SPECIAL POLICE ORGANIZATION OF NEW JERSEY v. CITY OF NEWARK

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHAMBERS OF MARTIN LUTHER KING COURTHOUSE

SUSAN D. WIGENTON 50 WALNUT ST.

UNITED STATES DISTRICT JUDGE NEWARK, NJ 07101

973-645-5903

September 13, 2019

Eldridge Hawkins, Esq.

60 Evergreen Place

Suite 510

East Orange, NJ 07018

Counsel for Plaintiffs

Franklin Barbosa, Jr.

Schenck, Price, Smith & King, LLP

220 Park Avenue

P.O. Box 991

Florham Park, NJ 07932

Counsel for Defendant Anthony Ambrose

Yvette Gibbons, Esq.

Law Offices of Yvette Gibbons, LLC

4 South Orange Avenue

No. 139

South Orange, NJ 07079

Counsel for Defendants City of Newark,

Ras Baraka, LaMonica McIver,

Luis A. Quintana, John Sharpe James,

Joseph A. McCallum, Jr., Anibal Ramos, Jr.,

Augusto Amador, Eddie Osborne,

Carlos M. Gonzalez, Harry Roes 1-10

LETTER OPINION FILED WITH THE CLERK OF THE COURT

Re: Special Police Organization of New Jersey v. City of Newark, et al.

Civil Action No. 19-8444 (SDW) (LDW)

Counsel:

Before this Court are: (i) Defendant Anthony Ambrose’s Motion to Dismiss pursuant to

Federal Rules of Civil Procedure (“Rules”) 12(b)(1), (2), and (6); (ii) Defendants City of Newark,

Ras Baraka, LaMonica McIver, Luis A. Quintana, John Sharpe James, Joseph A. McCallum, Jr.,

Anibal Ramos, Jr., Augusto Amador, Eddie Osborne, Carlos M. Gonzalez, and Harry Roes’ (1-

10) Motion to Dismiss pursuant to Rule 12(b)(5) and (6);1 and (iii) Plaintiffs Special Police

Organization of New Jersey and its members’2 (collectively, “Plaintiffs”) Cross Motion for Leave

to File a Second Amended Complaint3. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331

and 1367. Venue is proper pursuant to 28 U.S.C. § 1391(b). This Court, having considered the

parties’ submissions, decides this matter without oral argument pursuant to Rule 78. For the

reasons discussed below, Defendants’ respective Motions to Dismiss are GRANTED without

prejudice, and Plaintiffs’ Cross Motion for Leave to File a Second Amended Complaint is

DENIED without prejudice.

I. BACKGROUND & PROCEDURAL HISTORY

As Special Police Officers, Plaintiffs are independent contractors “who obtain employment

from private entities under the authority of the City of Newark.” (ECF No. 9 at 10 ¶ 12.) Through

the instant action, they take issue with Newark Police Department’s General Order 06-04 (“GO

06-04”), which provides:

Special Police Officers are required to volunteer twenty (20) hours

within a one (1) year period. . . . These hours can be completed by

working in the capacity of a Newark Special Police Officer at special

events or by conducting other functions as instructed by the Public

Safety Director or the Chief of Police for the City of Newark. . . .

Failure to do so may result in disciplinary action.

(GO 06-04 dated Oct. 5, 2017, ECF No. 9-1 at 49, 60; see also ECF No. 9 at 7-8 ¶¶ 2-5.)4 Plaintiffs

allege, inter alia, that Defendants are “forcing” Plaintiffs to work for no pay or less pay as

compared to regular police officers. (ECF No. 9 at 8 ¶¶ 4-5.)

On March 13, 2019, Plaintiffs brought the instant suit against the City of Newark

(“Newark”), Newark’s Public Safety Director Anthony Ambrose, Mayor Ras Baraka, and City

1 Hereinafter, the moving defendants will collectively be referred to as “Defendants.”

2 The following members are included in the suit as plaintiffs: Heriberto Acevado, Juan Alvira, James Andrews,

Palmer Amos, Joaquin Ayerbe, Jorge Alex Barbosa, Jabree Bell, Renaldo Barte, Thiago Bethonico, Alphonse Benton,

Kyle Brown, Clifton Burchett, Carlos Cabrera, Abalina Caraballo, Tracy Childress, Caroline Clark, Luciano Collazo,

Vincent Cordi, Charlie Davis, Curtis Dorch, Tuwan Floyd, Willie Floyd, Michael Gillens, Kendall Golden, Gennaro

Guanci, Ismael Guerrero, Giovanni Giida, Harrison Hogue, Mark Halloway, Jerome Jewell, Wilbert Johnson, Victor

Jorge, Larry King, Darrell Lampley, Alana Lawrence, Giuseppe Maiorano, Benjamin Mauriello, Delvis Matos, Maria

Melendez, Walter Melvin, John Meyers, Hortense Merritt, Reginald Merritt, Eusebio Moreira, Mark Odom, David

Paige, Oscar Pannella, Ronald M. Petford, Iris Philson, Ricardo Pratt, Manny Rebimbas, Gary Robinson, Miguel J.

