VAN DUYNE v. KESSELMAN

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

EMILY VAN DUYNE,

1:19-cv-21091-NLH-KMW

Plaintiff,

OPINION

v.

STOCKTON UNIVERSITY,

Defendant.

APPEARANCES:

PATRICIA A. BARASCH

SCHALL & BARASCH, LLC

MOORESTOWN OFFICE CENTER

110 MARTER AVENUE

SUITE 302

MOORESTOWN, NJ 08057-3124

On behalf of Plaintiff

JACLYN MICHELLE FREY

OFFICE OF THE ATTORNEY GENERAL

25 MARKET STREET

PO BOX 112

TRENTON, NJ 08625-0112

On behalf of Defendants

HILLMAN, District Judge

This matter concerns claims by a Stockton University

(“Stockton”) professor that her First Amendment rights have been

violated for speaking out about sexual assaults on the Stockton

campus. Before the Court is Defendant’s motion to dismiss, and

Plaintiff’s motion for leave to file an amended complaint. For

the reasons expressed below, Defendant’s motion will be denied

and Plaintiff’s motion will be granted.

BACKGROUND

Plaintiff, Emily Van Duyne, is a tenured professor at

Stockton in Galloway, New Jersey. Plaintiff is an Assistant

Professor of Writing and First-Year Studies, with

responsibilities to coordinate the First-Year Writing Program

and serve as an affiliated faculty member in the Women’s, Gender

and Sexuality Studies (“WGSS”) minor. Plaintiff’s original

complaint asserts one count against Stockton for its violation

of her First Amendment right to free speech, which claim is

brought pursuant to 42 U.S.C. § 1983. Plaintiff claims that she

has suffered numerous retaliatory actions by Stockton for

speaking out on issues relating to sexual assault on Stockton’s

campus. Plaintiff seeks prospective injunctive relief against

Stockton in various ways, see Compl., Docket No. 1 at 9-10, as

well as attorney’s fees and costs.

Pending before the Court is Stockton’s motion to dismiss

Plaintiff’s complaint. Stockton’s primary basis for the

dismissal of Plaintiff’s complaint is that because Stockton is

an arm of the State of New Jersey, Stockton is not a “person”

amenable to suit under § 1983, and Plaintiff’s complaint is

barred by the Eleventh Amendment’s sovereign immunity provided

to the states. Stockton further argues that Plaintiff has

insufficiently pleaded her First Amendment claims.

Conceding Stockton’s position as to its status as an arm of

the state and immunity to suit,1 Plaintiff filed a motion for

leave to file an amended complaint. Plaintiff’s proposed

amended complaint substitutes Stockton as the defendant with

three Stockton employees: Dr. Harvey Kesselman, President of

Stockton, Dr. Susan Davenport, Stockton’s Executive Vice

President/Chief of Staff, and Dr. Lori A. Vermeulen, Stockton’s

then Provost and Vice President for Academic Affairs.

Plaintiff’s proposed amended complaint asserts her First

Amendment violation count against these parties in their

official capacities for which she seeks prospective injunctive

relief. Stockton has opposed Plaintiff’s motion to amend,

arguing that it would be futile to permit Plaintiff to file her

amended complaint because her claims remain insufficiently

pleaded.

DISCUSSION

A. Subject matter jurisdiction

Plaintiff has brought her claims pursuant to 42 U.S.C. §

1983. This Court has jurisdiction over Plaintiff’s claims under

28 U.S.C. § 1331.

1 As discussed below, whether Stockton is considered an arm of

the state has not been definitely determined by any court, and

this Court may resolve the parties’ current motions without

resolving that issue.

