DIAZ v. CITY OF PASSAIC

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

RICHARD DIAZ,

Plaintiff,

Civil Action No. 16-9282

Vv.

OPINION

CITY OF PASSAIC, et al,

Defendants.

John Michael Vazquez, U.S.D.J.

The current matter comes before the Court on the motions to dismiss Plaintiff's Second

Amended Complaint (the “SAC”), D.E. 51, filed by (1) Alex Blanco, D.E. 62; (2) the City of

Passaic (“Passaic” or the “City”), D.E. 63; and (3) Gary Schaer, D.E. 64. Plaintiff Richard Diaz

opposed the motions, D.E. 67, and Defendants filed briefs in reply, D.E. 72, 75, 76! The Court

reviewed all the submissions in support and in opposition and considered the motions without oral

argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons stated below,

the motions to dismiss are granted and the Second Amended Complaint is dismissed.

' In this Opinion, Blanco’s brief in support of his motion to dismiss (D.E. 62-1) will be referred to

as “Blanco MTD” and his reply brief (D.E. 75) will be referred to as “Blanco Reply”; Passaic’s

brief in support of its motion to dismiss (D.E. 63-1) will be referred to as “Passaic MTD” and its

reply brief (D.E. 76) will be referred to as “Passaic Reply”; Schaer’s brief in support of his motion

to dismiss (D.E. 64-1) will be referred to as “Schaer MTD” and his reply brief (D.E. 72) will be

referred to as “Schaer Reply”; and Plaintiff's brief in opposition to Defendants’ motions (D.E. 67)

will be referred to as “PIf. Opp.”.

I. FACTUAL AND PROCEDURAL BACKGROUND?

This matter involves allegations that Plaintiff, former Public Safety Director for the City,

was unlawfully removed from his position as political retribution for his mayoral campaign. For

purposes of the pending motion, the Court need not retrace this case’s full factual and procedural

history. The Court instead incorporates by reference the detailed background in its January 28,

2019 Opinion and Order that dismissed the Amended Complaint (the “FAC”) without prejudice.

D.E. 45, 46.

Diaz filed the SAC on March 19, 2019. D.E. 51. Like the FAC, the SAC generally alleges

that Defendants violated Plaintiff's constitutional rights while retaliating against Diaz for his

mayoral campaign.? In the FAC, among other things, Plaintiff alleged violations of procedural

due process, substantive due process, and equal protection. In the SAC, Plaintiff changes his

theory and now asserts a First Amendment political affiliation retaliation claim‘ pursuant to 42

2 The Court draws the following facts from the SAC, which are taken as true for the purposes of

the current motion. See James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012).

3 Paragraph 14 of the SAC indicates that “[flurther, and relating to Plaintiff being elected to office

of Mayor, / was advised on numerous occasions by Zaida Polanco, who was then a councilwoman,

that Schaer would not let it happen.” SAC § 14 (emphasis added). The Court assumes that the “I”

should be “Plaintiff.” In addition, although this paragraph seems to indicate that Plaintiff was in

fact elected as mayor, this allegation is not repeated in the SAC. The SAC also does not indicate

on or about when the “numerous occasions” occurred.

4 Plaintiff's First Amendment claim is not clearly pled in the SAC. It appears that Plaintiff's claims

could be construed either as claims for political affiliation retaliation or as claims for retaliation

for protected speech by a public employee under Pickering v. Bd. of Educ., 391 US. 563 (1968)

and its progeny. See, ¢.g., Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019).

Because the parties’ briefs focus on political affiliation retaliation, the Court construes the claim

as such. In addition, the allegations in the SAC sound in political affiliation. However, because

the Court is granting Plaintiff leave to amend, if Plaintiff is asserting a different theory of liability

than that analyzed herein, Plaintiff must make his theory clear in his amended pleading.

U.S.C. § 1983 and the New Jersey Civil Rights Act (“NJCRA”). To that end, the SAC pleads new

factual allegations to substantiate Plaintiff's political retaliation claims.

Plaintiff was named the City’s Public Safety Director in 2013. SAC 411. Plaintiff alleges

that in September 2016, he had a barbeque at his home and announced his candidacy for mayor.

