EL BOMANI v. BARAKA

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

MUNIRAH EL BOMANI,

Civ. No. 20-655 (KM) (ESK)

Plaintiff,

OPINION

v.

RAS J. BARAKA, et al.

Defendants.

KEVIN MCNULTY, U.S.D.J.:

On December 30, 2020, this Court dismissed the Complaint of pro se

plaintiff Munirah El Bomani for failure to state a claim upon which relief may

be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 8; DE 9.)1

The dismissal was entered without prejudice to the filing, within 30 days, of a

proposed Amended Complaint. (DE 9.) Ms. El Bomani filed an Amended

Complaint (DE 10) on February 8, 2021.2 The City of Newark, incorrectly

pleaded as the Newark Municipal Council, Business Administrator Eric

Pennington, and Councilman Luis Quintana (collectively “defendants”) moved

to dismiss. (DE 11.) Defendants submit, inter alia, that the Amended Complaint

fails to correct the errors of the initial Complaint. Because I agree, I will grant

defendants’ motion (DE 11).

1 Citations to the record will be abbreviated as follows. Citations to page numbers

refer to the page numbers assigned through the Electronic Court Filing system, unless

otherwise indicated:

“DE” = Docket entry number in this case.

“Compl.” = Plaintiff’s initial Complaint (DE 1)

“Am. Compl.” = Plaintiff’s Amended Complaint (DE 10)

2 In light of the plaintiff’s pro se status, I will excuse the filing a week past the

deadline set by the Court.

I. Summary

a. Facts and Procedural History

Ms. El Bomani, a Newark resident, initiated this action on January 17,

2020 against Ras J. Baraka, the Mayor of Newark; Amiri Baraka, Jr., Chief of

Staff; Eric Pennington, Business Administrator; Luis Quintana, Councilman At

Large; the Newark Police Department; the Newark Municipal Council; Marcus

Thomas, Police Officer; and Kenyatta Stewart, the Corporation Counsel.

(Compl. at 1-3.) As detailed in the Court’s December 30 Opinion, the initial

Complaint alleged the following:

[O]n September 18, 2019, sometime between 7:00 p.m. and

7:30 p.m., Ms. El Bomani was listed to speak at the “Hearing of

Citizens” portion of a City Council meeting. (Compl. at 4) “Just

before” her time to speak, Ms. El Bomani was “issued” a letter

informing her that she was banned from speaking for sixty days

based on an incident that had occurred the previous day,

September 17, 2019. (Compl. at 4) Ms. El Bomani alleges that,

while she asked the Council why she was being prevented from

speaking during a public meeting and why she was forced to leave

a public building, “Councilman Luis Quintana called the police

officers assigned to the council chambers to remove [her] from the

podium and council chambers.” (Compl. at 4) Police Officer Marcus

Thomas then allegedly “grabbed” Ms. El Bomani, “manhandled”

her, hit her jaw, and removed her from the City Council’s

chambers. (Compl. at 4)

Plaintiff alleges that as a result of Defendants’ conduct, she

suffered injury to her constitutional rights, as well as physical

injuries and emotional harm. (Compl. at 4) She seeks a declaratory

judgment that Defendants violated her rights under the First

Amendment to the United States Constitution, injunctive relief in

the form of an order prohibiting Defendants from violating her

rights in the future, and pain and suffering damages in the

amount of $250,000. (Compl. at 5)

(DE 8 at 2.)

Defendants filed a to dismiss the Complaint on June 24, 2020. (DE 7.)

Although the motion was unopposed, under Stackhouse v. Mazurkiewicz, 951

F.2d 29, 30 (3d Cir. 1991), I nevertheless analyzed the merits of the motion,

ultimately concluding that the Complaint failed to state a claim. (DE 8 at 8.)

Although the Complaint did not explicitly identify a cause of action, I

construed it as asserting a First Amendment “right to speak” claim under 42

U.S.C. § 1983, as well as state law tort claims of assault or negligence. (Id. at

4.) At the outset, I dismissed the claims against Mayor Baraka, Chief Baraka,

Pennington, Ambrose, and Stewart because, as to them, the Complaint alleged

no facts at all. (Id.) I then dismissed the claims against the Newark Police

Department and Newark Municipal Counsel because, as mere arms of

Newark’s city government, those entities lack the independent capacity to sue

or be sued. (Id. at 4-5.)