Rodriguez, Jaime Rivera, Carmine Russo, Hakeem Saleem, Israel Segarra, John Silva, Alberto Smith, Shawn

Simmons, Anthony Sutton, Luis Soto, Elliot Taylor, Dikran Tehlikian, Roberto Tellez, Alain Varela, George Vasquez,

Louis Walker, Admiral Wimberly, Timothy Wise, James Wright, Tariq Yasin, and Devin Zamora. (ECF No. 9 at 3 ¶

1.)

3 This Court understands Plaintiffs’ “Cross Motion to Allow Supplamental [sic] Facts and Causes of Action to Be

Plead [sic][,]” to be a request for leave to file a Second Amended Complaint.

4 The City of Newark’s Public Safety Directors have issued superseding general orders over the years that have similar

volunteer requirements. (See, e.g., GO 06-04 dated Dec. 19, 2016, ECF No. 9-1 at 36, 47.)

Council members5. (ECF No. 1.) On May 1, 2019, Defendants moved to dismiss the Complaint.

(ECF Nos. 6-7.) However, because Plaintiffs timely amended their pleadings on May 17, 2019,

this Court administratively terminated Defendants’ motions on May 28, 2019. (ECF Nos. 9, 13.)

Plaintiffs’ eight-count Amended Complaint alleges: (i) reckless intentional infliction of severe

emotional distress; (ii) negligent, reckless, wanton disregard for Plaintiffs’ rights; (iii) involuntary

service in violation of 18 U.S.C. § 241 and Article I, paragraph 20 of the New Jersey Constitution;

(iv) violations of New Jersey’s Constitution; (v) intentional and reckless infliction of severe

emotional distress; (vi) violations of N.J. Stat. Ann. §§ 10:1-2, 10:5-12(f), 10:6-4, 40A:9-6; (vii)

claims under N.J. Stat Ann. § 10:6-2(c); and (viii) violations of federal and New Jersey Civil Rights

Acts, 42 U.S.C. §§ 1981, 1983, 1985, 1986, 1988, N.J. Stat. Ann § 10:6-2(c). (ECF No. 9.)

On June 14, 2019, Defendants filed the instant Motions to Dismiss the Amended

Complaint. (ECF Nos. 16-17.) On July 5, 2019, Plaintiffs opposed Defendants’ motions and cross

moved for leave to file a Second Amended Complaint. (ECF No. 22-9.) Plaintiffs also filed an

“Informal Brief in Opposition to Defendant’s submission.” (ECF No. 22-12.)6 On July 29, 2019,

Defendants submitted briefs in further support of their respective motions and in opposition to

Plaintiffs’ cross motion. (ECF Nos. 36-37). Plaintiffs filed a sur-reply on August 8, 2019, which

this Court rejected as impermissible under the Local Civil Rules. (ECF Nos. 38, 40.)

II. STANDARD OF REVIEW

An adequate complaint must be “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual

allegations must be enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted); see also Phillips v. Cty. of

Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (stating that Rule 8 “requires a ‘showing,’ rather than

a blanket assertion, of an entitlement to relief”).

In considering a motion to dismiss under Rule 12(b)(6), a court must “accept all factual

allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine

whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”

Phillips, 515 F.3d at 231 (external citation omitted). However, “the tenet that a court must accept

as true all of the allegations contained in a complaint is inapplicable to legal conclusions.

Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Fowler v. UPMC Shadyside,

578 F.3d 203 (3d Cir. 2009) (discussing the Iqbal standard). Determining whether the allegations

in a complaint are “plausible” is “a context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. If the “well-pleaded facts

do not permit the court to infer more than the mere possibility of misconduct,” the complaint

5 The named City Council members are Defendants LaMonica McIver, Luis A. Quintana, John Sharpe James, Joseph

A. McCallum, Jr., Anibal Ramos, Jr., Augusto Amador, Eddie Osborne, Carlos M. Gonzalez, and Harry Roes’ (1-10).

(ECF No. 9 at 5 ¶ 3(e).)

