HEINE v. TOWNSHIP OF CEDAR GROVE

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ELLEN HEINE,

Plaintiff,

Civil Action No. 18-0441 (ES) (CLW)

v.

OPINION

TOWNSHIP OF CEDAR GROVE, et al.,

Defendants.

SALAS, DISTRICT JUDGE

Before the Court is defendant Township of Cedar Grove’s (“Cedar Grove”) unopposed1

motion to dismiss pro se plaintiff Ellen Heine’s (“Plaintiff”) Amended Complaint (D.E. No. 18

(“Am. Compl.”)). (D.E. No. 22). The Court has considered the relevant submissions and decides

the motion without oral argument. See Fed. R. Civ. P. 78(b); L. Civ. R. 78.1(b). Subject matter

jurisdiction is proper under 28 U.S.C. § 1331 based upon Plaintiff’s assertion of federal claims.

(See Am. Compl. at 1). For the reasons stated herein, the Court GRANTS Cedar Grove’s motion

to dismiss and dismisses this action with prejudice.

1 Cedar Grove filed its motion on April 29, 2019, which was returnable on June 3, 2019. (See D.E. Dated

04/30/2019). Although Plaintiff’s opposition was due by May 20, 2019, Plaintiff did not file an opposition or request

any extensions. On September 4, 2019, more than three months after her deadline had passed, Plaintiff filed her

opposition, along with a request that the Court accept the same “as within time.” (D.E. Nos. 26, 27 & 27-1). Plaintiff

provides no explanation, much less any good cause, why she waited over 100 days after missing her filing deadline to

submit her opposition. And although Plaintiff is pro se, that is not an excuse for outright ignoring the Federal Rules

of Civil Procedure. See, e.g., Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (noting that pro se

litigants “cannot flout procedural rules—they must abide by the same rules that apply to all other litigants”); Caidor

v. Onondaga Cnty., 517 F.3d 601, 605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves

regarding procedural rules and to comply with them.”). Accordingly, the Court declines to consider Plaintiff’s

untimely response and decides the instant motion as unopposed.

I. Background

The Court assumes the parties’ familiarity with the underlying facts of this case and intends

this Opinion to be read in conjunction with its prior Opinion and Order. (See D.E. Nos. 16 & 17).

Previously, the Court dismissed Plaintiff’s original complaint without prejudice for failure

to state a claim under Rule 12(b)(6). (D.E. No. 16 at 15). Particularly, the Court dismissed the

Section 1983 claims for failure to allege the existence of an unlawful policy or custom as the

proximate cause of the claimed constitutional violations. (Id. at 11). The Court also dismissed the

Section 1985 claim since Plaintiff did not allege that “Defendants acted in concert, or that there

was an understanding or agreement to conspire against Plaintiff.” (Id. at 12).

The Amended Complaint raises seven counts against Cedar Grove, the Office of Probation

Services, Rashad Shabaka-Burns as director of the Office of Probation Services, the Passaic

County Probation Office, Dawn Moody as Chief of Probation Officer, Christine Dye as president

of the Cedar Grove Board of Education, Joseph Cicala as mayor of Cedar Grove, Judge Nicholas

S. Brindisi, and the Attorney General of the State of New Jersey (collectively, “Defendants”). (See

generally Am. Compl.). Plaintiff asserts claims under 42 U.S.C. §§ 1983 and 1985 for alleged

violations of her First Amendment right to free expression, Fifth Amendment right to property,

and Eighth Amendment protection against cruel and unusual punishments. (See id. at 2–12).

These claims largely rely on the same disjoined and confusing allegations asserted in the original

complaint. (Compare Am. Compl., with D.E. No. 1).

II. Legal Standard

To state a claim, a complaint must set forth a “short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To withstand a motion to

dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id.

In assessing a Rule 12(b)(6) motion, “[a]ll allegations in the complaint must be accepted

as true, and the plaintiff must be given the benefit of every favorable inference drawn therefrom.”

See Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Kulwicki v. Dawson, 969 F.2d

1454, 1462 (3d Cir.1992)). But a reviewing court does not accept as true the complaint’s legal

conclusions. See Iqbal, 556 U.S. at 678. A court therefore must first separate a complaint’s facts

from its legal conclusions and then assess whether those facts raise a plausible claim for relief.

