# LIVESAY v. MURPHY

> District Court, D. New Jersey · September 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10273994

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** September 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10273994

## How later opinions describe it (automated extraction)

- finding the plaintiff lacked standing to enjoin police use of chokeholds absent sufficient likelihood that he would be wrongfully choked by police in the future
- finding the case moot where the statute challenged had been repealed and new legislation enacted

## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHRISTINE LIVESAY and NICHOLAS
DeSIMONE,

Plaintiffs, Civil Action No. 20-17947 (ZNQ) (TJB)

v. OPINION

PHILIP DUNTON MURPHY,

Defendant.

QURAISHI, District Judge
THIS MATTER comes before the Court upon a Motion to Dismiss (“Motion) filed by
Philip Dunton Murphy (“Defendant”). (ECF No. 11.) Christine Livesay and Nicholas DeSimone
(“Plaintiffs”) opposed the Motion, (“Opposition, ECF No. 15), to which Defendant replied,
(“Reply,” ECF No. 18.) The Court has carefully considered the parties’ submissions and decides
the Motion without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil
Rule 78.1. For the reasons set forth below, the Court will GRANT Defendant’s Motion to Dismiss.
I. BACKGROUND AND PROCEDURAL HISTORY
On December 4, 2020, Plaintiffs began the instant action by filing their Complaint with the
Court. (“Complaint,” ECF No. 3.) The Complaint alleges the unconstitutionality of Governor
Murphy’s Executive Orders (“EO”) 103, 104, 107, and 163. Namely, Plaintiffs allege that due to
the EOs 103, 104, and 107, Plaintiff’s pain management company “One Touch” was ordered to
temporarily close in light of the unprecedented COVID-19 pandemic. (Compl. ¶ A1.) According
to Plaintiff Livesay, by closing her business, “Governor Murphy violated the same [EO] for not
implementing the compensation program mandated by the act” (id) because her business was an
essential business to her clients. (Id. ¶ A3.) Plaintiff Livesay further alleges that, due to EO 104,
her children’s school’s requirement of virtual learning caused “a huge mental, noticeable

disturbance in the previous [sic] adapted routine of [her] children.” (Id. ¶ A4.) Plaintiff Livesay’s
children not being in school has affected them academically and has exacerbated their preexisting
health issues. (Id. ¶ A5.) Lastly, Plaintiff Livesay claims that due to EO 163, the requirements of
social distancing and masking has caused her mental, emotional, and physical traumatization (Id.
¶ A7) and further caused her to face verbal, unlawful attacks. (Id. ¶ A16.) Similarly, Plaintiff
DeSimone claims that EO 163 infringes on his “First Amendment religious rights” and also
subjected him to unlawful harassment. (Id. ¶ B1–B5.) The Complaint further demands monetary
damages, removal of Governor Murphy from office, recission of all “unconstitutional” EOs,
prevention of future “unconstitutional” EOs, and that Governor Murphy be charged with domestic
terrorism, child endangerment, and reckless endangerment of the general public. (Id. at 11.)

Defendant moves to dismiss Plaintiffs’ Complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). Namely, Defendant argues that Plaintiffs lack Article III
standing “because they cannot demonstrate an injury in fact” (Moving Brief at 8, ECF No. 12-1)
because they can neither establish a particularized injury (id.) nor demonstrate a likelihood of
redressability if granted a favorable decision. (Id. at 11.) Defendant next argues that Plaintiffs
have failed to state any due process claim. (Id. at 13.) The procedural due process claims fail
because the EO was a rule of general applicability and because Plaintiffs failed to avail themselves
of the remedies provided to them. (Id. at 15.) Plaintiffs’ substantive due process claims fail
because “neither the right to operate a business nor the property interest in a business license are
‘fundamental’ rights or property interests protected by substantive due process.” (Id. at 17.)
Defendant also argues that masking requirements do not violate the Fourteenth Amendment right
to bodily integrity because they bear a rational relationship to a legitimate state objective. (Id. at
19.) Plaintiffs also fail to state a claim under the takings clause because the closure of Plaintiff

