonged
to “punish the whistleblower.” Id. ¶¶ 76-80. He asserts injuries including monetary damages,
emotional distress, and loss of reputation, and seeks both compensatory and punitive damages. Id.
¶ 88.
B. Procedural Background
Plaintiff filed his initial complaint on April 7, 2022, naming Hummel and the UCPO as
defendants. ECF No. 1. Plaintiff then filed his amended complaint on November 23, 2022, naming
all Defendants. ECF No. 27. He now asserts claims against Hummel, Platkin, and Burke 4 under
42 U.S.C. § 1983 for violation of his rights under the First and Fourteenth Amendment, Id. ¶¶ 8994, and claims against all Defendants under the New Jersey Civil Rights Act for violation of his
substantive due process and equal protection rights. Id. ¶¶ 107-08. He also alleges a violation of
the Conscientious Employee Protection Act (“CEPA”), N.J.S.A. § 34:19-1, et seq., and a civil
conspiracy amongst all Defendants. Defendants seek to dismiss all counts for failure to state a
claim pursuant to Rule 12(b)(6). ECF Nos. 85, 87.
II.
STANDARD OF REVIEW
A. Failure to State a Claim (Rule 12(b)(6))
Defendants claim in their motion to dismiss that any investigations into Plaintiff have since concluded. ECF No. 85
at n.1; see ECF No. 85-2, Ex. A (copy of public report detailing findings of investigation into Clark Township and
Clark Township Police Department leadership).
4
As noted, claims against the individual defendants are made against both their personal and professional capacities.
3
4
To survive dismissal under Rule 12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
evaluating the sufficiency of a complaint, a court must accept all well-pleaded factual allegations
as true and draw all reasonable inferences in favor of the non-moving party. Phillips v. Cty. of
Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). Factual allegations must support a right to relief that
is more than speculative. Twombly, 550 U.S. at 555. A complaint “that offers ‘labels and
conclusions’ or . . . tenders ‘naked assertions’ devoid of further factual enhancement,’” will not
suffice. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). The party seeking
dismissal under Rule 12(b)(6) bears the burden of demonstrating that no claim has been stated.
Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005).
III.
DISCUSSION
A. Sovereign Immunity
a. OAG, Burke, and Platkin
Claims against the OAG, as well as Burke and Platkin in their official capacities, are barred
by sovereign immunity. Pursuant to the Eleventh Amendment of the United States Constitution, a
state is “generally entitled to immunity in federal court from suits by private parties.” A.W. v.
Jersey City Pub. Schs., 341 F.3d 234, 238 (3d Cir. 2003); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984) (“[A]n unconsenting State is immune from suits brought in
federal courts by her own citizens as well as by citizens of another state.”) (internal quotations
omitted). This immunity from suit further “extends to state agencies as well as state officials sued
in their official capacities for monetary damages.” A.W., 341 F.3d at 238; see Pennhurst State Sch.
& Hosp., 465 U.S. at 100-103. Here, the OAG is a state agency and is accordingly immune from
5
private suit. Malcomb v. Beaver Cnty. Penn. (Prothonotary), 616 Fed. Appx. 44, 45 (3d Cir. 2015)
(“[T]he Attorney General’s Office [is] immune from suit under the Eleventh Amendment.”);
Wattie-Bey v. Att’y Gen.’s Off., 424 Fed. Appx. 95, 98 (3d Cir. 2011) (dismissing claims against
Attorney General’s Office because “claims against . . . state agencies named as defendants are
precluded under the Eleventh Amendment”). Burke and Platkin, employees of the OAG, are state
officials and are likewise immune from suit for monetary damages. See Jaye v. Att’y Gen. N.J.,
706 Fed. Appx. 781, 784 (3d Cir. 2017) (“[T]he New Jersey Attorney General and Deputy
Attorney General are immune from suit for money damages under the Eleventh Amendment.”);
Sexton v. N.J. Dep’t of Corr., No. 21-20404, 2024 WL 4615763, at *7 (D.N.J. Oct. 30, 2024)
(noting that “courts have consistently held” that the New Jersey OAG and its employees “are
shielded from liability under the Eleventh Amendment”). Because the OAG, as well as Burke and
Platkin in their official capacities, are immune from private monetary damage suits under the
Eleventh Amendment, all claims against them are dismissed. 5
b. UCPO
The Section 1983, NJCRA and civil conspiracy claims against the UCPO and Hummel in
his official capacity are also barred by sovereign immunity. Eleventh Amendment sovereign
immunity applies to claims against non-state parties—such as a county agency—when the state is
the “real party-in-interest.” Chisolm v. McManimon, 275 F.3d 315, 322 (3d Cir. 2001). To
determine whether a state is the “real party-in-interest,” courts look to three factors: “(1) whether
Plaintiff argues that the Eleventh Amendment does not apply here because the OAG was not investigating “criminal
activities” but rather undertaking an “administrative” action, thus acting outside its “normal scope.” ECF No. 98 at
12-14. However, Plaintiff does not provide case law to support this distinction, which cannot be squared with
precedent that the OAG is “indisputably . . . entitled to Eleventh Amendment immunity.” Hockaday v. N.J. Att’y
Gen.’s Off., No. 16-0762, 2016 WL 6694483, at *6 (D.N.J. Nov. 14, 2016); see Sexton, 2024 WL 4615763, at *7
(noting that immunity from suit for the OAG and its employees’ “is not subject to reasonable dispute”).