B. Standard for Motion to Dismiss & Motion to Amend

It is well settled that a pleading is sufficient if it

contains “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

Following the Twombly/Iqbal standard, the Third Circuit has

instructed a two-part analysis in reviewing a complaint under

Rule 12(b)(6). First, the factual and legal elements of a claim

should be separated; a district court must accept all of the

complaint's well-pleaded facts as true, but may disregard any

legal conclusions. Fowler v. UPMC Shadyside, 578 F.3d 203, 210

(3d Cir. 2009) (citing Iqbal, 129 S. Ct. at 1950). Second, a

district court must then determine whether the facts alleged in

the complaint are sufficient to show that the plaintiff has a

“‘plausible claim for relief.’” Id. (quoting Iqbal, 129 S. Ct.

at 1950). A complaint must do more than allege the plaintiff's

entitlement to relief. Id.; see also Phillips v. Cnty. of

Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).

Amendments to pleadings are governed by Federal Civil

Procedure Rule 15, which provides that the Court “should freely

give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).

The Third Circuit has shown a strong liberality in allowing

amendments under Rule 15 in order to ensure that claims will be

decided on the merits rather than on technicalities. Dole v.

Arco Chemical Co., 921 F.2d 484, 487 (3d Cir. 1990); Bechtel v.

Robinson, 886 F.2d 644, 652 (3d Cir. 1989). An amendment must

be permitted in the absence of undue delay, bad faith, dilatory

motive, unfair prejudice, or futility of amendment. Grayson v.

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing

Foman v. Davis, 371 U.S. 178, 182 (1962)). In civil rights

cases, “district courts must offer amendment--irrespective of

whether it is requested--when dismissing a case for failure to

state a claim unless doing so would be inequitable or futile.”

Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482

F.3d 247, 251 (3d Cir. 2007).

Assessing a proposed amended complaint for futility is the

same as applying the Rule 12(b)(6) standard. Brookman v.

Township of Hillside, 2018 WL 4350278, at *2 (D.N.J. 2018)

(citing In re NAHC, Inc. Sec. Litig., 306 F.3d 1314, 1332 (3d

Cir. 2002) (“An amendment would be futile when ‘the complaint,

as amended, would fail to state a claim upon which relief could

be granted.’”)).

C. Analysis

To resolve Stockton’s motion to dismiss and Plaintiff’s

motion to amend, the Court must determine whether it would be

futile for Plaintiff’s proposed amended complaint to proceed

when considering two issues: (1) whether the substitution of

Stockton with three Stockton employees presents a viable First

Amendment claim under § 1983, and if so, (2) whether the

substance of Plaintiff’s First Amendment claim is sufficiently

pleaded.

(1) Plaintiff’s proposed amendment to substitute

defendants

“The Supreme Court has made clear that [under the Eleventh]

Amendment, ‘an unconsenting State is immune from suits brought

in federal courts by her own citizens as well as by citizens of

another State.’” Christ the King Manor, Inc. v. Secretary U.S.

Dept. of Health and Human Services, 730 F.3d 291, 318 (3d Cir.

2013) (quoting Edelman v. Jordan, 415 U.S. 651, 663 (1974)

(citing Hans v. Louisiana, 134 U.S. 1, 10, (1890)). Unless

Congress has “specifically abrogated” the states’ sovereign

immunity or a state has unequivocally consented to suit in

federal court, a court lacks jurisdiction to grant relief in

such cases. Id. (citation omitted).

Governmental entities that are considered “arms of the

State” are also immune to suit in federal court, and “an entity

may be deemed an ‘arm of the state’ under the balancing test of

three co-equal factors” articulated in Fitchik v. New Jersey

Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989):

“(1) whether the state treasury is legally responsible for an

adverse judgment against the entity (the ‘funding factor’), (2)

whether the entity is treated as an arm of the State under state

case law and statutes (the ‘status factor’), and (3) whether,

based largely on the structure of its internal governance, the

entity retains significant autonomy from state control (the

‘autonomy factor’).”2 Jones v. Pi Kappa Alpha International

Fraternity, Inc., 765 F. App’x 802, 806 (3d Cir. 2019) (some

quotations omitted).