See Fowler v. UPMC Shadyside, 578 F.3d 203, 211–12 (3d Cir. 2009).

Relevant here, “[a] document filed pro se is ‘to be liberally construed’ . . . and a pro se

complaint, however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). “Yet there are limits

to our procedural flexibility” when it comes to pro se litigants. Mala v. Crown Bay Marina, Inc.,

704 F.3d 239, 245 (3d Cir. 2013). Pro se litigants are not relieved of the obligation to plead enough

factual matter to meet Rule 8(a)(2)’s plausibility standard. See Franklin v. GMAC Mortg., 523 F.

App’x 172, 172–73 (3d Cir. 2013); D’Agostino v. CECOMRDEC, No. 10-4558, 2010 WL

3719623, at *1 (D.N.J. Sept. 10, 2010) (“The Court need not, however, credit a pro se plaintiff’s

‘bald assertions’ or ‘legal conclusions.’”). A litigant’s pro se status likewise does not relieve him

or her of the obligation to “clearly and specifically” identify which claims pertain to which

defendants. Pushkin v. Nussbaum, No. 12-0324, 2013 WL 1792501, at *4 (D.N.J. Apr. 25, 2013).

III. Discussion

A. Section 1983 Claims

Section 1983 imposes civil liability upon “any person who, acting under the color of state

law, deprives another individual of any rights, privileges, or immunities secured by the

Constitution or laws of the United States.” Padilla v. Twp. of Cherry Hill, 110 F. App’x 272, 278

(3d Cir. 2004). The Amended Complaint asserts that Defendants violated Plaintiff’s First, Fifth,

and Eighth Amendment rights, but the Amended Complaint does not provide factual allegations

that would support any such claims.

For instance, the Amended Complaint appears to assert that Plaintiff’s right to “free

expression in the home” was violated. (Am. Compl. at 5, ¶ 1 & at 11, ¶ 3). But Plaintiff provides

no factual allegations describing what exactly her expression or speech was, how Defendants

prevented that speech, or how exactly her First Amendment rights were violated at all. (See

generally id.). Nor do the allegations give rise to the inference that Defendants retaliated against

Plaintiff for any constitutionally protected conduct in a way that would deter a person of ordinary

firmness from exercising said rights. See Conard v. Pa. State Police, 902 F.3d 178, 183 (3d Cir.

2018) (outlining elements for a First Amendment retaliation claim). Thus, Plaintiff’s failure to

“identify the exact contours of the underlying right said to have been violated,” see Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998), and to allege anything more than “threadbare

recitals” and “blanket assertion[s],” Twombly, 550 U.S. at 556 n.3, is fatal to her Section 1983 First

Amendment claim.

Similarly, Plaintiff appears to assert that her Fifth Amendment right to property was

violated. (Am. Compl. at 5, ¶ 1). But the Amended Complaint provides no factual allegations that

would give rise to the inference that Plaintiff’s property was subject to a taking or condemnation.

And while Plaintiff asserts that the municipal court required Plaintiff to provide an address

different from her Paterson property for purposes of completing her probation (Am. Compl. at 5,

¶ 4 & at 6, ¶ 8), nowhere does she allege that the judge or any defendant deprived her of all or

substantially all the beneficial use of her Paterson property. See In re 106 N. Walnut, LLC, 447 F.

App’x 305, 308 (3d Cir. 2011) (holding that a property owner is only entitled to recover on an

inverse condemnation claim if the government action deprives him of all or substantially all of the

beneficial use of the property); see also Williams v. USA, No. 18-14455, 2018 WL 4929390, at *5

(D.N.J. Oct. 11, 2018) (dismissing Fifth Amendment takings claim when the plaintiff failed to

allege whether the government took her land from her). Thus, the Amended Complaint does not

allege a violation of the Fifth Amendment right to property that is facially plausible.