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6
payment of a judgment resulting from the suit would come from the state treasury, (2) the status
of the entity under state law, and (3) the entity's degree of autonomy.” Id. at 323. These factors are
co-equal and are balanced to determine “whether an entity amounts to an arm of the State.”
Maliandi v. Montclair State Univ., 845 F.3d 77, 84 (3d Cir. 2016). Here, each factor indicates that
the UCPO, and therefore Hummel in his official capacity, was acting as an “arm of the state” when
pursuing the conduct at issue, and Plaintiff’s Section 1983, NJCRA, and civil conspiracy claims
against both parties are accordingly dismissed.
The first factor, whether payment of a judgment will come from the state treasury, favors
immunity. Under New Jersey law, the State of New Jersey is obligated to indemnify county
prosecutor’s offices “for tortious conduct committed during the investigation, arrest, and
prosecution of” a plaintiff absent the presence of actual fraud, malice, or willful misconduct. 6
Wright v. State, 169 N.J. 422, 465 (2001) (citing N.J.S.A. §§ 59:10A, 59:10-2); see Laniado v.
Cnty. of Ocean, No. 18-1513, 2018 WL 6171820, at *4 (D.N.J. Nov. 26, 2018). Acknowledging
this rule, the OAG has agreed here to represent and, if necessary, indemnify the UCPO and
Hummel. ECF No. 85-2, Ex. B at 3-4. Considering this state law obligation and the OAG’s
agreement, the first factor favors immunity. See Hof v. Janci, No. 17-295, 2017 WL 3923296, at
*3 (D.N.J. Sept. 7, 2017) (finding first factor favors immunity given “the State’s obligations” under
Wright and its “agreem[ent] to represent and indemnify” the county defendants).
The second factor, the status of the entity under state law, also favors immunity. “Under
New Jersey law, when county prosecutors and their subordinates perform law enforcement and
prosecutorial functions, ‘they act as agents of the state.’” Hof, 2017 WL 3923296, at *4 (quoting
Notably, the OAG is vested with the authority to determine whether the fraud, malice, or willful misconduct
exception applies. In re Camden Police Cases, No. 11-1315, 2011 WL 3651318, at *5 (D.N.J. Aug. 18, 2011)
(“Although the Attorney General may ‘refuse to provide for the defense of the action’ if the official acted willfully or
maliciously, [state law] expressly authorizes the Attorney General to determine whether that exception applies.”).
6
7
Hyatt v. Cnty. of Passaic, 340 Fed. Appx. 833, 836 (3d Cir. 2009)). Here, Plaintiff’s claims involve
law enforcement and prosecutorial functions exercised by the UCPO and Hummel, including the
investigation of alleged misconduct by the Plaintiff. See, e.g., AC ¶ 34. Because the UCPO and
Hummel were enforcing state law and thus acting as agents of the state when performing the
allegedly unlawful actions, this factor favors immunity. See Pitman v. Ottehberg, No. 10-2538,
2015 WL 179392, at *7 (D.N.J. Jan. 14, 2015) (finding second factor favors immunity where
county prosecutor was “acting in connection with the enforcement of state laws” and thus both
prosecutor and his office were acting as “agents of the State at the time of the alleged wrongful
conduct”). 7
Finally, the third factor, the entity’s degree of autonomy, further favors immunity. Under
New Jersey law, the Attorney General “is authorized to intervene and take over any investigation
or prosecution initiated by county prosecutors.” Pitman, 2015 WL 179392, at *7 (citing N.J. Stat.
