WILSON v. HILLSBOROUGH TOWNSHIP CONSTRUCTION DEPARTMENT
Filing
133
OPINION filed. Signed by Judge Freda L. Wolfson on 12/4/2018. (mmh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
:
Plaintiff,
: Civil Action No.: 17-995 (FLW)
v.
:
: OPINION
HILLSBOROUGH TOWNSHIP
:
(CONSTRUCTION/BUILDING DEPARTMENT :
AND TAX ASSESSOR),
:
:
Defendants.
:
:
GWENDOLYN WILSON,
WOLFSON, United States District Judge:
This matter comes before the Court on Defendants Township of Hillsborough
(“Hillsborough Township”), Hillsborough Township Construction/Building Department, and
Hillsborough Township Tax Assessor’s (cumulatively, “Defendants”) motion to dismiss pro se
Plaintiff Gwendolyn Wilson’s (“Plaintiff”) First Amended Complaint, wherein Plaintiff seeks to
hold Defendants vicariously liable for alleged discriminatory conduct in violation of 42 U.S.C. §
1983, on the part of certain unnamed municipal employees. For the reasons set forth below, the
motion to dismiss is GRANTED. However, Plaintiff is given leave to amend her First Amended
Complaint, consistent with the dictates of this Opinion, within thirty (30) days from the date of
the Order accompanying this decision.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff purchased a residence in Hillsborough Township, Somerset County, in January
of 1996. Hillsborough Township is described as a municipal corporation duly incorporated in
New Jersey, wherein its principal place of business is located. Amended Complaint (“Am.
Compl.”), Defendant/Hillsborough Township Construction/Building Department, ¶ 15.
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Defendants Hillsborough Township Construction/Building Department and Hillsborough
Township Tax Assessor are alleged to operate and serve as agents for Hillsborough Township.
The former administers the New Jersey Uniform Construction Codes, while the latter is
responsible for assessing the value of all property located within Hillsborough Township. Id.,
Hillsborough Township Tax Assessor, ¶ 16.
Plaintiff alleges that, beginning in 1996, Defendants have subjected Plaintiff to a “racially
hostile environment” for a period of over two decades, through the “unconstitutional usage of
construction/building permits[.]” Id., Preliminary Statement, ¶ 1, Statement of Facts, ¶ 1.
Specifically, shortly after purchasing her residence, Plaintiff alleges that she hired H&J Home
Inspection Inc. to evaluate its condition, and, in turn, retained a private contractor to complete
“major” structural renovations. Id., History of Plaintiff’s Home, ¶¶ 2A, 3. The structural
renovations pertained to the roof as well as other aspects of Plaintiff’s residence, for which
Defendants issued various construction permits. Id., ¶ 3. Following their completion, Plaintiff
alleges that Defendants were required to inspect her residence in order to “approve” or “reject”
the renovations and “close out” the outstanding permits, as mandated by the New Jersey
Administrative Code. Id., ¶¶ 3-4. However, Defendants allegedly failed to comply with this
obligation; instead, three years later, Defendants issued a “Certificate of Approval” for the
alleged purpose of “increas[ing] Plaintiff’s property tax assessment.” Id., ¶ 4.
Despite issuing a Certificate of Approval, Plaintiff asserts that her contractor’s
renovations were actually improperly completed, and therefore, defective. Id. Moreover, as a
result of these deficiencies, Plaintiff contacted Defendants in order for them to “reject the
substandard work,” for the purpose of requiring her contractor to correct or re-perform the
renovations to her residence. Id. However, “despite [Plaintiff’s] numerous attempts” to achieve
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this end, she alleges that Defendants refused to inspect her residence and to render a final
decision which “either accept[ed] or reject[ed] the” completed renovations. Id. Rather,
Defendants allowed the construction permits to remain open, “year after year.” Id.
Ultimately, in 2006, the “problems” with Plaintiff’s roof became too severe, and she was
required to contract with Home Depot for the purpose of replacing the one which her contractor
originally installed. Id., ¶ 5. Home Depot completed the work in approximately eight days;
however, upon a final inspection, on July 17, 2006, Defendants concluded that the new
renovations failed to comply with applicable construction codes. Despite that determination,
Plaintiff asserts that she was never informed of the results of the final inspection until
approximately nine years later, on January 14, 2015. Id., ¶ 6. As a consequence of Defendants’
failure to provide earlier notice, Plaintiff alleges that she was “deprived [of] the legal right to
force [Home Depot] to repair or to replace the failed roof.” Id.
