SALKIN v. LABROSSE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

RICHARD SALKIN,

Plaintiff,

Civ. No. 2:18-13910 (WJM) (MF)

v.

JOHN LABROSSE, et al., OPINION

Defendants.

WILLIAM J. MARTINI, U.S.D.J.:

Plaintiff Richard Salkin, the former attorney for the Board of Education of Hackensack,

New Jersey, brings this civil rights and defamation action against Hackensack Mayor John

Labrosse; Hackensack School Board (“HSB”) Members Frances Cogelja, Lance Powell, and

Carlos Velez (together, “Candidate Defendants”); their campaign manager Wendy Martinez;

Vision Media Marketing (“Vision”); and Vision’s principal Philip Swibiniski (collectively,

“Defendants”). Plaintiff alleges that during a campaign for three positions on the HSB,

Defendants defamed Plaintiff and made statements about his job performance and political

affiliations that resulted in his constructive discharge. The matter comes before the Court on

Defendants’ motions to dismiss the civil rights claims (Counts One and Two). ECF Nos. 62

(“Candidate Defendants’ Motion”), 63 (“Labrosse Motion”), 64 (“Swibinski Motion”), & 66

(“Martinez Motion”). For the reasons set forth below, the motions are GRANTED.

L BACKGROUND

The basic facts and procedural history of this matter are set forth in the Court’s June 13,

2019 Opinion (“June Opinion”), familiarity with which is assumed. ECF No. 43. In short,

Plaintiff alleges that due to the Candidate Defendants’ false and defamatory statements made

during their 2018 campaign for seats on the HSB, Plaintiff was constructively discharged. In

the June Opinion, the Court dismissed Plaintiff's civil rights claims because the conduct at issue

occurred while the Candidate Defendants were private citizens acting alone, and thus Plaintiff

failed to plead conduct “under color of state law.” Id. at 6.

The Court permitted Plaintiff to amend his Complaint. Plaintiff did so on June 27, 2019.

ECF No. 48. Due to a filing error, Plaintiff filed a Third Amended Complaint (“TAC”), ECF

No. 53. The TAC asserts three claims: (1) First Amendment retaliation and Section 1983

conspiracy against all Defendants except Vision;!' (2) violations of New Jersey’s Civil Rights

Act (“CRA”) against the same Defendants; and (3) defamation by all Defendants.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure (“FRCP”) 12(b)(6) provides for the dismissal of a

complaint if a plaintiff fails to state a claim upon which relief can be granted. The movant bears

the burden of showing the complaint must be dismissed. Hedges v. United States, 404 F.3d 744,

750 (3d Cir. 2005). “[A]II allegations in the complaint must be accepted as true, and the plaintiff

must be given the benefit of every favorable inference to be drawn therefrom.” Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011). The court does not accept “legal conclusions” as

true, and “[t]hreadbare 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).

To survive a 12(b)(6) motion, “a complaint must contain sufficient factual matter .. . to

‘state a claim to relief that is plausible on its face.’” Jd. (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.” Jd. “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.” Jd.

Il. DISCUSSION

While Defendants filed four separate motions to dismiss, they all generally argue that

Plaintiff failed to state a claim on which relief can be granted because, inter alia, (1) Plaintiff

failed to plausibly allege action under color of state law and (2) regardless, Defendants are

entitled to qualified immunity. The Court agrees with Defendants.

A. Section 1983 Claim (Count One)

To allege a prima facie case under Section 1983, a plaintiff must demonstrate that a

person, acting under color of state law, deprived her of a federal right. Marran v. Marran, 376

F.3d 143, 155-56 (3d Cir. 2004) (citing Berg v. County of Allegheny, 219 F.3d 261, 268 (3d Cir.

2000)). Courts analyze Section 1983 claims in two parts, which may be addressed in either

order: whether plaintiff has alleged a violation of a right secured by the Constitution and the laws

of the United States and whether the alleged deprivation was committed by a person acting under

color of state law. Sprauve v. W. Indian Co. Ltd., 799 F.3d 226, 229 (3d Cir. 2016) (cleaned up).