Ann. § 52:17B-106). Considering this extensive oversight authority by an arm of the state, the
UCPO cannot be viewed as an autonomous entity when, as here, it is “performing its prosecutorial
function, such as investigating.” Id.; see Laniado, 2018 WL 6171820, at *5 (“The . . . County
Prosecutor’s Office, when acting in a prosecutorial capacity, is not an autonomous entity.”
(internal quotation omitted)). This factor thus favors immunity. 8
In sum, all three factors favor a finding that the state is the “real party-in-interest” and that
the relevant claims are barred by sovereign immunity. Indeed, other courts in this district have
Plaintiff argues that UCPA’s investigation was “administrative, not criminal” and thus did not involve “prosecutorial
functions.” ECF No. 98 at 14-16. However, “administrative tasks” for the purposes of the “party-in-interest” analysis
relate to “personnel decisions,” not investigations and other functions that “require legal knowledge and discretion.”
Hyatt, 340 Fed. Appx. at 836-37 (internal quotations omitted).
8
Echoing his previous argument, Plaintiff asserts that because the UCPA was undertaking an “administrative
investigation,” rather than probing criminal wrongdoing, it is “autonomous from the dealings of the State.” ECF No.
98 at 16-17. However, even assuming that Defendants’ investigation was somehow “administrative” in nature,
Plaintiff does not provide statutory language or case law to support a corresponding lack of autonomy as a result.
7
8
similarly concluded that county prosecutor’s offices are entitled to sovereign immunity when
pursuing investigations or prosecutions. See, e.g., Est. of Bardzell v. Gomperts, 515 F. Supp. 3d
256, 267 (D.N.J. 2021) (“Courts in this district have routinely held that county prosecutors, when
pursuing their core functions, are entitled to Eleventh Amendment immunity.”). The relevant
claims are accordingly dismissed.
B. Section 1983 and NJCRA
a. Hummel
Plaintiff’s Section 1983 and NJCRA claims against Hummel in his personal capacity fail
because Hummel is entitled to qualified immunity. “[Q]ualified immunity protects government
officials ‘from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.’”
Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). Thus, qualified immunity will shield a government official from suit unless
a plaintiff alleges facts showing (1) a violation of a right that is (2) clearly established at the time
of the violation. See id. This standard applies to both Section 1983 and NJCRA claims. See Olexsak
v. Jones, No. 21-20026, 2022 WL 2980985, at *6 (D.N.J. July 28, 2022) (citing Brown v. State,
230 N.J. 84, 98 (2017)). Here, Plaintiff does not plead sufficient facts to overcome qualified
immunity and his claims are accordingly dismissed.
First, Plaintiff fails to plead a due process violation under the Fourteenth Amendment
because he does not possess a protected property interest in his pension benefits. To state a due
process claim, a plaintiff must allege that he was “deprived of an individual interest that is
encompassed within the Fourteenth Amendment’s protection of ‘life, liberty, or property.’” Pence
v. Mayor of Bernard Twp., No. 8-2312, 2010 WL 2925901, at *3 (D.N.J. July 21, 2010) (quoting
9
Hill v. Borough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006)). Whether a property interest is so
protected “is a question answered by state law.” Hill, 455 F.3d at 234. Under New Jersey law,
pension benefits are “expressly conditioned upon the rendering of honorable service.” N.J.S.A.
43:1-3; see Vas v. Bd. of Trs., Pub. Emps.’ Ret. Sys. of N.J., No. 2848-21, 2023 WL 4198994, at
*3 (N.J. Super. Ct. App. Div. June 26, 2023). As Plaintiff himself states, he did not “retir[e] in
good standing” due to the Internal Affairs investigation into his conduct, and he was therefore
“ineligible to receive his pension benefits.” AC ¶ 53. Accordingly, these benefits do not constitute
a protected property interested under state law of which Plaintiff has been deprived and cannot
therefore serve as the basis for a due process claim. See State v. Anderson, 248 N.J. 53, 75 (2021)
(noting that the “pre-condition of honorable service” renders state pension a “conditional quasicontractual right” rather than “‘property’ of the employee”); Vas, 2023 WL 4198994, at *2.