Although suits “against a non-consenting state are barred

by the Eleventh Amendment, a party can sue a state official

under Ex parte Young for acting in violation of a federal law or

the Constitution.” Constitution Party of Pennsylvania v.

Cortes, 824 F.3d 386, 396 (3d Cir. 2016) (citing Ex parte Young,

209 U.S. 123 (1908)). “Based on its landmark holding in Ex

Parte Young, the Supreme Court has permitted suits against state

officials that seek prospective relief to end an ongoing

violation of federal law.” Christ the King Manor, 730 F.3d at

318 (citing Pa. Fed'n of Sportsmen's Clubs, Inc. v. Hess, 297

F.3d 310, 323 (3d Cir. 2002)). “The theory behind Young is that

a state officer lacks the authority to enforce an

unconstitutional state enactment, and thus the officer is

stripped of his official or representative character and becomes

2 “Although the Fitchik factors were initially intended to

determine Eleventh Amendment immunity, our Court has extended

their use to § 1983.” McCauley v. University of the Virgin

Islands, 618 F.3d 232, 240 (3d Cir. 2010) (citing Callahan v.

City of Philadelphia, 207 F.3d 668, 670 (3d Cir. 2000)).

subject to the consequences of his individual conduct.

Plaintiffs can therefore bring suit against state officers, but

their remedies are limited to those that are designed to end a

continuing violation of federal law.” Id. (quoting Green v.

Mansour, 474 U.S. 64, 68 (1985)) (other citations omitted). A

plaintiff may not be awarded damages or other forms of

retroactive relief. Id. (citing Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 103 (1984)).

For claims brought against state actors under § 1983, a

plaintiff must assert her claims against a “person.” See 42

U.S.C. § 1983 (“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 . .

. “). “Neither a state nor its officials acting in their

official capacities are ‘persons’ under § 1983.” Will v. Mich.

Dep't of State Police, 491 U.S. 58, 71 (1989). A state

official, however, who is sued in his or her official capacity

for prospective injunctive relief is a person under § 1983

because “official-capacity actions for prospective relief are

not treated as actions against the State.” Id. at 71 n.10

(quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985); Ex

parte Young, 209 U.S. at 159–60)). Thus, a claim brought

against an employee of an entity that is an arm of the state in

his official capacity pursuant to § 1983 for violations of

federal law seeking solely prospective injunctive relief is

actionable.

Both Plaintiff and Stockton agree that Stockton is an arm

of the state. Based on that status, the three newly named

Stockton employees in Plaintiff’s proposed amended complaint are

state actors, and Plaintiff may only seek prospective injunctive

relief against them in their official capacities.3 These are the

precise claims that Plaintiff asserts in her proposed amended

complaint. Plaintiff alleges that (1) Stockton is an arm of the

state, about which Stockton agrees, (2) the three individual

defendants are state actors by virtue of their employment at

3 The issue of whether Stockton is considered an arm of the

state and therefore not a “person” under § 1983 has not been

expressly determined. The Third Circuit has applied the Fitchik

factors to Montclair State University and Ramapo College of New

Jersey, finding those two New Jersey post-secondary educational

institutions to be arms of the state. See Jones, 765 F. App’x

at 806; Maliandi v. Montclair State Univ., 845 F.3d 77, 83 (3d

Cir. 2016). Based on these two cases, Stockton argues that this

Court should similarly find that Stockton is an arm of the

state. As discussed herein, because the parties agree that

Stockton is an arm of the state, the Court does not need to

consider the issue at this time.

Stockton, (3) these individual employees in their official

capacities have violated and continue to violate federal law,

specifically the First Amendment, and (4) she is entitled to

prospective injunctive relief. Thus, the removal of Stockton as

a defendant and the inclusion of three individual Stockton

employees as defendants would not be futile in the context of

determining whether Plaintiff should be permitted to amend her

complaint.

Stockton has failed to present any viable argument as to

the futility of Plaintiff’s amended complaint.4 Without the

finding of futility, and in the absence of undue delay, bad

faith, dilatory motive, unfair prejudice, the Court must permit

Plaintiff to file her amended civil rights complaint.

