AUSTINO v. CITY OF VINELAND

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ADAM AUSTINO : CIVIL ACTION

:

v. :

:

CITY OF VINELAND, et al. : NO. 20-1151

:

MEMORANDUM

Bartle, J. September 14, 2020

Plaintiff Adam Austino has sued defendants City of

Vineland, as well as Anthony Fanucci, Gregory Pacitto, and the

Policemen’s Benevolent Association, Local 266 (“PBA”)

(“defendants”). Plaintiff alleges claims for relief for:

(1) violation of his First Amendment rights under 42 U.S.C.

§ 1983; and (2) violation of the New Jersey Conscientious

Employee Protection Act, N.J.S.A. § 34:19-1, et seq. (“CEPA”).

On September 2, 2020, this Court dismissed the PBA as a

defendant for plaintiff’s failure to state a claim against it

under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

See Doc. # 33. Before the court is the motion of the remaining

defendants City of Vineland, Anthony Fanucci, and Gregory

Pacitto likewise to dismiss the complaint for failure to state a

claim under Rule 12(b)(6).

I

The following facts are alleged in the complaint and

are taken as true for present purposes. Plaintiff is employed

by defendant City of Vineland as a Captain in its Police

Department (“VPD”). While working for VPD, plaintiff was also a

member of PBA, the union that represents all police personnel

employed at the VPD. Defendant Gregory Pacitto is a Sergeant

with the VPD and the former president of PBA. Defendant Anthony

Fanucci is the Mayor of Vineland.

Plaintiff avers that on “multiple occasions” he

reported to state and local authorities that defendants have

engaged in “corrupt actions.” As a result of his complaints, he

claims that defendants “conspired with one another” to retaliate

against him. Specifically, plaintiff alleges that defendants

retaliated against him because he complained to state and local

authorities that: (1) the executive board of the PBA and a VPD

Chief of Police had embezzled funds; (2) the VPD Street Crimes

Unit engaged in improper practices; (3) he was falsely accused

of wiretapping PBA members; (4) he was the improper target of an

internal affairs complaint; (5) the Chief of Police did not

impose strict enough discipline against certain officers who

conducted illegal body searches; (6) plaintiff was passed over

for a promotion on two separate occasions; (7) he was the target

of a draft complaint that certain members of the PBA wanted to

file but never did; (8) certain officers violated an order given

by plaintiff; and (9) the hiring of an outside attorney to look

into plaintiff’s complaints was improper.

II

When reviewing a motion to dismiss under

Rule 12(b)(6), the court “accept[s] as true all allegations in

plaintiff’s complaint as well as all reasonable inferences that

can be drawn from them, and [the court] construes them in a

light most favorable to the non-movant.” Tatis v. Allied

Interstate, LLC, 882 F.3d 422, 426 (3d Cir. 2018) (quoting

Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n. 27 (3d Cir.

2010)). “To survive a motion to dismiss, 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)). Although a complaint need

not contain detailed factual allegations, a plaintiff’s

obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a mere formulaic

recitation of the elements of a cause of action will not do.

Twombly, 550 U.S. at 555. Thus, the factual allegations must be

sufficient to raise a plaintiff’s right to relief above a

speculative level, such that the court may “draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (internal

citations and quotations omitted).

III

We first turn to plaintiff’s claims that defendants

violated his First Amendment rights under 42 U.S.C. § 1983,

which provides, in relevant part:

Every person who . . . 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 . . .

42 U.S.C. § 1983. Although its language is broad, Section

1983 “is not itself a source of substantive rights, but merely

provides a method for vindicating federal rights elsewhere

conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994)

(internal citations and quotations omitted).

Defendants argue that this count of the complaint

should be dismissed on a number of grounds. We focus on

defendant’s contention that the count is time-barred.1

1 Plaintiff contends that the statute of limitations is

irrelevant because he seeks “damages for the retaliation he

suffered in the [] years prior to the filing of this complaint”

and that the “evidentiary record that supports [his] claims of

retaliation go beyond the [] statute of limitations.” He

further states, without any citation or authority, that when

determining whether he suffered retaliation, the “whole record

needs to be reviewed” as the complaint “reveals ongoing

antagonism from the time he first reported corruption up to the

present.” This argument is without merit.

The statute of limitations for a Section 1983 claim is

“governed by the statute of limitations that applies to personal

injury tort claims in the state in which such a claim arises.”

Kach v. Hose, 589 F.3d 626, 639 (3d Cir. 2009). Under New

Jersey law, personal injury actions are subject to a two-year

limitations period. See N.J.S.A. § 2A:14–2(a). The Supreme

Court has explained that if a complaint on its face shows that

relief is time-barred, it should be dismissed for failure to

state a claim. Jones v. Bock, 549 U.S. 199, 215 (2007).

Here, the complaint was initially filed on February 3,

2020.2 It contains numerous specific allegations relating to the

exercise of plaintiff’s right to speak and to the subsequent

retaliation by defendants. The following events all clearly

occurred before February 4, 2018 so that any claim relating to

them is out of time:

(1) in 2012, plaintiff reported that the executive

board of the PBA was embezzling funds and in

response defendants obstructed plaintiff’s

investigation and subjected him to repeated

harassment and ridicule;

2 On March 17, 2020, pursuant to a Court Order, plaintiff

filed a redacted version of the original complaint. See

Doc. # 16.