Id. 4 15. Before the barbeque, plaintiff made his intentions to run known “to members of the

community and the City’s Governing Body[.]” /d. 12. It was clear, however, that Defendant

Schaer, the “political ‘boss’ of the City,” did not support Plaintiff's campaign. Jd. 13-14. In

fact, at some time in 2016 before the barbeque, Schaer made clear to Plaintiff that Schaer did not

support Plaintiff's mayoral candidacy. At the time, Plaintiff told Schaer that he did not intend to

run for mayor. Jd. 913. Moreover, non-party councilwoman Zaida Polanco advised Plaintiff “on

numerous occasions” that Schaer did not support Plaintiff. Jd. 7 14.

The Monday after the barbeque, Plaintiff was informed that Schaer arrived at City Hall and

was “visibly upset,” id. 17, and then had a closed-door meeting with Blanco and the City’s

Business Administrator. During the meeting, Plaintiff heard Schaer shout Plaintiff's name several

times. Jd. 20. The following day, Plaintiff was placed on administrative leave’ from his position

as Public Safety Director based on an accusation that Plaintiff interfered with an investigation

involving sexual harassment of City employees. Jd. {9} 21-24. Plaintiff claims that the allegation

that he interfered with an investigation was a pretext and that he was actually suspended as

retaliation for his mayoral campaign. /d. J 29, 38. Plaintiff adds that he was not given notice or

a hearing before being placed on leave. Jd. §{| 28-29. Similar to the FAC, Plaintiff also includes

claims that retaliatory disciplinary action was also taken against a Sergeant Bordamonte,

> The SAC presents conflicting allegations as to whether Plaintiff's administrative leave was with

or without pay. Initially, Plaintiff claims that it was with pay, id. { 21, but later seems to indicate

that it was without pay, id. 4 27.

apparently because Bordamonte was present when Plaintiff announced his run for mayor. Jd. ff

30-37.

The SAC brings two counts, the first under § 1983 and the second pursuant to the NJCRA.

Id. 39-50. Both counts are based on the same theory: unlawful retaliation against Plaintiff for

announcing his mayoral candidacy in violation of rights to freedom of expression, assembly, and

association. Jd.

I. MOTION TO DISMISS STANDARD

Defendants seek to dismissal Plaintiffs political retaliation claims pursuant to Rule

12(b}(6). Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss for “failure to state

a claim upon which relief can be granted.” For a complaint to survive dismissal under the rule, it

must contain sufficient factual matter to state a claim that is plausible on its face. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl, Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim

is facially plausible “when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Jd. Although the

plausibility standard “does not impose a probability requirement, it does require a pleading to show

more than a sheer possibility that a defendant has acted unlawfully.” Connelly v. Lane Const.

Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal quotation marks and citations omitted). As a

result, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery will

uncover proof of [his] claims.” Jd. at 789.

In evaluating the sufficiency of a complaint, district courts must separate the factual and

legal elements. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements

of the elements of a claim are legal conclusions, and therefore, not entitled to a presumption of

truth. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however,

“must accept all of the complaint’s well-pleaded facts as true.” Fowler, 578 F.3d at 210. Even if

plausibly pled, however, a complaint will not withstand a motion to dismiss if the facts alleged do

not state “a legally cognizable cause of action.” Turner v. J.P. Morgan Chase & Co., No. 14-7148,

2015 WL 12826480, at *2 (D.N.J. Jan. 23, 2015).

Ii. LEGAL ANALYSIS

Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 and the NJCRA, N.J.S.A. 10:6-2.

Section 1983, in relevant part, provides as follows:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress]. ]

Section 1983 does not provide substantive rights; rather, Section 1983 provides a vehicle for

vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

To state a Section 1983 claim, a plaintiff must demonstrate that “(1) a person deprived him of a

federal right; and (2) the person who deprived him of that right acted under color of state or

territorial law.” Burt v. CFG Health Sys., No. 15-2279, 2015 WL 1646849, at *2 (D.N.J. Apr. 14,

2015).

The NJCRA affords a private cause of action to

[a]ny person who has been deprived of any substantive due process or equal

protection rights, privileges or immunities secured by the Constitution or

laws of the United States, or any substantive rights, privileges or immunities

secured by the Constitution or laws of this State, or whose exercise or

enjoyment of those substantive rights, privileges or immunities has been

interfered with or attempted to be interfered with, by threats, intimidation

or coercion by a person acting under color of law.