(2) Substance of Plaintiff’s First Amendment claims

The Court has already concluded that amendment must be

afforded to Plaintiff, but the Court must still determine

whether her First Amendment violation claims in her proposed

amended complaint meet the proper pleading standards, or whether

4 In addition to its arm-of-the-state argument, Stockton argues

that Plaintiff’s amended complaint is futile because the

individual defendants are entitled to qualified immunity. That

argument is without merit. See Kentucky v. Graham, 473 U.S.

159, 166–67 (1985) (explaining that when it comes to defenses to

liability, an official in a personal-capacity action may be able

to assert personal immunity defenses, such as qualified

immunity, but in an official-capacity action, these defenses are

unavailable).

Plaintiff shall be afforded an additional opportunity to plead

them.5

“‘[A] State may not discharge an employee on a basis that

infringes that employee’s constitutionally protected interest in

freedom of speech.’” Munroe v. Central Bucks School Dist., 805

F.3d 454, 465 (3d Cir. 2015) (quoting Rankin v. McPherson, 483

U.S. 378, 383 (1987)). “Free and unhindered debate on matters

of public importance constitutes a core value of the First

Amendment,” and “public employees do not surrender all of their

First Amendment rights merely because of their employment

status.” Id. (citing Pickering v. Board of Ed. of Township High

School Dist. 205, Will Cty., 391 U.S. 563, 573 (1968); Garcetti

v. Ceballos, 547 U.S. 410, 417 (2006)).

5 The standard for proving a First Amendment violation claim

depends on whether a plaintiff is a public employee or a private

citizen. Falco v. Zimmer, 767 F. App’x 288, 298–99 (3d Cir.

2019). Both Plaintiff and Stockton cite to Thomas v.

Independence Tp., 463 F.3d 285, 296 (3d Cir. 2006) for the

standard applicable to Plaintiff’s claim, but that standard is

for a private citizen suit. See Thomas, 463 F.3d at 296

(explaining where a private citizen sues a public entity and

public employees for First Amendment violations, “in order to

plead a retaliation claim under the First Amendment, a plaintiff

must allege: (1) constitutionally protected conduct, (2)

retaliatory action sufficient to deter a person of ordinary

firmness from exercising his constitutional rights, and (3) a

causal link between the constitutionally protected conduct and

the retaliatory action.”). As noted by the Third Circuit,

however, “in their application, both iterations of the elements

boil down to similar core considerations.” Falco, 767 F. App’x

at 299.

The State, however, “‘has interests as an employer in

regulating the speech of its employees that differ significantly

from those it possesses in connection with regulation of the

speech of the citizenry in general.’” Id. (quoting Pickering,

391 U.S. at 568. Government employers, like their private

counterparts, still “need a significant degree of control over

their employees’ words and actions; without it, there would be

little chance for the efficient provision of public services.”

Id. (citation omitted). A public employer accordingly may

impose speech restrictions that are necessary for efficient and

effective operations. Id. (citation omitted). “Thus, ‘[s]o

long as employees are speaking as citizens about matters of

public concern, they must face only those speech restrictions

that are necessary for their employers to operate efficiently

and effectively.” Id. (quoting Garcetti, 547 U.S. at 419)

(other citations omitted).

“To establish a First Amendment retaliation claim, a public

employee must show that (1) his [activity] is protected by the

First Amendment and (2) the [activity] was a substantial or

motivating factor in the alleged retaliatory action, which, if

both are proved, shifts the burden to the employer to prove that

(3) the same action would have been taken even if the [activity]

had not occurred.” Falco v. Zimmer, 767 F. App’x 288, 299 (3d

Cir. 2019) (quoting Munroe, 805 F.3d at 466)) (other citation

omitted). “The first factor is a question of law; the second

factor is a question of fact.” Id. (quoting Gorum v. Sessoms,

561 F.3d 179, 184 (3d Cir. 2009)) (other citation omitted).

For the first factor, the First Amendment protects “a

public employee’s right to speak as a citizen addressing matters

of public concern.” Pickering, 391 U.S. at 568. Plaintiff’s

amended complaint alleges:

20. In the Spring of 2018, Plaintiff’s students

decided to do an activism project that focused on sexual

assault in fraternity life, with a focus on the

unaffiliated fraternities at Stockton.