On January 14, 2017, Plaintiff filed the instant action against Defendants. Although the
Honorable Peter G. Sheridan, U.S.D.J., originally presided over this case, before whom various
proceedings occurred, ultimately, he recused himself and I was subsequently assigned the matter.
On November 7, 2017, an Order was entered by Judge Sheridan dismissing Plaintiff’s claims
which arose before 2015 as time barred by the applicable statute of limitations, and Plaintiff was
granted leave to amend her Complaint. On February 20, 2018, Plaintiff filed her First Amended
Complaint, subsequent to which Plaintiff also filed a significant number of frivolous motions.
However, for the reasons explained infra, they either need not be addressed or discussed in
substance. 1
1
Specifically, in a single, eight-page brief, Plaintiff moves for the following relief: motion
for discovery in the recusal of Judge Peter G. Sheridan; motion to vacate the orders, opinions,
and rulings issued by Judge Sheridan and Judge Arpert; motion to disqualify Defendants’
counsel; motion opposing reassignment of this matter to Judge Wolfson; motion to transfer case
3
In the First Amended Complaint, Plaintiff asserts four counts against Defendants, arising
from their alleged discriminatory conduct towards, and targeting of, Plaintiff on the basis of her
race. In Count I, Plaintiff alleges that Defendants acted in violation of the Fourteenth
Amendment and conspired against Plaintiff, without providing further details. Id., First Cause of
Action. In Count II, Plaintiff alleges violations of the Civil Rights Act of 1866 and asserts that
Defendants engaged in retaliatory conduct, through the “illegal use of the Building Permit and
Tax Assessment Process[.]” Id., Second Cause of Action. In Count III, Plaintiff alleges violations
of the Fair Housing Act, based on Defendants’ alleged deprivation “of the safeguards and
protection of [Plaintiff’s] building permits,” including: (a) “refusing to inspect”; (b) “approving
inspections without adhering to the required standards of law”; and (c) “issuing approvals
without inspections[.]” Id., Third Cause of Action. Finally, in Count IV, Plaintiff alleges
violations of the Fourth Amendment, as a result of Hillsborough Township’s illegal inspection of
Plaintiff’s home. Id., Fourth Cause of Action.
Currently, Defendants move to dismiss Plaintiff’s First Amended Complaint, arguing,
inter alia, that Plaintiff cannot maintain a cause of action against Hillsborough Township for the
alleged conduct of its unnamed employees through a theory of respondent superior, pursuant to
the Supreme Court’s decision in Monell v. Department of Social Services of the City of New.
Defendants additionally contend that the claims asserted against both Hillsborough Township
Construction/Building Department and Hillsborough Township Tax Assessor cannot stand,
to Washington D.C.; motion to appoint pro bono counsel; and motion for default judgment.
Plaintiff additionally filed a separate motion for summary judgment. However, every motion,
with the exception of the one for pro bono counsel, default judgment, and summary judgment,
are based upon an alleged “conflict” which is vastly insufficient to justify the various forms of
relief which Plaintiff requests, and, as such, they are all denied on this basis. Moreover,
Plaintiff’s additional motions for pro bono counsel, summary judgment, and default judgment
are all moot, given that the Court will dismiss the First Amended Complaint for the reasons
provided infra.
4
because these are not separate legal entities against which Plaintiff can file suit. Plaintiff opposes
the motion. 2
II.
DISCUSSION
A.
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a claim “for
failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When
reviewing a motion to dismiss, courts must first separate the factual and legal elements of the
claims, and accept all of the well-pleaded facts as true. See Fowler v. UPMC Shadyside, 578
F.3d 203, 210-11 (3d Cir. 2009). All reasonable inferences must be made in the plaintiff’s favor.