6 Plaintiffs’ duplicative submissions are inappropriate. This Court should not have to sift through a haphazardly

compiled set of documents to piece together Plaintiffs’ arguments or request for relief.

should be dismissed for failing to show “that the pleader is entitled to relief” as required by Rule

8(a)(2). Id.

III. DISCUSSION

A. Federal Claims

i. 18 U.S.C. § 241 (Count Three)

The Amended Complaint alleges that Defendants violated 18 U.S.C. § 241, “which

prohibits conspiracies undertaken to deprive an individual of his civil rights.” Varughese v. Robert

Wood Johnson Med. Sch., No. 16-02828, 2017 WL 4270523, at *13 (D.N.J. Sept. 26, 2017)

(quoting United States v. Piekarsky, 687 F.3d 134, 144 (3d Cir. 2012)). However, § 241 is a

criminal statute that does not provide a private right of action to plaintiffs in civil suits. Id. (citing

Watson v. Wash. Twp. of Gloucester Cty. Pub. Sch. Dist., 413 F. App’x 466, 468 (3d Cir. 2011)).

Therefore, Plaintiffs’ § 241 claim is dismissed because it fails to state a claim upon which relief

can be granted.

ii. 42 U.S.C. § 1981 (Count Eight)

To state a claim under § 1981, Plaintiffs must allege: (1) that they are members of a racial

minority; (2) that Defendants intentionally discriminated against Plaintiffs on the basis of race;

and (3) “discrimination concerning one or more of the activities enumerated in the statute[,] which

includes the right to make and enforce contracts.” Varughese, 2017 WL 4270523, at *6 (D.N.J.

Sept. 26, 2017) (quoting Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001)). The

Amended Complaint does not set forth any facts to suggest that Plaintiffs were discriminated

against based on their races or ethnicities. Therefore, Plaintiffs’ § 1981 claim is dismissed.

iii. 42 U.S.C. § 1983 (Count Eight)

Section 1983 does not itself create any rights, it merely provides “private citizens with a

means to redress violations of federal law committed by state [actors].” Woodyard v. Cty. of Essex,

514 F. App’x 177, 180 (3d Cir. 2013); see also Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979).

Here, the Amended Complaint appears to allege that Defendants violated Plaintiffs’ Fifth and

Fourteenth Amendment rights to equal protection and due process. However, Plaintiffs’ reliance

on the Fifth Amendment is misplaced because Defendants are not federal actors. See Telzer v.

Borough of Englewood Cliffs, No. 13-4306, 2018 WL 1757026, at *7 n.6 (D.N.J. Apr. 12, 2018)

(citing Malloy v. Hogan, 378 U.S. 1, 6 (1964)) (“The Fifth Amendment’s protections apply to the

federal government and are applied to the states by way of the Fourteenth Amendment.”).

Therefore, this Court will analyze Plaintiffs’ claims under the Fourteenth Amendment.

Plaintiffs base their equal protection claim on the theory that they belong to a “class of

one.” (ECF No. 22-9 at 22-23); see also Williams v. Dep’t of Corr., NJ, No. 18-15986, 2019 WL

2099840, at *2 (D.N.J. May 14, 2019) (citations omitted) (“To establish an equal protection claim,

a plaintiff must allege that he is either: (1) a member of a protected class and defendants treated

him differently from members of an unprotected class, or (2) he belongs to a ‘class of one’ and

defendants treated him differently from others similarly situated without any rational basis for the

difference in treatment.”). However, it is well established that “the class-of-one theory of equal

protection has no application in the public employment context.” Engquist v. Or. Dep’t of Agr.,

553 U.S. 591, 607 (2008).7 Because Plaintiffs’ claim relates to the terms and conditions of their

employment as Special Police for Newark, their equal protection claim is dismissed.

Plaintiffs’ due process claims are also insufficiently pled. “To prevail on either a

substantive or procedural due process claim challenging a state actor’s conduct, ‘a plaintiff must

establish as a threshold matter that he has a protected property interest to which the Fourteenth

Amendment’s due process protection applies.’” Otero v. Port Auth. of N.Y., No. 14-1655, 2016

WL 1260682, at *6 (D.N.J. Mar. 31, 2016) (quoting Nicholas v. Pa. State Univ., 227 F.3d 133,

139-40 (3d Cir. 2000)). Here, Plaintiffs assert their desire to be paid at the same rate as regular

police officers but have failed to articulate any constitutionally protected property interests. See

Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972) (“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.”); Otero v. Port

Auth. of N.Y., No. 14-1655, 2016 WL 1260682, at *10 (D.N.J. Mar. 31, 2016) (dismissing

substantive due process claims because they “arise out of Plaintiffs’ employment agreements with

[Port Authority Police Department] and related New Jersey employment law[,]” and thus are not

fundamental interests “which enjoy substantive due process protections”). Therefore, Plaintiffs’

procedural and substantive due process claims are dismissed.