21. Thereafter, during the summer of 2018, Plaintiff,

herself a rape survivor and advocate, was troubled by the

news that eight separate lawsuits had been filed against

Stockton alleging, among other things, that Stockton was

negligent in protecting students from sexual assaults that

had occurred at an unaffiliated fraternity on Stockton’s

campus.

22. On August 7, 2018, Defendant Kesselman published a

response to the assaults in an op-ed in The Press of

Atlantic City. Plaintiff found Defendant Kesselman’s

response lacking from the perspective of best practices for

advocating for sexual assault survivors and from the

perspective of someone who herself was a rape survivor.

23. In light of her concerns about Defendant

Kesselman’s op-ed article, Plaintiff wrote a very personal

reply, posting it on August 7, 2018 on her Facebook page,

where it was shared multiple times by other people in the

Stockton community.

24. In Plaintiff’s Facebook post responding to

Defendant Kesselman’s op-ed article, Plaintiff discussed

her own experiences as a rape survivor; her concern that

Defendant Kesselman’s article failed to appreciate the many

reasons why women may not report rape; the experiences

relayed to her by her students in regard to resisting

sexual assault; the effects of sexual trauma on women; and

the importance of holding responsible the perpetrators of

sexual crimes.

25. After Plaintiff posted her August 7, 2018 Facebook

response to Defendant Kesselman’s op-ed article, she was

contacted by reporter Joseph Hernandez from WHYY, who,

following his interview of Plaintiff and another female

professor at Stockton, published an article on September 4,

2018 (“Did Stockton U do enough to protect students from

members of rogue fraternity”), with the story also running

that same day on WHYY’s show Newsworks. The article cited

to a survey that Plaintiff’s students had conducted.

26. Also, in August 2018, to bring further attention

to issues of on-campus sexual assault, Plaintiff shared on

her Facebook page a newspaper article about the eight

lawsuits that had been filed against Stockton. The

newspaper article, which Plaintiff did not edit, highlight,

or change in any way, mentioned one of the alleged

assailants, Jesse Matsinger, by name.

27. In her Facebook post sharing the newspaper

article, Plaintiff made no reference to Matsinger—someone

she had never taught nor met and about whom she had no

knowledge other than what was reported by the newspaper in

its article.

28. Then, in early September 2018, Plaintiff assisted

in distributing to faculty and students T-shirts that were

printed with an anti-rape message. . . .

39. Concerned about the level of surveillance

Matsinger had displaying in compiling “evidence” against

her, Plaintiff proceeded to file a police report on May 1,

2019 about what she reasonably perceived to be his stalking

of her.

(Amend. Compl., Docket No. 12-1 at 6-8, 10.)

Plaintiff alleges that her efforts to raise awareness about

sexual assault on campus are protected by the Free Speech Clause

of the First Amendment, as applied to the States by virtue of

the Fourteenth Amendment, because the content, form, and context

of Plaintiff’s speech and conduct addressed matters of public

concern, her speech and actions were carried out in public

forums, including but not limited to Stockton’s campus and

social media platforms, and her speech and conduct were not made

pursuant to her official job duties such that they would warrant

discipline by Defendants. (Id. at 13.)