1. Under Color of State Law

The requirement under the second prong that the person act “under color of state law”

confines Section 1983 liability to “those who deprive persons of federal constitutional or

statutory rights ‘under color of any statute, ordinance, regulation, custom, or usage’ of a state.”

Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (quoting Leshko v. Servis, 423 F.3d 337, 339

(3d Cir. 2005)). “[Mlere[] private conduct, no matter how discriminatory or wrongful” does not

fall within the scope of Section 1983. Sullivan, 526 U.S. at 49 (1999) (quoting Blum v. Yaretsky,

457 U.S. 991 (1982)). But a non-government official or entity can act under color of law if “the

'! The June Opinion also addressed and dismissed claims against the City of Hackensack and its school

district. However, Plaintiff did not reallege liability against those defendants in the TAC.

private party has acted with the help of or in concert with state officials.” Borrell v. Bloomsburg

Univ., 870 F.3d 154, 160 (3d Cir. 2017) (citation omitted).

Plaintiff provides two theories for ascribing Defendants’ conduct to the state:

(1) “Powell, Velez, Cogelja, Martinez and Swibinski acted in concert with Mayor Labrosse, who

acted under color of law” and (2) “upon becoming board members, Defendants Powell, Velez,

and Cogelja refused to issue a resolution re-appointing Plaintiff, thus indicating that Plaintiff

would be terminated and giving him no choice but to resign.” Opp. at 14. Accordingly, the

Court will determine whether Mayor Labrosse acted under color of law. If so, the Court will

decide whether the other Defendants sufficiently “acted in concert” with Labrosse’s official

action. Then, the Court will turn to re-appointment.

2. Mayor Labrosse’s “Official” Conduct

With respect to Labrosse’s conduct, once conclusory recitals of elements are extracted,

Plaintiff alleges that: (1) The Candidate Defendants were “affiliated with a ‘Labrosse Team’”

and “were publicly supported by Hackensack mayor John Labrosse.” All five members of the

Hackensack City Counsel were also on the “Labrosse Team.” TAC ff 35-36. (2) On February

26, 2018, Martinez filed an Open Records Act request related to Plaintiff's bills “on behalf of

the other individual defendants, in order to retaliate against Plaintiff for his actual and/or

perceived conduct and association with the school board candidates up for election against [the

Candidate] Defendants.” TAC 939. (3) On April 5, 2018, “Labrosse and the Labrosse Team

issued a press release” (“Press Release”) claiming that (a) Plaintiff raised his own compensation

by 50%, (b) overbilled taxpayers thousands of dollars, and (c) broke the law by working without

a contract. The Press Release also demanded Plaintiff reimburse Hackensack a portion of his

fees. “[T]his statement was drafted and/or co-written by Defendant Swibinski and/or Martinez

on behalf of [the Candidate Defendants].” It was republished on InsiderNJ.com on April 7. TAC

99 43 & 49. And (4) “Mayor Labrosse issued a campaign ad in the form of a letter, which was

issued by ‘Mayor John Labrosse and the Labrosse Team,” discussed in more detail below.

(“Campaign Letter”). TAC § 52.

While Plaintiff attributes this conduct to the Mayor, that is not enough to constitute action

under color of law. “[U]under ‘color’ of law means under ‘pretense’ of law. Thus acts of officers

in the ambit of their personal pursuits are plainly excluded.” Screws v. United States, 325 US.

91, 111 (1945). Liability “attaches only to those wrongdoers who carry a badge of authority of

a State and represent it in some capacity, whether they act in accordance with their authority or

misuse it.” NCAA v. Tarkanian, 488 U.S. 179, 191 (1988) (cleaned up). “The traditional

definition of acting under color of state law requires that the defendant... exercised power

possessed by virtue of state law and made possible only because the wrongdoer is clothed with

the authority of state law.” West v. Atkins, 487 U.S. 42, 49 (1988) (citation omitted).

a. Affiliation, Public Support, and OPRA Request

The first two sets of allegations do not constitute action “under color of law.” Nothing in

the vague allegation of Labrosse’s “affiliation” and his team’s public support of the Candidate

Defendants constitutes official conduct, despite their government positions. So to with the Open

Records Act request. Even crediting the vague allegation that Martinez filed the request “on

behalf of” the other individual Defendants, including Labrosse, that conduct was purely private.