N.J.S.A. 10:6-2. The “NJCRA was modeled after § 1983, [and so] courts in New Jersey have

consistently looked at claims under the NJCRA through the lens of § 1983 and have repeatedly

construed the NICRA in terms nearly identical to its federal counterpart.” Velez v. Fuentes, No.

15-6939, 2016 WL 4107689, at *5 (D.N.J. July 29, 2016) (internal quotations and citation

omitted). Therefore, the Court considers Plaintiff's Section 1983 and NJCRA claims together.

1. Political Retaliation as to Blanco and Schaer

To set forth a prima facie claim for political retaliation, a plaintiff must plead that “(1) she

was employed at a public agency in a position that does not require political affiliation, (2) she

was engaged in constitutionally protected conduct, and (3) this conduct was a substantial or

motivating factor in the government's employment decision.” Galli v. N.J. Meadowlands Comm'n,

490 F.3d 265, 271 (3d Cir. 2007). Defendants argue that Plaintiff fails to establish the first and

third elements of his prima facie claim. In this instance, the first element is dispositive.

“Employment decisions predicated on political affiliation are permitted when

‘policymaking’ positions are at issue.” Young v. Kisenwether, 902 F. Supp. 2d 548, 535 (M.D. Pa.

2012) (citing Galli, 490 F.3d at 271); see also Busa v. Township of Gloucester, 458 F. App’x 174,

176 (3d Cir. 2012) (“While the dismissal of public employees for political reasons may constitute

an impermissible infringement upon constitutional rights, an exception is often made for

employees holding policy-making position, as such employees may properly be required to support

the policy initiatives of elected officials.”). The “key factor” to determine whether a job involves

policymaking is “whether [the employee] has meaningful input into decision making concerning

the nature and scope of a major [ ] program.” Galli, 490 F.3d at 271 (quoting Armour v. County

of Beaverton, Pa., 271 F.3d 417, 420 (3d Cir. 2001)). A court should also consider “whether the

employee has duties that are non-discretionary or non-technical, participates in discussions or other

meetings, prepares budgets, possesses the authority to hire and fire other employees, has a high

salary, retains power over others, and can speak in the name of policymakers.” Jd.

In Busa, for example, the plaintiff brought suit after he was informed that he would not be

re-appointed as the Director of Public Works in a new mayor’s administration. Busa was a member

of the same party as the new mayor, however, Busa alleged that he was perceived as being a

member of the other party or part of “a different faction” of the new mayor’s party. Busa v.

Township of Gloucester, No. 10-1396, 2011 WL 1458026, at *1 (D.N.J. Apr. 15, 2011). To

determine whether the Director of Public Works position required political affiliation, the district

court considered township ordinances, the New Jersey Civil Service Commission, and the

Faulkner Act, N.J.S.A. 40:69A-1, ef seg. Busa, 2011 WL 1458026, at *5. Critically, “[a]ecording

to the Township organizational ordinance, the Director of Public Works is the head of the division

of streets, sanitation, and parks and playgrounds” and is “responsible for the proper and efficient

conduct of all public works functions of the Township government.” Jd. In addition, it was a non-

tenured position that reported directly to the mayor. Jd. Based on this information, the district

court determined that the Director of Public Works was a policy position. As a result, the district

judge concluded that the defendants demonstrated that the position was subject to dismissal based

on political affiliation. The plaintiff, therefore, could not establish a prima facie political

retaliation claim.’ Jd. On appeal, the Third Circuit affirmed the district court’s conclusion that

the plaintiff's prima facie political retaliation claim failed as a matter of law. Busa, 458 F. App’x

6 Although the issue was not raise by the parties, the Court notes that because Busa was a member

of the same party as the mayor who removed him from the Director of Public Works position,

Busa demonstrates that political affiliation claims may be premised on removal because an

individual supports a different faction within the same party, as is the case here, rather than solely

along traditional party lines. See also Galli, 490 F.3d at 272 (‘‘Accordingly, we have held that a

plaintiff can meet the second prong of a prima facie political discrimination claim if she suffers

because of action support for a losing candidate within the same political party.”).

at 177-78: see also Ness v. Marshall, 660 F.2d 517, 522 (3d Cir. 1981) (affirming finding that city

solicitor occupied a policymaking position such that mayor had the right to dismiss solicitor due

solely to political affiliation).