The Amended Complaint also alleges that GO 06-04’s volunteer requirement violates the

Thirteenth Amendment. (ECF No. 9 at 8 ¶ 5, 10 ¶ 9.) The Amendment prohibits “compulsory

labor akin to African slavery[.]” United States v. Kozminski, 487 U.S. 931, 942 (1988) (quoting

Butler v. Perry, 240 U.S. 328, 332 (1916)). “[I]n every case in which [the Supreme] Court has

found a condition of involuntary servitude, the victim had no available choice but to work or be

subject to legal sanction.” Id. at 943. The twenty hours of volunteer work required to maintain

Plaintiffs’ contracts of employment is not the type of involuntary servitude prohibited by the

Thirteenth Amendment. Therefore, Plaintiffs’ claims sounding in “slave labor,” and “involuntary

servitude” are dismissed.8

7 See also Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1274 (11th Cir. 2008) (applying Engquist to a

government-contractor relationship and finding that the plaintiff “failed to assert a cognizable right to equal

protection”); Seymour’s Boatyard, Inc. v. Town of Huntington, No. 08-3248, 2009 WL 1514610, at *7 (E.D.N.Y. June

1, 2009) (collecting cases that “have applied Engquist to bar ‘class of one’ claims in connection with discretionary

decisions made outside the government-employee context”).

8 It is further noted that the statute of limitations for § 1983 actions in New Jersey is two years. See Backof v. N.J.

State Police, 92 F. App’x 852, 855 (3d Cir. 2004); see also N.J. Stat. Ann. § 2A:14-2. Though Plaintiffs argue that

their claims are timely because they arise from GO 06-04 as renewed on October 5, 2017, (ECF No. 22-9 at 27), the

Amended Complaint alleges that Newark Special Police have been forced to volunteer twenty hours a year since 2012.

(ECF No. 9 at 8 ¶ 5.) The continuing violations doctrine “does not apply when plaintiffs are aware of the injury at the

time it occurred.” Bennett v. Susquehanna Cty. Children & Youth Servs., 592 F. App’x 81, 85 (3d Cir. 2014) (quoting

Morganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 417 n.6 (3d Cir. 2003)). Thus,

Plaintiffs’ § 1983 claims are likely time barred.

iv. 42 U.S.C. §§ 1985 and 1986 (Count Eight)

Section 1985(3) creates a private right of action for persons injured by a conspiracy formed

“for the purpose of depriving, either directly or indirectly, any person or class of persons of the

equal protection of the laws, or of equal privileges and immunities under the laws.” 42 U.S.C. §

1985(3). To state a claim under § 1985(3), Plaintiff must allege:

(1) a conspiracy; (2) motivated by a racial or class based

discriminatory animus designed to deprive, directly or indirectly,

any person or class of persons to the equal protection of the laws;

(3) an act in furtherance of the conspiracy; and (4) an injury to

person or property or the deprivation of any right or privilege of a

citizen of the United States.

Pagliaroli v. Ahsan, No. 18-9683, 2019 WL 979244, at *5 (D.N.J. Feb. 28, 2019) (quoting Lake

v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997)). Here, Plaintiffs have failed to set forth facts from

which this Court could infer Defendants’ conspiratorial agreement or discriminatory animus. See

Carpenter v. Ashby, 351 F. App’x 684, 687 (3d Cir. 2009) (citing Bray v. Alexandria Women’s

Health Clinic, 506 U.S. 263, 267-68 (1993)). Plaintiffs’ “mere conclusory allegations of

deprivations of constitutional rights are insufficient to state a § 1985(3) claim.” Id. (citations

omitted).

Section 1986 claims are predicated on underlying violations of § 1985. See Whitehead v.

Wetzel, 720 F. App’x 657, 662 (3d Cir. 2017) (quoting Rogin v. Bensalem Twp., 616 F.2d 680,

696 (3d Cir. 1980)) (“A § 1986 claim requires an underlying violation of § 1985. Thus, ‘if the

claimant does not set forth a cause of action under the latter, [his] claim under the former must

also fail.’”). Because Plaintiffs have not set forth a viable § 1985 claim, their § 1986 claim also

fails.

v. 42 U.S.C. § 1988 (Count Eight)

Section 1988(b) provides that “the court, in its discretion, may allow the prevailing party .