If the Defendants used the power of the mayor’s office to find information, that may be official

conduct. But here, Martinez exercised the power available to all citizens to request government

records. See N.J.S. § 47:1A-1 et seq. Exercising that power was not official conduct. See Boyce

v. Eggers, 513 F. Supp. 2d 139, 144 (D.N.J. 2007) (finding no merit to argument that public

employee filing police report was action under color of law).

b. Press Release and Campaign Letter

As to the Press Release and Campaign Letter, the issue is whether political messages

issued by Labrosse and his team constitute official conduct. Plaintiff points out that Labrosse

was not up for election at the time of its release. Thus, he “was not ‘wearing the hat’ of a

candidate when he made his public statements.” Opp. at 15. Further, the Press Release “was

drafted and/or co-written by Defendant Swibinski and/or Martinez.” TAC 4 44. “Martinez was

one Labrosse’ campaign operatives, and Swibinski was the City of Hackensack’s spokesperson

in the Labrosse administration and vice president of the city’s public relations firm.” TAC □ 37.

The Campaign Letter is labeled as “An Important Message from Mayor John Labrosse and the

Labrosse Team.” See Visconi Cert. Ex. A, ECF No. 64-2 (incorporated by reference in the

Complaint). Another page includes “An Important Message About Our Schools from Mayor

Labrosse and His Team,” and the statement is signed by “Mayor John Labrosse and The

Labrosse Team.” Jd. However, the Campaign Letter makes clear it was “[p]aid for by Election

Fund of [the Candidate Defendants]” and “was NOT printed or mailed at taxpayer expense.” Jd.

These facts (and reasonable inferences drawn therefrom) are insufficient to constitute

official conduct. The fact that Labrosse and Swibinski held official positions is insufficient. See

Screws, 325 U.S. at 111. In endorsing candidates and publishing information regarding Salkin’s

performance, Labrosse and Swibinski were not acting as government officials, but as politically:

active citizens. Indeed, the Campaign Letter explicitly states it was not paid for by taxpayers,

but the election fund for the Candidate Defendants. And nothing indicates the Press Release

came from the mayor’s official office either. Further, the fact that Labrosse was not up for

reelection and mentioned his title does not mandate a contrary conclusion. It is entirely typical

for politicians to endorse candidates or publicly advocate against officials, even when the

politician herself is not up for election. Such conduct is not “official.” The inclusion of

Labrosse’s title, while somewhat relevant, is insufficient to convert private politicking into

official conduct. The opposite conclusion would impermissibly stretch the definition of “under

color of law.” The power Labrosse exercised was the same power available to all citizens—

firmly and publicly proclaiming a political preference. Cf West, 487 U.S. at 49 (“acting under

color of state law requires that the defendant... exercised power possessed by virtue of state

law and made possible only because the wrongdoer is clothed with the authority of state law”).

Other than conclusory recitals of elements, see TAC { 54, Plaintiff does not allege any facts from

which the court could reasonably conclude that issuing the Press Release or Campaign Letter

constituted official action (e.g., Swibinski or Martinez billed the government to draft them,

government printers were used, or resources from the mayor’s office were otherwise utilized).

Because none of the pre-election conduct was done “under color of law,” it cannot form

the basis of a § 1983 action. Therefore, the Court turns to Plaintiff’s second theory.

3. Refusal to Issue a Resolution Re-Appointing Plaintiff

Plaintiff's argues that “upon becoming board members, [the Candidate Defendants]

refused to issue a resolution re-appointing Plaintiff, thus indicating that Plaintiff would be

terminated and giving him no choice but to resign.” Opp. at 14; TAC 4 60.” Plaintiff asserts his

First Amendment rights were violated because the Candidate Defendants took this action

because of his protected speech and political affiliations (perceived and actual). TAC {{ 69-73.

The Court need not decide whether the refusal to reappoint a school board attorney constitutes a

federal rights violation because, assuming it does, the Candidate Defendants are protected by

qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 231 (2009).