See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). In order to survive a
motion to dismiss, the plaintiff must provide “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This standard
requires the plaintiff to show “more than a sheer possibility that a defendant has acted
unlawfully,” but does not create as high of a standard as to be a “probability requirement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The Third Circuit requires a three-step analysis to meet the plausibility standard
mandated by Twombly and Iqbal. First, the court should “outline the elements a plaintiff must
plead to a state a claim for relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). Next, the
court should “peel away” legal conclusions that are not entitled to the assumption of truth. Id.;
see also Iqbal, 556 U.S. at 678-79 (“While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.”). It is well-established that a proper
complaint “requires more than labels and conclusions, and a formulaic recitation of the elements
2
The Court notes that the majority of Plaintiff’s opposition brief is copied-and-pasted from
her First Amended Complaint.
5
of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotations and citations
omitted). Finally, the court should assume the veracity of all well-pled factual allegations, and
then “determine whether they plausibly give rise to an entitlement to relief.” Bistrian, 696 F.3d at
365 (quoting Iqbal, 556 U.S. at 679). A claim is facially plausible when there is sufficient factual
content to draw a “reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. The third step of the analysis is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. at 679.
B.
Monell Liability
At the outset, I note that Counts I, II, and IV of the First Amended Complaint are based
on Defendants’ alleged violations of § 1983, arising from the unlawful actions of Defendants’
unnamed employees. Specifically, Plaintiff asserts that Defendants impermissibly and
intentionally discriminated against Plaintiff on the basis of race, through “the illegal usage of the
Building Permit and Tax Assessment Process” and an “illegal search” of Plaintiff’s home,
conducted by Hillsborough Township’s unidentified plumbing and electrical “sub-code
inspector[s].” Am. Comp., Second Cause of Action, Fourth Case of Action. Although Plaintiff’s
factual allegations in support of the alleged constitutional violations are either lacking or not
clearly set forth in the First Amended Complaint, all of Plaintiff’s legal claims, nonetheless, are
asserted against a municipal entity, Hillsborough Township, and its departments, i.e.,
Hillsborough Township Construction/Building Department and Hillsborough Township Tax
Assessor. Thus, in order for Plaintiff’s claims to survive, she must adequately assert facts which
support a violation of her rights under Monell.
Section 1983 imposes civil liability upon “any person who, acting under the color of state
law, deprives another individual of any rights, privileges, or immunities secured by the
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Constitution or laws of the United States.” Padilla v. Twp. of Cherry Hill, 110 Fed. Appx. 272,
278 (3d Cir. 2004) (citation omitted). In that connection, “[a] municipality or its officials may
not be held liable under § 1983 for constitutional violations based upon respondeat superior for
the negligent or otherwise improper actions of its employees.” Hansell v. City of Atlantic City,
152 F. Supp. 2d 589, 609 (D.N.J. 2001) (citing Monell, 436 U.S. at 694)). Instead, to recover
against a municipality for § 1983 violations, a plaintiff must “demonstrate that municipal
policymakers, acting with deliberate indifference or reckless indifference, established or
maintained a policy or well-settled custom which caused a municipal employee to violate
plaintiffs’ constitutional rights and that such policy or custom was the ‘moving force’ behind the
constitutional tort.” Id. (quoting Bd. of the County Comm’rs. of Bryan County, Oklahoma v.
Brown, 520 U.S. 397, 404 (1997)). However, in the absence of such circumstances, a plaintiff
may also demonstrate liability if an employee acts unconstitutionally and the municipality fails
to adequately train or supervise that employee. City of Canton v. Harris, 489 U.S. 378, 380
(1989). The failure to satisfy any of these conditions precludes a plaintiff from recovering
against a municipality for § 1983 violations.
As a preliminary matter, Plaintiff has named three municipal defendants in the First
Amended Complaint, including Hillsborough Township, and two divisions which are alleged to
operate within Hillsborough Township, i.e., Hillsborough Township Construction/Building
Department and Hillsborough Township Tax Assessor. Nonetheless, because these three entities
are, in fact, one in the same, the Court construes Plaintiff’s claims solely against Hillsborough
Township. Stated differently, Hillsborough Township, the Construction/Building Department,
and the Tax Assessor will be treated as a single entity for the purposes of determining § 1983
liability. See, e.g., Mikhaeil v. Santos, No. 10-3876, 2012 U.S. Dist. LEXIS 177144, at *10
7
(D.N.J. Dec. 12, 2014) (construing a claim against the municipality’s police department as a
claim against the municipality, itself).