For the second factor, Plaintiff alleges that in order to

chill Plaintiff from exercising her right to speak out on issues

relating to sexual assault on campus, Defendants are engaging in

an ongoing retaliatory campaign of harassment against her that,

to date, has included the following actions:

(1) subjecting Plaintiff to a seven-month long, baseless

Title IX investigation;

(2) pressuring Plaintiff to step down from her role leading

Stockton’s “Culture of Respect” initiative, a campus-wide

anti-sexual violence initiative;

(3) falsely accusing Plaintiff of violating University

policies after Plaintiff helped distribute T-shirts printed

with an anti-rape message to students on campus;

(4) falsely accusing Plaintiff of responsibility for

commencing without approval a survey of students regarding

their experiences with on-campus sexual assault;

(5) implicitly threatening Plaintiff, at the time she was

granted tenure, that, unless she quieted her advocacy, her

future at Stockton might be imperiled;

(6) issuing a Title IX Final Determination Letter finding

that Plaintiff violated Section V of the Stockton

University Policy Prohibiting Sexual Misconduct and

Discrimination in the Academic/Educational Environment (I-

120), which was then recorded in Plaintiff’s personnel

file;

(7) issuing an Official Reprimand under Stockton University

Policy VI-13.2 (Employee Disciplinary Guidelines),

Procedure 1200, and related Policy I-120 (the Stockton

University Student Policy Prohibiting Sexual Misconduct and

Discrimination in the Academic/Educational Environment),

which was also recorded in Plaintiff’s personnel file;

(8) disciplining Plaintiff by requiring her to take, or

retake, three different trainings on Sexual

Harassment/Discrimination Prevention, Conflict Management,

and Retaliation Prevention (requiring her to take trainings

in “Sexual harassment/Discrimination” and “Conflict

Management” even though the Title IX investigation found

she had not engaged in sexual harassment or

discrimination); and

(9) disciplining Plaintiff by mandating that she be

assigned a coach for additional reinforcement and practical

application of the identified trainings.

(Id. at 2-3.)

Plaintiff’s allegations regarding the first factor of her

First Amendment violation claims, when accepted as true,

plausibly suggest that she engaged in First Amendment-protected

activities about an issue of public concern - namely, on-campus

sexual assault affecting the entire University community at

large. Similarly, Plaintiff’s allegations regarding the second

factor, when accepted as true, show that it is plausible

Stockton administrators have attempted and continue to attempt

to chill her speech concerning sexual assault on campus through

various forms of retaliatory actions.

Stockton argues that Plaintiff’s speech is not protected by

the First Amendment. Stockton, however, does not cite to any

authority to support its argument to show that Plaintiff’s

claims fail as a matter of law on the first prong. For the

second prong, Stockton argues that its actions were not First

Amendment retaliation and instead it “was simply performing a

required investigation rather than actively seeking to punish

Plaintiff as a result of her communications.” (Docket No. 8-1

at 29.) At the pleading stage, however, the Court accepts as

true Plaintiff’s allegations in her proposed amended complaint

that the individual Stockton employees took measures that were

motivated by her protected speech, and the determination of

whether those actions relative to her protected speech were

actually legitimate employment decisions is an issue of fact

that cannot be resolved at this pleading stage in the

case. Moreover, accepting that Plaintiff has properly pleaded

the first and second prong of her First Amendment violation

claims, the burden shifts to the defendants to show that they

would have taken the same actions even if Plaintiff had not

spoken out about sexual assault on campus as she did. That

third prong also cannot be decided in this procedural posture.

Plaintiff’s proposed amended complaint is sufficiently

pleaded under Twombly/Iqbal and Rule 8, and it shall be deemed

the operative complaint in this action.

CONCLUSION

For the reasons expressed above, Plaintiff’s motion for

leave to file an amended complaint will be granted. Stockton’s

motion to dismiss Plaintiff’s original complaint based on its

immunity-from-suit argument will be denied as moot. Stockton’s

motion to dismiss Plaintiff’s First Amendment claims as

insufficiently pleaded will be denied. Plaintiff’s proposed

amended complaint, Docket No. 12-1, shall be operative complaint

in this case.

An appropriate Order will be entered.

Date: October 20, 2020 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.