. . a reasonable attorney’s fee” for actions brought under various federal statutes, including §§

1981, 1983, 1985, and 1986. Because the predicate federal claims are insufficiently pled,

Plaintiffs’ § 1988 claim is dismissed.

B. State Law Claims

Although 28 U.S.C. § 1367 permits federal courts to exercise jurisdiction over state law

claims, “if the federal claims are dismissed before trial, even though not insubstantial in a

jurisdictional sense, the state claims should be dismissed as well.” United Mine Workers of Am.

v. Gibbs, 383 U.S. 715, 726 (1966); see also Stehney v. Perry, 907 F. Supp. 806, 825 (D.N.J. 1995)

(“[A] federal district court may decline to exercise its supplemental jurisdiction over state law

claims if all federal claims are dismissed.”), aff’d, 101 F.3d 925 (3d Cir. 1996); Washington v.

Specialty Risk Servs., No. 12-1393, 2012 WL 3528051, at *2 (D.N.J. Aug. 15, 2012) (noting that

“where the claim over which the district court has original jurisdiction is dismissed before trial,

the district court must decline to decide the pendent state claims”) (alterations in original) (citing

Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000)) (internal citations omitted). Plaintiffs’ federal

claims have been dismissed and this Court declines to exercise supplemental jurisdiction over

Plaintiffs’ remaining state law claims.

C. Leave to Amend

Pursuant to Rule 15(a)(2), “a party may amend its pleading only with the opposing party’s

written consent or the court’s leave. The court should freely give leave when justice so requires.”

Fed. R. Civ. P. 15(a)(2). Generally, “[i]n the absence of undue delay, bad faith or dilatory motive

on the part of the movant, leave to amend should be freely given.” In re Merck & Co., Inc. Secs.,

Derivative & ERISA Litig., 493 F.3d 393, 400 (3d Cir. 2007). However, a district court acts within

its discretion where it denies leave to amend because the amendment would be futile. Id.

“‘Futility’ means that the complaint, as amended, would fail to state a claim upon which relief

could be granted.” Id. (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434

(3d Cir. 1997)).

Here, Plaintiffs seek to assert additional claims in their proposed Second Amended

Complaint, including, racketeering, retaliation, breach of the implied covenant of good faith and

fair dealing, and intentional inference with Plaintiffs’ beneficial status. (ECF No. 23-3.) As a

preliminary matter, Plaintiffs’ cross motion is defective because this Court’s May 28, 2019 Order

advised “that any future motions to file amended pleadings must include: ‘. . . a form of the

amended pleading that shall indicate in what respect(s) it differs from the pleading which it

proposes to amend, by bracketing or striking through materials to be deleted and underlining

materials to be added.’” (ECF No. 13 at 2 n.1.) Despite this directive, Plaintiffs’ cross motion

fails to properly indicate how the proposed Second Amended Complaint differs from the Amended

Complaint. Notwithstanding this procedural defect, the amendments would not cure any of the

abovementioned deficiencies, and the newly asserted claims are similarly unclear and conclusory.

As such, Plaintiffs’ cross motion is denied because the proposed Second Amended Complaint still

fails to state a claim upon which relief can be granted. See Budhun v. Reading Hosp. & Med. Ctr.,

765 F.3d 245, 259 (3d Cir. 2014).

IV. CONCLUSION

For the reasons set forth above, Defendants’ Motions to Dismiss are GRANTED without

prejudice, and Plaintiffs’ Cross Motion for Leave to File a Second Amended Complaint is

DENIED without prejudice.9 An appropriate Order follows.

/s/ Susan D. Wigenton

SUSAN D. WIGENTON, U.S.D.J

9 This Court will briefly address Plaintiffs’ request for “Entry of Default Against Defendants.” (ECF Nos. 24-25.)

Whereas Plaintiffs first filed their Amended Complaint on May 17, 2019, they may not enter defaults against

Defendants based solely on proof that their original Complaint was served on March 27, 2019. Furthermore, on or

about May 30, 2019, Defendants sought and obtained extensions of time to answer, move, or otherwise respond to the

Amended Complaint. (ECF Nos. 14-15.) Thereafter, they timely filed their Motions to Dismiss. (ECF Nos. 16-17.)

In light of the foregoing, Plaintiffs’ request for entry of default against Defendants is DENIED.

Orig: Clerk

cc: Parties

Leda Dunn Wettre, U.S.M.J.