Finally, Plaintiff attempts to assert a claim for violation of her Eight Amendment protection

against cruel and unusual punishments. (Am. Compl. at 5, ¶ 1). But again, there is absolutely no

cognizable or comprehensible factual allegation in the entire Amended Complaint that Plaintiff

was ever subject to a cruel or unusual punishment. Rather, it appears that Plaintiff’s Eight

Amendment claim is premised on the fact that her trespass charge resulted in a sentence of

probation, which if violated, could result in a term of incarceration. (Id. at 5, ¶¶ 2 & 4). Plaintiff

fails to show, however, that this punishment included “elements of severity, arbitrary infliction,

unacceptability in terms of contemporary standards, or gross disproportion.” Presley v. Morrison,

950 F. Supp. 1298, 1301 (E.D. Pa. 1996) (quoting Ingraham v. Wright, 430 U.S. 651, 658 (1977);

Estelle v. Gamble, 429 U.S. 97, 103 (1976) (noting that a punishment is cruel and unusual if it is

incompatible with “the evolving standards of decency that mark the progress of a maturing

society,” or “involve[s] the unnecessary and wanton infliction of pain”). Thus, Plaintiff fails to

present “factual content that allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” See Iqbal, 556 U.S. at 678.

Accordingly, Plaintiff does not actually allege a violation of any cognizable constitutional

right. Rather, the crux of Plaintiff’s complaint is her grievance with “the narrowly envisioned

zoning scheme” of Cedar Grove, which does not observe the international concept of a habitat and

“has never offered housing opportunities for individuals like [Plaintiff].” (See, e.g., Am. Compl.

at 4, ¶ 22 (“[T]he individuals that represent and interpret municipal ordinances and policies such

as the municipal court officials have not considered that there should be any housing for

individuals such as [Plaintiff].”); id. ¶ 19 (“Cedar Grove has zoning schemes that are different

from the zoning schemes in Paterson where [Plaintiff] lived.”); id. at 5–6, ¶¶ 5–8 & at 11–12, ¶¶

3–5 (alleging that Judge Brindisi is a participant “in the thinking that gave rise to the ordinances

and zoning scheme,” because he has presided over many ordinance violation matters and has

demonstrated a “deliberate indifference to the possibility of diverse lifestyles and [an individual’s]

expression in the home”); id. at 7, ¶ 5 (asserting that “[t]he actions of the Office of Probation

Services display a deliberate indifference to the issues of diversity in housing and housing access

and housing needs for individuals who are on probation” because the Office does not “offer

information or avenues to access assistance for housing and homelessness prevention”); id. ¶ 6

(alleging that the “Office of Probation Services” provides “a Non-specific description of ‘what is

a house’ so that their employees and the Courts can make interpretations that are detrimental to

their probationers,” allowing exclusionary housing standards that do not accept “diverse lifestyles

and homes” and that are not in conformity with “the more generalized international concept off

[sic] what a home is”); id. at 8, ¶ 9 (asserting that the actions by the Passaic County Probation

Office demonstrates a complete indifference to zoning variations); id. at 10–11, ¶¶ 3–11 (asserting

that Cedar Grove’s governing body has implemented ordinances and zoning schemes that do not

recognize the concept of a “habitat,” and that the town’s continued development has conformed to

narrow concepts of zoning, excluding individuals like Plaintiff).

At best, then, the allegations in the Amended Complaint merely provide a generalized

grievance about Cedar Grove’s zoning scheme and failure to recognize the concept of a habitat or

“diverse lifestyles and homes.” But again, no such constitutional right exists (see D.E. No. 16 at

14–15), and as the Court has told Plaintiff numerous times, such generalized grievances about the

conduct of the municipal government does “not establish the kind of particularized injury

necessary for Article III standing,” see, e.g., Heine v. Dir. Of Codes & Standards, No. 15-8210,

2017 WL 3981135, at *16 (D.N.J. Sept. 11, 2017), aff’d sub nom. Heine v. Bureau Chief Div. of

Fire & Safety, 765 F. App’x 816 (3d Cir. 2019). Consequently, Plaintiff fails to allege any

cognizable Section 1983 claim upon which relief may be granted.

B. Monell Liability

Plaintiff’s claims against Cedar Grove must also be dismissed because the Amended

Complaint fails to allege sufficient facts to state a plausible claim under Monell v. Department.of

Social Services, 436 U.S. 658 (1978). “When a suit against a municipality is based on [Section]

1983, the municipality can only be liable when the alleged constitutional transgression implements

or executes a policy, regulation or decision officially adopted by the governing body or informally

adopted by custom.” Mulholland v. Gov’t Cnty. of Berks, 706 F.3d 227, 237 (3d Cir. 2013)

(quoting Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)). In other words, “a local

government may not be sued under [Section] 1983 for an injury inflicted solely by its employees

or agents,” Monell, 436 U.S. at 694, but “it can be held responsible as an entity when the injury

inflicted is permitted under its adopted policy or custom,” Beck, 89 F.3d at 971.