Second, Plaintiff fails to plead an alleged First Amendment violation that is “clearly
established.” Plaintiff alleges that Hummel violated his First Amendment right by “commencing
and then refusing to close an Internal Affairs investigation into Plaintiff based on” his alleged
protected speech. AC ¶ 93. However, an allegedly retaliatory investigation is not a “clearly
established” First Amendment violation for purposes of overcoming qualified immunity. See
Sivella v. Twp. of Lyndhurst, No. 20-2342, 2021 WL 3356934, at *3 (3d Cir. 2021) (noting that
there “remains a circuit split on the relevant issue”); Holt v. Pennsylvania, 683 Fed. Appx. 151,
160 (3d Cir. 2017) (holding that official is entitled to qualified immunity on a First Amendment
retaliatory investigation claim because of “[t]he disagreement among our sister courts” regarding
the viability of such a claim). Thus, the alleged retaliatory investigation cannot serve as a basis for
a First Amendment claim.
10
Third, Plaintiff fails to plead a substantive due process claim under the NJCRA because he
does not allege actions taken by Hummel that are sufficiently egregious to satisfy the applicable
standard. “[A]s the Supreme Court of New Jersey has described, ‘substantive due process is
reserved for the most egregious governmental abuses against liberty or property rights, abuses that
shock the conscience or otherwise offend . . . judicial notions of fairness.’” Rapeika v. Borough of
Fort Lee, No. 19-6612, 2020 WL 6391202, at *7 n.11 (D.N.J. Oct. 30, 2020) (quoting Rivkin v.
Dover Twp. Rent Leveling Bd., 143 N.J. 352, 366 (1996)). Here, Plaintiff alleges that Hummel—
an employee of the UCPO—did not abide by a settlement agreement entered into by the Plaintiff
and the Clark Police Department, AC ¶ 40, and “refused to close” an Internal Affairs investigation
into the Plaintiff, ¶¶ 53, 57-58. However, Plaintiff does not point the Court to any case in which
this type of behavior—an alleged refusal to abide by a settlement agreement entered into by
another entity and an alleged refusal to close an ongoing Internal Affairs investigation—has been
deemed to “shock the conscience” or offend judicial notions of fairness. Cf. Beauvil v. City of
Asbury Park, No. 18-991, 2018 WL 2455928, at *3 (D.N.J. June 1, 2018) (holding NCJRA
substantive due process properly plead where plaintiff “alleged that Defendants effected a
deprivation of property due to some combination of racial animus, hostility towards Plaintiffs’
national origin, and/or personal bias”); see also Rivkin, 143 N.J. at 366 (noting that violations of
substantive due process often involve “intrusions on an individual’s privacy and bodily integrity”).
Thus, the alleged conduct fails to establish a substantive due process claim under the NJCRA.
Finally, Plaintiff fails to plead an equal protection claim under the NJCRA because he does
not allege the necessary requirements. To plead an equal protection claim, plaintiffs “must show
that they are members of a protected class, that they are otherwise similarly situated to members
of the unprotected class, and that plaintiffs were treated differently from members of the
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unprotected class.” Major Tours, Inc. v. Colorel, 799 F. Supp. 2d 376, 391-92 (D.N.J. 2011). Here,
Plaintiff neither alleges that he is a member of a protected class, nor points to a member of an
unprotected class that is similarly situated but treated differently. Moreover, Plaintiff’s opposition
brief does not address this pleading failure. ECF No. 96 at 15-16. Plaintiff’s equal protection claim
against Hummel is accordingly dismissed.
b. Burke and Platkin
The Section 1983 and NCJRA claims against Burke and Platkin in their personal capacities
fail because Plaintiff has not plead with adequate specificity any personal involvement of either
defendant with the alleged violation of his civil rights. To be liable under Section 1983, a defendant
“must have personal involvement in the alleged wrongs” as shown by “[a]llegations of
participation or actual knowledge and acquiescence . . . made with appropriate particularity.” Rode
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); Chavarriaga v. N.J. Dept. of Corr., 806 F.3d
210, 222 (3d Cir.) (noting that to establish a Section 1983 claim, “[a] plaintiff must portray specific
conduct by state officials which violates some constitutional right” (internal quotation omitted)).