In this regard, Plaintiff has failed to allege any facts in support of a Monell claim.
Although Plaintiff alleges that she was discriminated against on the basis of race, she neither
alleges that Hillsborough Township established or maintained a policy or well-settled custom
which contributed to the complained-of constitutional violation, nor that Hillsborough Township
failed to adequately train or supervise an employee who acted unconstitutionally. Rather, the
discriminatory conduct of which she disputes are alleged to be directed solely against
Hillsborough Township, and, as such, are insufficient to sustain a valid Monell claim. See e.g.,
Williams v. United States, No. 18-14455, 2018 U.S. Dist. LEXIS 174820, at *10 (D.N.J. Oct. 11,
2018) (“Plaintiff does not make sufficient factual allegations indicating a discriminatory official
policy or established custom by any municipality. Plaintiff only vaguely alleges that she has
‘experience[d] a series of discrimination instances’ . . . Plaintiff would need to a plead
significantly more facts as to Monell liability.”) (citation omitted); Silverman v. Physician Health
Service--SCI-Waymart, No. 08-01841, 2009 U.S. Dist. LEXIS 39592, at *3 (M.D. Pa. May 11,
2009) (holding that the plaintiff failed to assert a cognizable claim against a municipality under
Monell because the plaintiff’s allegations “merely identif[ied] what appears to be an isolated
incident”).
Moreover, in addition to these pleading deficiencies, Plaintiff does not name any
individual officials in the First Amended Complaint who allegedly violated her constitutional
rights. Accordingly, Counts I, II, and IV of Plaintiff’s First Amended Complaint are dismissed.
Nonetheless, to the extent that Plaintiff can allege facts against Hillsborough Township only in
support of a Monell claim, the Court grants Plaintiff leave to file a Second Amended Complaint.
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C.
Fair Housing Act
Plaintiff also asserts a separate violation of the Fair Housing Act (the “Act”) against
Hillsborough Township, on the basis that it failed to comply with “required standards of law[.]”
Am. Compl., Third Cause of Action. In this regard, Plaintiff references various provisions of the
New Jersey Administrative Code, obligating Hillsborough Township to perform various
inspections prior to the approval of a residential construction permit. However, notwithstanding
these procedural requirements, Plaintiff maintains that she was “deprived . . . of the safeguards
and protections of her building permits” and discriminated against, because Hillsborough
Township failed to comply with the Code, through its refusal “to inspect, approving inspections
without adhering to required standards of law, and issuing approvals without inspections[.]” Id.
As a preliminary issue, the Court previously entered an Order dismissing all of Plaintiff’s
claims arising before 2015 as time-barred by the statute of limitations. Nevertheless, in the First
Amended Complaint, Plaintiff alleges violations of the Act which stem from Hillsborough
Township’s “refusal to either pass or fail” construction permits in 1996, 1999, 2003, and 2006,
and, as such, those allegations are time-barred by the statute’s applicable two-year limitations
period. Lloyd v. Presby’s Inspired Life, 251 F. Supp. 3d 891, 903 (E.D. Pa. 2017) (“The Fair
Housing Act’s statute of limitations provision states that an action must be filed in the
appropriate federal or state court ‘not later than 2 years after the occurrence or the termination of
an alleged discriminatory housing practice.’”) (quoting 42 U.S.C. § 3613(a)(1)(A)). However,
without citing any applicable law or authority, Plaintiff contends the statute of limitations has not
run on her claims, as the construction permits remain “open.” I need not reach this issue; indeed,
even if Plaintiff’s claims are timely, she has failed to allege facts which support a violation of
the Act.
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Specifically, § 3604(b) of the Act, titled “[d]iscrimination in the sale or rental of housing
and other prohibited practices[,]” forbids “discriminat[ion] against any person in the terms,
conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities
in connection therewith, because of race, color, religion, sex, familial status, or national origin.”
42 U.S.C. § 3604(b).
Here, although the Act prohibits “discriminatory housing practices” by municipal entities,
Plaintiff fails to assert a cognizable claim under that statute. United States v. Audubon, 797 F.