To establish municipal liability the plaintiff must: (i) demonstrate the existence of an

unlawful policy or custom; (ii) that she suffered a deprivation of the rights, privileges, or

immunities secured by the Constitution or laws of the United States; and (iii) that the policy or

custom was the proximate cause of the alleged deprivation. Bielevicz v. Dubinon, 915 F.2d 845,

850 (3d Cir. 1990).

Here, as with the prior complaint, Plaintiff fails to allege sufficient facts to show the

existence of a policy or custom that was the proximate cause of any alleged deprivation of her

constitutional rights. In the prior Opinion the Court noted that:

“[T]hese Monell claims fail to allege the existence of an unlawful

policy or custom which was the proximate cause of the claimed Fifth

and Eighth Amendment violations. That is, Plaintiff does not

identify a policy or custom implemented by Cedar Grove that

requires the municipal judge to only use the local ordinances,

ignoring the ordinance of the municipality where the property in

question is located. Nor has Plaintiff alleged that the judges at Cedar

Grove Municipal Court have a common practice or custom of

disregarding the relevant zoning ordinances of other municipalities,

and that therefore, Cedar Grove has shown a deliberate indifference

to the known or obvious consequences of such actions. Nor has

Plaintiff alleged that the municipal judge’s decision was the act of a

policymaker who possess final authority to establish municipal

policy in that area.”

(D.E. No. 16 at 11 (citations omitted)). Plaintiff’s Amended Complaint largely regurgitates the

deficient allegations asserted in the prior dismissed complaint. At most, Plaintiff adds an

additional assertion that her First Amendment right was also somehow violated (see Am. Compl.

at 5), but still without sufficient factual matter to meet the Rule 8(a) pleading requirements.

Instead, Plaintiff again asserts that “Cedar Grove had the custom and practice to ignore the

options for careers in construction and the trades for women,” because throughout her time as a

student in Cedar Grove’s public schools she never received career counseling about opportunities

in “the construction trades.” (Am. Compl. at 9, ¶¶ 2–9). But the Amended Complaint fails to

provide any factual allegations that would connect such a custom or practice to any alleged

deprivation, and as the Court previously explained, “the Court sees no connection between that

childhood experience and how the municipal court judge made his determination more than 40

years later in September 2016.” (D.E. No. 16 at 11 n.7).

Plaintiff also again relies on the assertion that there is an unconstitutional custom or

practice because the municipal judge applied Cedar Grove’s zoning ordinances (instead of

Paterson’s zoning ordinances) when determining whether Plaintiff’s Paterson address was proper

for purposes of probation, and because the judge is very familiar with Cedar Grove’s zoning

scheme and ordinances. (See, e.g., Am. Compl. at 5–6, ¶¶ 5–9 & at 12, ¶ 5). But Plaintiff still

fails to provide any factual allegations to show that Cedar Grove somehow influenced the

municipal judge, or that there is a systematic practice of ignoring other township’s zoning

ordinances that is so well-settled and permanent as to virtually constitute the law. See Bielevicz,

915 F.2d at 850. And as the Court emphasized before, an isolated mistake or mere negligence by

some municipal agent is not enough to satisfy the Monell standard. (See D.E. No. 16 at 12 (citing

Solomon v. Phila. Hous. Auth., 143 F. App’x 447, 457 (3d Cir. 2005); Adams v. City of Atl. City,

294 F. Supp. 3d 283, 301 (D.N.J. 2018)).

Because Plaintiff fails to address any of the deficiencies outlined by the Court’s prior

Opinion and Order (see D.E. Nos. 16 & 17), the Section 1983 claims are dismissed with prejudice.

See, e.g., Brown v. Cantineri, No. 14-6391, 2017 WL 481467, at *2 (D.N.J. Feb. 6, 2017)

(“Because I have already given [the plaintiff] one opportunity to amend, this dismissal is with

prejudice.”); accord Foster v. Raleigh, 445 F. App’x 458, 460 (3d Cir. 2011); LeJon-Twin El v.