The NJCRA is construed identically. See Glaesener v. City of Jersey City, No. 19-18089, 2021
WL 4206297, at *3 (D.N.J. Sept. 15, 2021). Here, Plaintiff does not allege specific actions
performed by Platkin, but only refers to the actions of the office he leads, the OAG. See AC ¶¶ 6088. As to Burke, Plaintiff alleges that he was “leading the Internal Affairs investigation,” id. ¶¶ 67,
81, and that he “refused to provide any . . . assurances” that statements made by Plaintiff during
his witness interview would not be used against him in that investigation, id. ¶¶ 69-70. These
allegations regarding both defendants are insufficient because they do not identify acts performed
by the defendants that violated Plaintiff’s civil rights, and instead seek to impute liability based on
defendants’ job positions. See Hodges v. Mankey, 651 Fed. Appx. 81, 83 (3d Cir. 2016)
12
(“Defendants in civil rights actions must have personal involvement in the alleged wrongs; any
liability cannot be based only on respondeat superior.” (internal quotation omitted)); Grohs v.
Yatauro, 984 F. Supp. 2d 273, 282 (D.N.J. 2013) (“The liability of a defendant in a Section 1983
civil rights action cannot be predicated solely on respondeat superior, there must be personal
involvement.”). Accordingly, the Section 1983 and NJCRA claims against Burke and Platkin fail. 9
Further, in light of Plaintiff’s failure to plead any personal involvement by defendants in
the alleged violations of his civil rights, Burke and Platkin are entitled to qualified immunity for
the above claims. See Argueta v. U.S. Immigr. and Customs Enf’t, No. 8-1652, 2009 WL 1307236,
at *22 (D.N.J. May 7, 2009) (“In order to overcome qualified immunity, a plaintiff must allege
facts to show that an individual defendant had personal involvement in the alleged wrongdoing.”);
Reed v. Straniero, No. 6-3496, 2010 WL 2035887, at *5 (D.N.J. May 24, 2010) (finding qualified
immunity applies “where Defendants have had no personal involvement” in the alleged
constitutional violation).
C. CEPA
The CEPA claim against all Defendants fails because Plaintiff does not plead the necessary
elements, including the existence of an “adverse employment action” and an employer-employee
relationship between himself and Defendants. To state a claim under CEPA, a plaintiff must plead
“(1) that the plaintiff reasonably believed that employer's conduct violated a law or regulation; (2)
that the plaintiff performed ‘whistle-blowing activity’ as defined in CEPA; (3) that an adverse
employment action has been taken against him or her; and (4) that the whistle-blowing activity
In his opposition, Plaintiff states that “[t]hrough acquiescence, ignorance, and/or negligence, both parties have
person[al] involvement in this matter.” ECF No. 98 at 19. Plaintiff does not, however, point to allegations in the
complaint to establish this alleged personal involvement. Moreover, any allegations found in Plaintiff’s brief, but not
the amended complaint, will not be considered on a motion to dismiss. See Dickerson v. N.J. Inst. of Tech., No. 198344, 2019 WL 6032378, at *6 n.4 (D.N.J. Nov. 14, 2019) (“It is axiomatic that the complaint may not be amended
by the briefs in opposition to a motion to dismiss.”) (quoting Com. of Pa. ex rel. Zimmerman v. PepsiCo Inc., 836
F.2d 173, 181 (3d Cir. 1988)).
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caused such adverse employment action.” Ivan v. Cnty. of Middlesex, 595 F. Supp. 2d 425, 466
(D.N.J. 2009). Additionally, a plaintiff must establish “a legitimate employee-employer
relationship between the parties.” Kounelis v. Sherrer, 396 F. Supp. 2d 525, 532 (D.N.J. 2005).
Initially, Plaintiff fails to plead that an adverse employment action was taken against him.
Plaintiff alleges that Defendants have undertaken an adverse employment action by initiating an
Internal Affairs investigation into his actions. AC ¶ 100. However, an investigation into employee
behavior does not qualify as an adverse employment action under CEPA. See Ust v. Borough of
Englewood Cliffs, No. 17-13051, 2018 WL 4145905, at *4 (D.N.J. Aug. 30, 2018) (“Nor is filing
an internal affairs complaint against him an adverse employment action. CEPA prohibits
retaliatory action, and an investigation of an employee is not normally considered retaliation.”)
(internal citation and quotation omitted); see also Borawski v. Henderson, 265 F. Supp. 2d 475,
486 (D.N.J. 2003) (“Retaliatory action under CEPA is confined to completed . . . personnel actions
that have an effect on either compensation or job rank” (internal quotation omitted)). Because
Plaintiff does not establish this necessary element, the CEPA claim fails.