Here, Blanco’ contends that Plaintiff occupied a high-level, policymaking position such

that Plaintiff cannot plead a prima facie retaliation claim. Blanco MTD at 23. Thus, the critical

question is whether the position of Public Safety Director for the City constituted a policymaking

position. While the SAC clearly sets forth the position, it fails to indicate the duties and

responsibilities of the office. As a result, Blanco relies on Passaic Ordinances § 5-85 and § 5-86

as they existed during the relevant time period.®

“To decide a motion to dismiss, courts generally consider only the allegations contained in

the complaint, exhibits attached to the complaint and matters of public record.” Pension Benefit

Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). A city ordinance

constitutes a public record. See, e.g., Campbell v. Conroy, 55 F. Supp. 3d 750, 754 n. 3 (W.D. Pa.

2014) (relying on text of an ordinance to decide a Rule 12(b)(6) motion to dismiss because it was

a public record); see also Moore U.S.A., Inc. v. Standard Register Co., 139 F. Supp. 2d 348, 363

(W.D.N.Y. 2001) (“[C]ourts that consider matters of public record in a Rule 12(b)(6) motion are

limited to things such as statutes, case law, city charters, city ordinances, criminal case

dispositions, letter decisions of government agencies, published reports, records of administration

agencies, or pleadings in another action.”). Moreover, Plaintiff does not object to Defendants’

7 In addition to asserting his own arguments, Schaer joined in Blanco’s motion to dismiss. Schaer

MTD at 1 n.1.

8 Article X, which included §§ 5-85 and 5-86, was amended in 2016 to eliminate the position of

Public Safety Director and return control of the Police and Fire Departments to their respective

chiefs. See City of Passaic Ordinance No. 2085-16 (Dec. 6, 2016).

citation to the City ordinances. As a result, the Court considers the City Ordinances in deciding

the current motion.

As set forth in the Ordinances §§ 5-85 and 5-86, the Public Safety Director of Passaic was

appointed by the Mayor to serve during the Mayor’s term; reported to the Mayor; and was in

charge of the Police Department, the Fire Department, and the Office of Emergency Management.

City of Passaic Ordinance No. 1920-12 at 1-2 (Nov. 8, 2012) (enacting Article X, which

established the Public Safety Director role and responsibilities). The Public Safety Director was

responsible for all employees in these departments, which included hiring, training, and discipline.

In addition, the Public Safety Director was responsible for overseeing the daily operations for these

departments; formulating policies, plans, and procedures for the departments; developing and

administering an annual budget; and “otherwise function[ing] in an executive capacity in

evaluating, organizing, and directing the Police Department, Fire Department and Office of

Emergency Management.” /d. at 2. Thus, Ordinances §§ 5-85 and 5-86 make clear that Plaintiff

was the decision maker for major departments for the City. Accordingly, much like Busa, the

Passaic Public Safety Director role involved policymaking, such that political affiliation was an

appropriate requirement for the job.

Plaintiff argues that he did not hold a policymaking position because the mayor had the

power to appoint and oversee the position. Plf. Opp. at 15-16; 19-20. Yet, the same was true for

the Department of Public Works position in Busa. Busa, 2011 WL 1458026, at *5. As discussed,

the district court determined that the Director of Public Works position was “properly subject to

dismissal on the basis of party affiliation,” id. at *5, and this conclusion was affirmed by the Third

Circuit, Busa, 458 F. App’x at 178. Accordingly, the Court disagrees with Plaintiff's argument.

Because the Public Safety Director role involved policymaking, such that political

affiliation was an appropriate requirement for the job, Plaintiff's prima facie political affiliation

retaliation claim fails as a matter of law.

2. Political Retaliation as to the City

Plaintiff also asserts his political affiliation retaliation claims against the City. The City

seeks to dismiss Plaintiff's claims because the SAC fails to state a cognizable § 1983 claim against

a municipal entity. Passaic MTD at 7-8. A local government cannot be sued under § 1983 for an

injury inflicted by its employees or agents. Rather, a municipality may only be liable for purpose

of § 1983 if the “local government’s policy or custom inflicted the injury in question.” Estate of

Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (quoting Monell v. Dep't of Soc. Servs.,

436 U.S. 658 (1978) (internal punctuation marks omitted). In other words, Monell liability exists

if “the municipality, through one of its policymakers, affirmatively proclaimed the policy, or

acquiesced in the widespread custom, that caused the violation.” Adams v. City of Atlantic City,

294 F. Supp. 3d 283, 300 (D.N.J. 2018) (quoting Watson v. Abington Township, 478 F.3d 144,

155-56 (3d Cir. 2007).