Marino, No. 16-2292, 2017 WL 1591856, at *4 (D.N.J. Apr. 28, 2017); Venditto v. Vivint, Inc.,

No. 14-4357, 2015 WL 926203, at *15 (D.N.J. Mar. 2, 2015).

C. Section 1985 Claim

The Amended Complaint also reasserts Plaintiff’s Section 1985(3) claim. (See Am.

Compl. at 2). To properly allege a civil rights conspiracy under 42 U.S.C. § 1985(3), Plaintiff

must allege the existence of “(1) a conspiracy; (2) 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; and (3) an act in furtherance of the conspiracy; (4) whereby a

person is injured in his person or property or deprived of any right or privilege of a citizen of the

United States.” Kirkland v. Dileo, 581 F. App’x. 111, 118 (3d Cir. 2014) (quoting Farber v. City

of Paterson, 440 F.3d 131, 134 (3d Cir. 2006)). “The factual allegations supporting the conspiracy

claim may not be generalized or conclusory.” Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.

1997); see also Schlichten v. Cnty. of Northampton, 279 F. App’x. 176, 179 (3d Cir. 2008)

(requiring a conspiracy to be pled with specificity). Thus, mere conclusory allegations that a

conspiracy exists will not survive a motion to dismiss. Garlanger v. Verbeke, 223 F. Supp. 2d

596, 605 (D.N.J. 2002). Instead, “a plaintiff must set forth allegations that address the period of

the conspiracy, the object of the conspiracy, and the certain actions of the alleged conspirators

taken to achieve that purpose.” Ivan v. Cnty. of Middlesex, 595 F. Supp. 2d 425, 484 (D.N.J. 2009).

Here, Plaintiff again fails to allege facts sufficient to support any of these elements. (See

generally Am. Compl.). For instance, the Amended Complaint does not identify the period of the

conspiracy, its object, or the specific actions taken by the conspirators in furtherance of that

purpose. (See generally Am. Compl.). Similarly, as with the prior complaint, Plaintiff does not

allege any facts to show that there was a meeting of the minds among the named Defendants. See

Startzell v. City of Phila., 533 F.3d 183, 205 (3d Cir. 2008). Instead, Plaintiff only provides legal

conclusions devoid of any factual support or specificity. (See, e.g., Am. Compl. at 6, ¶ 9 (asserting

that Judge Brindisi’s actions and “the Probation Office’s strict adherence to the necessity of

probationers to provide what was considered a ‘standard home’ created a conspiracy-like

environment”); id. at 12, ¶ 1 (“The actors, who are the defendants, have worked together with

intent in the pursuit of their tasks which have resulted in a discriminatory animus against the

Plaintiff with reference to housing.”); id. ¶ 2 (asserting that the various actions by the different

Defendants “is amenable to the characterization of a ‘conspiracy’”). And while the Court is

required to give Plaintiff’s factual allegations “every favorable inference to be drawn therefrom,”

Malleus, 641 F.3d at 563, it is Plaintiff’s burden to allege sufficient facts to create a cognizable

claim, see Iqbal, 556 U.S. at 678; Franklin, 523 F. App’x at 173. Thus, the Amended Complaint

plainly fails to allege a plausible civil rights conspiracy claim.

And because the Amended Complaint completely fails to cure the deficiencies noted in the

original complaint, Plaintiff’s Section 1985 claim is dismissed with prejudice. See, e.g., Brown,

2017 WL 481467, at *2; Foster, 445 F. App’x at 460; LeJon-Twin El, 2017 WL 1591856, at *4;

Venditto, 2015 WL 926203, at *15.

IV. Conclusion

For the foregoing reasons, the Court GRANTS Cedar Grove’s motion and dismisses

Plaintiffs’ Amended Complaint with prejudice. And because the Amended Complaint fails to

plead any plausible claim, the Court dismisses this matter against all remaining defendants. See

Estate of Fabics v. City of New Brunswick & its Agents, 674 F. App’x 206, 210 (3d Cir. 2016)

(stating that “dismissal of the entire action was warranted regardless of who had answered or

moved to dismiss the complaint” where the complaint fails to comply with Rule 12(b)(6)). An

appropriate Order accompanies this Opinion.

s/Esther Salas

Esther Salas, U.S.D.J.