(2) in 2015, plaintiff reported that the Chief of

Police had embezzled funds and in response he was

demoted to a less desirable tour of duty in the

Internal Affairs Unit (“IAU”);

(3) in December 2016, plaintiff undertook efforts to

stop abuses and violations committed by the

Street Crimes Unit of the VPD and in response,

defendants falsely accused plaintiff of

wiretapping PBA members and defendant Pacitto

filed a “critical incident report” against

plaintiff with the IAU;

(4) in December 2016, plaintiff requested the Chief

of Police to disband the Street Crimes Unit which

the Chief of Police ignored as retaliation, but

the Street Crimes Unit was later disbanded by the

next Chief of Police;

(5) on June 30, 2017, plaintiff filed a notification

that he believed he was being retaliated against

by defendants; and

(6) at the end of 2017, plaintiff investigated an

illegal body cavity search done by a fellow

officer and in response, defendants intervened to

lessen disciplinary actions against said officer

and in December 2017, defendants promoted the

officer who had done the illegal body search to

Captain over plaintiff.

Since these claims are all time-barred, we need not consider

whether they would otherwise survive a motion to dismiss.

Defendants next argue that any remaining allegations

of retaliation after February 3, 2018 against defendant PBA

should be dismissed “for the reasons stated in PBA’s motion to

dismiss.” As noted above, on September 2, 2020, this Court

dismissed the PBA as a defendant in this matter because the PBA,

as an union, is not a state actor, nor a “person” subject to

suit under 42 U.S.C. § 1983. See Doc. # 33. Thus, the

following allegations against the PBA for retaliation are no

longer part of this action:

(1) on November 28, 2018, the PBA “trumped false

allegations in a draft complaint naming

plaintiff” alleging he committed criminal acts,

but never filed the draft complaint in court;

(2) on May 22, 2019, the PBA filed a grievance

against plaintiff alleging that he changed the

schedule of an officer while the officer was on

military leave; and

(3) the PBA filed other retaliatory grievances

against plaintiff as a result of his reporting of

“corrupt actions” of defendants.

Plaintiff also alleges that he engaged in other

protected speech after February 3, 2018 for which he was the

subject of retaliation. The complaint describes this protected

speech after February 3, 2018 as follows:

(1) in August 2018, plaintiff filed a grievance

through the Vineland Police Captain’s Association

requesting that his CEPA complaint from 2017 be

investigated;

(2) between November 2018 and September 2019,

plaintiff reported to the Cumberland County

Prosecutor’s Office and the New Jersey Attorney

General’s Office that defendant City of Vineland

had engaged in insurance fraud;

(3) in May 2019, he filed another grievance with

defendant City of Vineland claiming that the PBA

grievance regarding military officer leave was

another form of retaliation; and

(4) in July 2019, plaintiff filed a separate

grievance with several parties alleging that an

investigation being conducted by a City-hired-

attorney into actions of plaintiff was in

violation of New Jersey law.

As a result of these grievances, plaintiff asserts that

defendants retaliated by not promoting him to Deputy Police

Chief in February 2019 and by hiring an outside attorney to

investigate him in May 2019.

Defendants argue that the two retaliatory allegations

against the City of Vineland, Anthony Fanucci, and Gregory

Pacitto after February 3, 2018 should be dismissed because: (1)

the federal court is not the forum to adjudicate the merits of

plaintiff’s labor grievance; and (2) an internal investigation,

in and of itself, does not qualify as adverse employment actions

for First Amendment purposes. We agree.

As to the failure to promote plaintiff, the Supreme

Court has stated that the First Amendment does not

“constitutionalize the employee grievance.” Connick v. Myers,

461 U.S. 138, 154 (1983). Indeed plaintiff concedes in his

complaint that “on February 14, 2019, [he] filed a grievance

regarding the denial of promotion with defendant [City of]

Vinland’s Personnel Director.” Plaintiff has utilized the

appropriate grievance process available to him to complain about

and resolve this employment dispute. The federal court is not

an appropriate vehicle to continue to litigate this issue under

Section 1983.

Finally plaintiff alleges that the outside attorney

investigation is an adverse employment action. Plaintiff is

incorrect. “Investigations, separate from any negative

consequences that may result from them, do not generally

constitute adverse employment actions.” Rosati v. Colello, 94

F. Supp. 3d 704, 714 (E.D. Pa. 2015). Significantly, plaintiff

does not aver that he has suffered any form of adverse

employment action as a result of the investigation.

Accordingly, we will dismiss the remaining two

retaliatory allegations against defendants for plaintiff’s

failure to state a claim under Rule 12(b)(6) of the Federal

Rules of Civil Procedure. As a result, we need not reach the

remaining arguments of the defendants.

IV

Plaintiff also asserts state law claims under CEPA.

This New Jersey statute provides, in relevant part:

An employer shall not take any retaliatory

action against an employee because the

employee . . . discloses, or threatens to

disclose to a supervisor or to a public body

an activity, policy or practice of the

employer, or another employer, with whom

there is a business relationship, that the

employee reasonably believes . . . is in

violation of a law . . .

N.J.S.A. § 34:19–3c.

This court declines to exercise its supplemental

jurisdiction over these claims now that all of plaintiff’s

asserted federal claims under Section 1983 are being dismissed.

When a court has done so, it has the discretion to decline to

exercise supplemental jurisdiction over any remaining state-law

claims. See 28 U.S.C. § 1367(c)(3). Where, as here, the

federal claims are dismissed at an early stage of litigation,

declination of supplemental jurisdiction is appropriate. See

Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009). Accordingly,

the CEPA state-law claim will be dismissed without prejudice to

plaintiff’s right to pursue said claims in the state court.