Supp. 353, 357 (D.N.J. 1991). Plaintiff does not allege how Hillsborough Township’s conduct,
through its alleged failure to comply with certain regulatory procedures as set forth under the
New Jersey Administrative Code, either discriminated against Plaintiff in the “sale or rental of
[her] dwelling” or, alternatively, “in the provision of services or facilities in connection” with the
“sale or rental of [her] dwelling.” 3 42 U.S.C. § 3604(b). In fact, Plaintiff, an existing homeowner
who has resided in Hillsborough township for over 22 years, does not even allege how
Hillsborough Township’s conduct, including approving permits without conducting inspections,
interferes with the ownership of her residence. Accordingly, in the absence of such allegations,
the Court concludes that Plaintiff’s claims pursuant to the Act fail to state a claim. Joseph v.
Safehaven CEC, No. 14-3940, 2016 U.S. Dist. LEXIS 20839, at *16 n.6 (E.D. Pa. Feb. 22, 2016)
3
Numerous federal courts, including the Seventh Circuit, have concluded that the scope of
§ 3604(b) does not extend beyond the acquisition of housing, on the basis that the language “in
connection therewith,” as contained in § 3604(b), refers to the “sale or rental of a dwelling,” as
opposed to a “dwelling” in general. See, e.g., Southend Neighborhood Improvement Ass’n v.
County of St. Clair, 743 F.2d 1207, 1210 (7th Cir. 1984); Comm. Concerning Cmty.
Improvement v. City of Modesto, No. 04-6121, 2004 U.S. Dist. LEXIS 31022, at *34-35 (E.D.
Ca. 2004); Halprin v. Prairie Single Family Homes, 208 F.Supp.2d 896, 901 (N.D. Ill. 2002);
Laramore v. Illinois Sports Facilities Authority, 722 F. Supp. 443, 452 (N.D. Ill 1989). Although
this Court agrees with that limited interpretation based upon a plain reading of the statute,
Plaintiff would, nevertheless, still fail to state a claim even under a broader construction of §
3604(b). Indeed, Plaintiff has not cited, nor has this Court found, any law or authority which
extends § 3604(b)’s reach to a municipality’s alleged failure to conduct an inspection prior to the
approval of a residential construction permit.
10
(“Plaintiff does not allege discrimination in connection with the sale or rental of housing,
accordingly, he has not set forth a plausible claim under the Fair Housing Act.”). 4
III.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss Plaintiff’s First Amended
Complaint is GRANTED. Plaintiff’s Fair Housing Act claim, as well as her claims against
Hillsborough Township Construction/Building Department and Hillsborough Township Tax
Assessor
are
dismissed
with
prejudice.
Accordingly,
Hillsborough
Township
Construction/Building Department and Hillsborough Township Tax Assessor are dismissed as
parties to this action. Plaintiff is given leave to amend only her Monell claim against
Hillsborough Township, within thirty (30) days from the date of the Order accompanying this
Opinion. To the extent that Plaintiff seeks to add additional defendants, she must do so via a
motion to amend before the Magistrate Judge.
Dated: December 4, 2018
/s/ Freda L. Wolfson
Freda L. Wolfson
United States District Judge
4
Plaintiff also alleges a retaliation claim under the Act. Specifically, claims of retaliation
are governed by § 3617, providing: “[i]t shall be unlawful to coerce, intimidate, threaten, or
interfere with any person in the exercise or enjoyment of, or on account of his having exercised
or enjoyed, or on account of his having aided or encouraged any other person in the exercise or
enjoyment of, any right granted or protected by . . . 42 U.S.C. § 3603, 3604, 3605, or 3606[.]” 42
U.S.C. § 3617. Here, notwithstanding the fact that the First Amended Complaint fails to provide
a reason for Hillsborough Township’s alleged retaliation, Plaintiff has not alleged facts to
support a violation of the Act. Therefore, Plaintiff’s retaliation claim is also dismissed.
Schildknecht v. Twp. of Montclair & Comm’r of Dep’t of Cmty. Affairs, No. 13-7228, 2014 U.S.
Dist. LEXIS 27066, at *9 (D.N.J. March 4, 2014) (“Because Plaintiffs have failed to describe a
violation of any right protected by Sections 3603, 3604, 3605, or 3606 . . . , they have failed to
plead a [claim of retaliation under] the Fair Housing Act.”).
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