Additionally, Plaintiff fails to plead the existence of an employee-employer relationship
between himself and the Defendants. According to his amended complaint, Plaintiff was an
employee of the Clark Police Department during the relevant period. AC ¶ 1. Defendants are not
supervisors at the Clark Police Department, but rather employees of the OAG or the UCPO, or
those entities themselves. See id. ¶¶ 2-6. Although Plaintiff asserts that Defendants “became
Plaintiff’s employer” when they exercised supersession authority over the Clark Police
Department and assumed control of the internal affairs investigation, id. ¶¶ 97-98 this conclusory
assertion is not supported by the pleadings and is thus insufficient to establish the necessary
relationship. See Iliano v. Wayne Bd. of Ed., No. 22-114, 2022 WL 4596729, at *3 (D.N.J. Sept.
14
30, 2022) (finding no employee-employer relationship for purposes of CEPA claim where “[t]he
Complaint does not set forth facts establishing that the [defendant] carried out its actions on behalf
of or in the interest of Plaintiff’s employer”).
D. Civil Conspiracy
The civil conspiracy claim against all Defendants fails because Plaintiff has not complied
with the New Jersey Tort Claims Act. Under that act, “an individual may not sue a public entity
or public employee unless he provides the entity or employee with a pre-suit notice of the claim.”
Martin v. Unknown U.S. Marshals, 965 F. Supp. 2d 502, 549 (D.N.J. 2013) (citing N.J.S.A. 59:83). Plaintiff has not plead compliance with the pre-suit notice requirement and does not appear to
contest as much in his opposition brief. 10 ECF No. 98 at 25-26. Because failure to comply with
this requirement is “an absolute bar to recovery,” the civil conspiracy claim is dismissed. Martin,
965 F. Supp. 2d at 549 (citing N.J.S.A. 59:8-8); Hashem v. Hunterdon Cnty., No. 15-8585, 2016
WL 5539590, at *11 (D.N.J. Sept. 29, 2016).
The civil conspiracy claim fails for the additional reason that Plaintiff has not pled the
existence of an underlying tort to support the claim. Under New Jersey law, civil conspiracy “is
not an independent action but rather a means for establishing vicarious liability for the underlying
tort.” In re: Johnson & Johnson Talcum Powder Prods. Mktg., Sales Pracs., and Prods. Liab.
Litig., 553 F. Supp. 3d 211, 232 (D.N.J. 2021) (internal quotation omitted). Because Plaintiff has
not adequately pled the existence of a tortious action committed by Defendants, the civil
conspiracy claim cannot stand on its own. See 7-Eleven, Inc. v. Maia Investment Co., No. 14-8006,
2015 WL 1802512, at *6 (D.N.J. Apr. 17, 2015) (“Without an underlying wrong, [the plaintiff]
Plaintiff does not appear to contend that he complied with the Tort Claims Act, but instead argues that this failure
should only result in dismissal of his claims against the public entities and not the individual defendants. ECF No. 98
at 25. However, the statute broadly bars claims made without notice against a “public entity or public employee.”
Martin, 965 F. Supp. 2d at 549 (emphasis added).
10
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cannot state a claim for conspiracy.”); In re: Johnson & Johnson, 553 F. Supp. 3d at 232-33
(“Because Plaintiffs have failed to show that [the defendant] committed an underlying tortious act,
Plaintiffs cannot proceed with a civil conspiracy claim.”).
IV.
CONCLUSION
For the reasons stated above, Defendants’ motions to dismiss are granted.
Accordingly, IT IS on this 28th day of January, 2025,
ORDERED that Defendants’ motions to dismiss (ECF Nos. 85, 87) Plaintiff’s amended
complaint (ECF No. 27) are GRANTED; and it is further
ORDERED that Plaintiff’s amended complaint is DISMISSED without prejudice; and it
is further
ORDERED that to the extent Plaintiff is able to cure the pleading deficiencies identified
in the Court’s Order, he shall have thirty (30) days from the date of this Order to file a second
amended complaint. Insofar as Plaintiff submits a second amended complaint, he shall also provide
a form of the amended complaint that indicates in what respect it differs from the original amended
complaint, bracketing or striking through materials to be deleted and underlining materials to be
added. See L. Civ. R. 15(a)(2).
SO ORDERED.
/s/ Claire C. Cecchi
CLAIRE C. CECCHI, U.S.D.J.
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