Regarding the claims against Councilman Quintana, I found that the

Complaint failed to allege facts sufficient to state a First Amendment claim. (Id.

at 6.) In particular, I noted that “Ms. El Bomani did not allege facts relating to

the nature of the relevant speech and did not allege that the Municipal Council

failed to justify their actions to the standard required for the given forum.” (Id.);

Graw v. Fantasky, 68 F. App'x 378, 381 (3d Cir. 2003) (citing Cornelius v.

NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788. 797 (1985)) (“For a right to

speak claim, a plaintiff must allege that: (1) the speech was protected by the

First Amendment and (2) the government excluded the plaintiff's speech in a

public or non-public forum without justifying its actions to the standard

required for the particular forum.”). Because the initial Complaint similarly

failed to assert allegations regarding the nature of the speech or the

justifications for preventing her speech, I dismissed the First Amendment claim

against Police Office Thomas as well. (DE 8 at 7 n.3.)

Finally, to the extent that the Complaint raised tort claims, I found that

they were barred by the New Jersey Torts Claim Act (“NJTCA”), which requires

a claimant to file a notice of tort claim with a public entity within ninety days of

accrual of the claim. (Id. at 7 (citing N.J. Stat. Ann. § 59:8-8(a).) The City of

Newark submitted a certification confirming that the required notice of claim

had not been filed, and Ms. El Bomani did not allege that she filed the required

notice of claim with the City. (Id.) Therefore, under the NJTCA, I dismissed the

tort claims against Newark and its employees. (Id.) The dismissal was entered

without prejudice to amendment.

b. The Amended Complaint

On February 8, 2021, Ms. El Bomani filed an Amended Complaint

asserting claims against only three of the previously-named defendants:

Councilman Quintana, the Newark Municipal Council,3 and Business

Administrator Pennington. (Am. Compl. at 1.) The Amended Complaint

contains only one additional factual allegation: that Ms. El Bomani was

banned, without a hearing, from speaking for sixty days due to “a comment”

she made at a prior meeting, on September 17, 2019. (Am. Compl. at 3.) It was

based on that ban, the Amended Complaint asserts, that Ms. El Bomani was

prevented from speaking at the second meeting, in violation of her rights to due

process and freedom of speech. (Id.) I interpret this as a constitutional claim

under 42 US.C. § 1983; the Amended Complaint does not appear to reassert

any tort claims.

Defendants now move (DE 11) to dismiss the Amended Complaint for

failure to state a claim. Defendants submitted a statement (DE 11-4) that no

brief is necessary pursuant to Local Civil Rule 7.1 (d)(4) because, defendants

contend, the Amended Complaint has not rectified any of the legal deficiencies

identified in the December 30 Opinion. Ms. El Bomani submitted an opposition

(DE 14) which reasserts the same factual allegation in the Amended Complaint.

Finally, defendants submitted a statement (DE 13) that no reply brief is

necessary because the opposition responded to none of the points raised in

defendants’ moving papers or the Court’s December 30 Opinion.

3 I note, again, that the correct defendant is the City of Newark, not the Council,

which is not an independent entity that can sue or be sued. (See DE 8 at 4-5.)

II. Legal Standard

In considering a motion to dismiss a pro se complaint, a court must bear

in mind that pro se complaints are held to less stringent standards than formal

pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 93 (2007);

Haines v. Kerner, 404 U.S. 519, 520-21(1972); Alston v. Parker, 363 F.3d 229,

234 (3d Cir. 2004) (“Courts are to construe complaints so as to do substantial

justice . . . keeping in mind that pro se complaints in particular should be

construed liberally.” (citations omitted)). This does not, however, absolve a pro

se plaintiff of the need to adhere to the Federal Rules of Civil Procedure. See,

e.g., Fantone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015) (“[A] pro se complaint .

. . must be held to ‘less stringent standards than formal pleadings drafted by

lawyers;’ . . . but we nonetheless review the pleading to ensure that it has

‘sufficient factual matter; accepted as true; to state a claim to relief that is

plausible on [its] face.’”).

Federal Rule of Civil Procedure 8(a) does not require that a complaint

contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation to

provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Phillips v. Cnty. of

Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Rule 8 “requires a

‘showing’ rather than a blanket assertion of an entitlement to relief.” (citation

omitted)). Thus, the complaint’s factual allegations must be sufficient to raise a

plaintiff’s right to relief above a speculative level, so that a claim is “plausible

on its face.” Twombly, 550 U.S. at 570; see also West Run Student Hous.

Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013). That

facial-plausibility standard is met “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin

to a ‘probability requirement’ . . . it asks for more than a sheer possibility.” Id.

Rule 12(b)(6) provides for the dismissal of a complaint if it fails to state a claim

upon which relief can be granted. The defendant, as the moving party, bears

the burden of showing that no claim has been stated. Animal Science Products,

Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011). For the

purposes of a motion to dismiss, the facts alleged in the complaint are accepted

as true and all reasonable inferences are drawn in favor of the plaintiff. New

Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New

Jersey, 760 F.3d 297, 302 (3d Cir. 2014).

III. Discussion

I first dismiss all claims against Business Administrator Pennington,

because, as to him, the Amended Complaint alleges no facts at all. As to the

remaining defendants, I find that the Amended Complaint fails to establish

entitlement to relief for either a free speech claim or a due process claim.

a. Free Speech Claim

Regarding Ms. El Bomani’s free speech claim, the Amended Complaint

fails to rectify the deficiencies of the initial Complaint. The only new

information the Court now has is that Ms. El Bomani was issued a suspension

for having made a “comment” at the September 17, 2019 meeting. 4 As

4 Defendants have attached the letter banning Ms. El Bomani from speaking at

Municipal Council meetings for sixty days. (DE 11-3, Exhibit A.) When deciding a

motion to dismiss, a court typically does not consider matters outside the pleadings.

However, a court may consider documents that are “integral to or explicitly relied upon

in the complaint” or any “undisputedly authentic document that a defendant attaches

as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the

document[.]” In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir.

1999) (emphasis and citations omitted); see In re Asbestos Prods. Liab. Litig. (No. VI),

822 F.3d 125, 133 n.7 (3d Cir. 2016); Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir.

2014).

Here, the suspension letter is explicitly relied upon in the Amended Complaint.

(See Am. Compl. at 3.) The letter does not, however, remedy the failures of either

complaint. It describes the basis of the 60-day ban as follows:

[A]s a result of a certain incident which occurred on September 17, 2019

at City Hall during the Public Hearing portion of the scheduled Pre-

Meeting Conference of the Municipal Council, wherein the said Munirah

El-Bomani, in addressing the Municipal Council acted in a disruptive

explained in this Court’s prior opinion, to establish a right-to-speak claim, a

plaintiff must allege that: “(1) the speech was protected by the First

Amendment and (2) the government excluded the plaintiff's speech in a public

or non-public forum without justifying its actions to the standard required for

the particular forum.” Graw, 68 F. App'x at 381. The Amended Complaint

provides none of that information.

In the December 30 Opinion, I gave Ms. El Bomani guidance on the type

of factual assertions needed to survive a motion to dismiss:

The complaint does not allege that, for example, that the

Councilman objected to the content of Ms. El Bomani’s speech and

therefore cut her off. Rather, she was prevented from speaking as

the result of a sixty-day suspension, based on an undescribed

incident the previous day. The complaint alleges that Ms. El

Bomani “was issued a letter” informing her that she “was banned

from speaking for 60 days for something that took place on

September 17th, 2019.” Whether Ms. El Bomani’s conduct on

September 17th would have justified the suspension does not

appear from the complaint. See generally Eichenlaub v. Twp. of

Indiana, 385 F.3d 274, 281 (3d Cir. 2004) (disruptive speaker may

be removed from public meeting consistent with First Amendment).

The complaint does not allege what occurred on that date or state

any basis for concluding that the suspension was improper. All

that appears from this complaint is that Ms. El Bomani was under

a sixty-day suspension and attempted to violate it. There may be

more to the story, but if so, it has not been alleged.

(DE 8 at 6-7.)

Whether the 60-day ban was invalid still cannot be gleaned from the

Amended Complaint. Again, Ms. El Bomani has failed to provide any

information about the sixty-day suspension other than that it was based on a

“comment.” (Am. Compl. at 3.) Based on the allegations in the Amended

Complaint, the Court does not know the content or nature of Ms. El Bomani’s

manner, directing personal, and malicious remarks at the Business

Administrator Mr. Eric S. Pennington.