Qualified immunity protects government officials from damages for conduct that does

not violate clearly established statutory or constitutional rights of which a reasonable person

would have known. Sauers v. Borough of Nesquehoning, 905 F.3d 711, 716 (3d Cir. 2018)

(citation omitted). “Clearly established law should not be defined at a high level of generality.”

White v. Pauly, 137 S. Ct. 548, 552 (2017). Instead, it “must be particularized to the facts of the

case.” Id.

Here, Plaintiff alleges violations of his broad rights to free speech and association. But

Plaintiff fails to point to clearly established law that prohibits the conduct at issue here—school

board members declining to add a resolution to an agenda reappointing the board attorney. See

Sauers, 905 F.3d at 719 (“It is only when both the theory of liability and its application to the

established facts are sufficiently plain that the legal question of liability is beyond legitimate

debate and a plaintiff can defeat a qualified immunity defense.”). Even if the Court were to

generalize the right more broadly and assume the Candidate Defendants’ conduct was akin to

affirmatively firing Plaintiff, qualified immunity would still attach. In three instances, the Third

Circuit has held that firing a municipal attorney for political reasons was permissible. See Ness

v. Marshall, 660 F.2d 517, 518 (3d Cir. 1981); Mummau v. Ranck, 687 F.2d 9 (3d Cir. 1982);

Wetzel v. Tucker, 139 F.3d 380 (3d Cir. 1998). In the most recent case, the court found

significant the broad discretionary powers of the defendant hospital authority board—not just

the plaintiff-attorney’s own powers. Wetzel, 139 F.3d at 385. With respect to board decisions

like pursuing an affirmative action policy or funding a new facility, “[t]he advice of counsel as

to the legality of these actions, and whether or not it was worthwhile to defend them in litigation

should that become necessary, would inform these policy decisions in a very direct way.” Jd. at

385-86. Thus, the defendants permissibly relieved the attorney plaintiff due to political

differences. Jd. at 385-86. Accordingly, relevant precedent actually supports the permissibility

of the Candidate Defendants’ conduct. More importantly, it precludes a finding that reasonable

board members would have known their conduct violated Plaintiff's rights. See Sawers, 905

F.3d at 716. Accordingly, the Candidate Defendants are entitled to qualified immunity and

Count One is DISMISSED.

2 School board business by the elected Candidate Defendants certainly constitutes official action, but

Plaintiff does not allege any involvement in that action by Labrosse, Swibinski, or Martinez. Therefore,

the Section 1983 claims (Count One) against them are DISMISSED for lack of official action.

B. New Jersey Civil Rights Action (Count Two)

Plaintiff's CRA claim (Count Two) is based on the same facts as his Section 1983 claim.

TAC 80. Claims under the two statutes are interpreted analogously. Pettit v. New Jersey, 09-

cv-3735, 2011 WL 1325614, at *3 (D.N.J. Mar. 30, 2011) (listing cases). Accordingly, for the

reasons set forth above, Plaintiff's CRA claims are DISMISSED.

C. Prejudice

Defendants seek dismissal of Counts One and Two with prejudice. Plaintiff did not

explicitly seek leave to amend. See Opp. Regardless, unless the Court “finds that amendment

would be inequitable or futile, the court must inform [P]laintiff that he or she has leave to amend

the complaint within a set period of time.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 245 (3d

Cir. 2008). Generally, amendment is permitted absent “undue delay, bad faith or dilatory

motive... , repeated failure to cure deficiencies by amendments previously allowed... , [or]

futility of amendment.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159,

174 (3d Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

Here, Plaintiff failed to cure deficiencies by amendments previously. See June Opp.

(granting leave to amend and pointing to failure to allege state action). In any event, amendment

would be futile because (a) the pre-election conduct does not constitute action under color of

state law and (b) the post-election conduct did not violate a clearly established right defined at

the appropriate level of generality. Accordingly, leave to amend is DENIED.

IV. CONCLUSION

For the reasons set forth above, Defendants’ motions, ECF Nos. 62-64, 66, are

GRANTED and Counts One and Two are DISMISSED WITH PREJUDICE. An appropriate

order follows.

*

ee

Date: December /, 2019 ILLIAMA MARTINI, U.S.D.J.