Here, Plaintiff's claims against the City fail because Plaintiff does not establish that a

constitutional wrong occurred, As discussed, because the Court concludes that Plaintiff held a

position that involved political affiliation, Plaintiff cannot plead a prima facie claim for political

retaliation. Without a constitutional violation, the City cannot be held liable under Monell.’ See

Even if a constitutional wrong existed, Plaintiff fails to adequately allege the requisite policy or

custom. Relying on Pembaur v. Cincinnati, 475 U.S. 469 (1986), Plaintiff contends that a policy

existed because Blanco and Schaer were the decision makers for the City. Plaintiff continues that

because of their decision-making authority, a Monell claim can stand solely based on their conduct.

PIf. Opp. at 14-16. Pembaur “makes clear that an official with policymaking authority can create

official policy, even by rendering a single decision.” McGreevy v. Stroup, 413 F.3d 359, 367-68

(3d Cir. 2005). In other words, to attach Monell liability to a municipality based on a single

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Mattern y. City of Sea Isle, 131 F. Supp. 3d 305, 318 (D.N.J. 2015) (“In the absence of a

constitutional violation, [Defendant] cannot be held liable under § 1983 for failure to train or for

acquiescing in an unconstitutional custom.”). The claims asserted against in the City, therefore,

are dismissed.

IV. CONCLUSION

For the reasons discussed above, Defendants’ motions to dismiss (D.E. 62, 63, 64) are

GRANTED. A court must grant leave to amend a complaint “absent evidence that amendment

would be futile or inequitable.” Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). An

amended complaint would be futile if it “would fail to state a claim upon which relief could be

granted.” Jd. at 115. Given Plaintiffs legal theories, the Court has serious concerns that any

decision, “the alleged Constitutional violation must be considered an official action taken by the

municipality through an individual that has final policymaking authority.” Mrazek v. Stafford

Township, No. 13-1091, 2017 WL 1788655, at *9 (D.N.J. May 5, 2017).

Plaintiff's argument, however, is not supported by the facts pled in the SAC. As to Schaer,

the SAC pleads that he has de facto control over the City based on his “political influence”,

“patronage power”, and “ability to influence State aid decisions.” SAC 49. Even if accepted as

true, de facto power is not the same as having final policymaking authority. As a result, Schaer’s

decisions, assuming that one is even pled, cannot amount to a City policy or custom. As mayor,

Blanco’s decisions could conceivably create a policy or custom as recognized in Pembaur. But

the SAC fails to allege sufficient facts by which the Court could assume that Blanco made the

decision to place Plaintiff on administrative leave, or even that this decision was final and

unreviewable. See Hill v. Borough of Kutztown, 455 F.3d 225, 245 (3d Cir. 2006) (explaining that

for Monell liability to attach to the decision from an official with final policymaking authority that

decision must, among other things, be final and unreviewable).

For purposes of Moneil liability, a custom “can be proven by showing that a given course

of conduct, although not specifically endorsed or authorized by law, is so well-settled and

permanent as virtually to constitute law.” Estate of Roman, 914 F.3d at 798 (quoting Bielevicz v.

Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)). To establish the alleged custom of political

retaliation, Plaintiff argues that an incident involving a former sergeant with the Passaic Police

Department, Roy Bordamonte, which is discussed in the SAC, establishes a custom of political

retaliation. SAC {[ 30-37. The fact that Plaintiff was attempting to plead a Monell claim based

on an unconstitutional custom is not at all clear in the SAC. The two incidents are factually

distinct, and the SAC makes no efforts to tie to the two events together such that they could

establish a pattern of misconduct.

il

attempted amendment will be futile. However, because the SAC relies on entirely new theories,

the Court will provide Plaintiff with a final opportunity to amend his pleading. Accordingly, the

Second Amended Complaint is dismissed without prejudice and Plaintiff may file an amended

pleading that is consistent with this Opinion, within thirty (30) days. If Plaintiff fails to file a third

amended complaint within the time allotted, this matter will be dismissed with prejudice. An

appropriate Order accompanies this opinion.

Dated: November 19, 2019

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