FERNANDEZ et al v. CITY OF JERSEY CITY et al, No. 2:2016cv07789 - Document 10 (D.N.J. 2017)

Court Description: OPINION. Signed by Judge Kevin McNulty on 6/27/2017. (JB, )
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CARLOS FERNANDES and JEAN NEIMILLER, 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 Dockets.Justia.com Civ. No. 2:16-cv--07789-KM-JBC 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