(DE 11-3 at 2.) Aside from characterizing the acts or remarks as disruptive, personal,

and malicious, the letter does not summarize or describe them.

speech. Moreover, Ms. El Bomani again fails to allege facts from which the

court could conclude that the Municipal Council, despite the stated basis for

the ban in its letter, in fact failed to justify their actions in relation to the

standard required for the given forum. Therefore, her free speech claim must

be dismissed. See Graw, 68 F. App'x at 381.

b. Due Process Claim

The Amended Complaint alleges that Ms. El Bomani’s due process rights

were violated due to her sixty-day speaking ban that was issued allegedly

without a hearing. (Am. Compl. at 3.) Although a pro se plaintiff's pleadings are

liberally construed, the plaintiff must still do more than provide a “blanket

assertion” that she is entitled to relief. Phillips, 515 F.3d at 232. Rule 8 of the

Federal Rules of Civil Procedure requires at least a “short and plain statement

of the claim.” Fed. R. Civ. P. 8(a)(2). Here, Ms. El Bomani provides no more

than a bald assertion that defendants violated her due process rights. Indeed,

without more information, it is unclear what substantive or procedural due

process violations Ms. El Bomani is alleging occurred. (See generally Am.

Compl.) For that reason, the due process claim must be dismissed as well.5

5 Defendants submit that the free speech and due process claims against

Councilman Quintana must fail because he is protected by legislative immunity.

“[M]embers of a municipal council acting in a legislative capacity are immune from

damage suits under section 1983.” Aitchison v. Raffiani, 708 F.2d 96, 99 (3d Cir.

1983). Whether a council member acts in a legislative capacity turns on the nature of

the act rather than the nature of the actor’s office or the actor’s intent. Larsen v.

Senate of the Commonwealth of Pennsylvania, 152 F.3d 240, 249 (3d Cir. 1998) (citing

Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998)). “To be legislative, the act must be (1)

substantively legislative, such as ‘policy-making of a general purpose’ or ‘line-drawing’;

and (2) procedurally legislative, such that it is ‘passed by means of established

legislative procedures.’” Carver v. Foerster, 102 F.3d 96, 100 (3d Cir. 1996). While the

“the number of persons affected by a given decision might be an important factor in

the two-part immunity analysis, it [i]s not dispositive.” Id.

In the December 30 Opinion, I explained that, based on the allegations in the

Complaint, it was unclear whether Councilman Quintana was acting in a legislative

capacity. (DE 8 at 5-6 n.2.) Now, defendants submit that the suspension letter

sufficiently demonstrates that legislative immunity applies:

IV. Conclusion

For the reasons set forth above, I will grant defendants’ motion (DE 11) to

dismiss the Amended Complaint. Because plaintiff has failed to correct the

errors of the initial Complaint or indicate any willingness or ability to do so,

this dismissal will now be entered with prejudice.

An appropriate order follows.

Dated: June 9, 2021

/s/ Kevin McNulty

____________________________________

Kevin McNulty

United States District Judge

[T]he Letter notes that (1) “Munirah El Bomani, in addressing the

Municipal Council acted in a disruptive manner, directing personal, and

malicious remarks at the Business Administrator Mr. Eric S.

Pennington”; (2) “the, Rules of Procedure for the Municipal Council, Rule

XVIII, Manner of Addressing the Municipal Council, provides that the

‘Presiding Officer may interrupt or terminate any individual's speaking

privilege if these rules are violated and further may prohibit requests

from such individual to register and speak at further Municipal Council

meetings in accordance with Rule XVl[I] Addressing the Municipal

Council: ‘Time Limit’”; and (3) that Councilman Quintana enforced the

above-referenced Municipal Council Rules in his capacity as Council

Vice-President.

(DE 11-4 at 2-3.)

Assuming, without ruling, that Councilman Quintana was acting in a legislative

capacity, absolute immunity applies to actions brought against the individual

defendants in their individual capacities. Aitchison, 708 F.2d at 100. However,

legislative immunity does not bar Section 1983 suits against municipal members in

their official capacities. This is because Section 1983 claims against city council

members in their official capacities are “in all respects other than name, to be treated

as a suit against the entity.” Bass v. Attardi, 868 F.2d 45, 51 (3d Cir. 1989) (citing

Kentucky v. Graham, 473 U.S. 159, 166(1985)). Here, the Amended Complaint lists

“Luis Quintana, Councilman at large” as the defendant—seemingly, though not

clearly, in his official capacity. (Am. Compl. at 3.) Nevertheless, because I dismiss the

Amended Complaint for failure to state a claim, it is unnecessary to address

defendants’ legislative immunity arguments.