Livesay’s business was simply “a valid exercise of the broad police power bestowed upon state
officials to prevent detrimental public harms by restricting Plaintiff’s use of her property during a
public health crisis. (Id. at 22.) Next, Defendant contends that Plaintiffs’ 42 U.S.C. § 1985
conspiracy count fails to state a claim because they fail to adequately allege a conspiracy motivated
by racial or class-based discriminatory animus. (Id. at 29.) Defendant lastly argues that qualified
immunity precludes Plaintiffs’ claims against the Governor (id. at 30) and “Plaintiffs’ claims under
federal statutory titles 4, 18, and 26 must be dismissed because there is no right to a private cause
of action under these statutes.” (Id. at 37.)
In opposition, Plaintiffs argue that they do have Article III standing because of the financial
losses associated with the closing of Plaintiff Livesay’s business, the emotional and physical harm

her children suffered with virtual education, and the physical harm suffered from mandatory
masking. (Opposition at 3.) As for the due process claims, Plaintiffs allege that they were unaware
of the remedies available to them and infringed on their liberties. (Id. at 5.) Plaintiffs next argue
that their right to bodily integrity was violated because the government should not have the power
to force individuals to wear masks. (Id. at 6.) Furthermore, the temporary closure of Plaintiff
Livesay’s business was a taking by the government because it was an abuse of power by the
government outside of the state’s police powers. (Id. at 8–9.) Plaintiffs subsequently claim that
they do have sufficient grounds to bring a claim under 42 U.S.C. § 1985(3) because Governor
Murphy conspired with the New Jersey Department of Health Commissioner to implement covid
restrictions based solely on the Commissioner’s recommendations. (Id. at 10.) Ultimately,
Governor Murphy’s EOs violated Plaintiffs’ due process rights effectively destroying his qualified
immunity. (Id. at 11.)
On March 29, 2021, Defendant replied to Plaintiffs’ opposition. (ECF No. 18.) Defendant
initially reiterates that Plaintiffs fail to establish Article III standing because “they have not established

an injury-in-fact or even an injury capable of being redressed by this Court.” (Reply at 2.) “Plaintiffs
also have failed to demonstrate that by closing non-essential businesses and requiring face coverings
in public, Governor Murphy violated the Fourteenth Amendment.” (Id. at 4.) Namely, “Plaintiffs’
procedural due process claim is insufficient because the EOs at issue have general applicability, which
does not give rise to the entitlement of procedural due process, and because Plaintiffs have failed to
avail themselves of adequate procedural remedies.” Id. Moreover, Plaintiffs’ substantive due process
claims fail because “neither the right to operate a business nor the property interest in a business license
are ‘fundamental’ rights or property interests protected by substantive due process.” Id. at 5. Plaintiffs’
Fourteenth Amendment claims further fail because a presumption of validity attaches to every
legislative enactment and “so long as ‘the means chosen bear a rational relationship to a legitimate
state objective and are not arbitrary, capricious, or unreasonable,’ courts will sustain a government
regulation against a substantive due process challenge.” Id. at 6. On a similar note, Plaintiffs’ equal
protection rights have not been violated because courts apply a rational basis review to business
closures and under that standard, Plaintiff Livesay’s business closure was rationally related to a
legitimate state interest in light of the COVID-19 pandemic. Id. at 8. Defendant subsequently argues
that Plaintiffs fail to state a claim under the Takings Clause because there was no physical taking with
respect to Plaintiff Livesay’s business, “the challenged laws were a mere exercise of the police power

to protect the public health, and the laws did not destroy all economically viable use of the property.”
Id. at 9. Plaintiffs’ 42 U.S.C. § 1985 claim fails because they failed to show “in their Complaint that
some individual and the Governor ‘colluded with the requisite racial or . . . otherwise class-based,
invidiously discriminatory animus’ as is necessary to state a claim” under § 1985(3). Id. at 10–11.
Lastly, Defendant argues that Plaintiffs do not meet their burden to overcome the qualified immunity
defense on the grounds that the defendant did not violate a statutory or constitutional right. Id. at 11.
II. LEGAL STANDARD
Article III, Section 2 of the Constitution limits the “judicial power” of the United States to

the resolution of certain “cases” and “controversies.” Valley Forge Christian Coll. v. Americans
United for Separation of Church & State, 454 U.S. 464, 471 (1982). “The requirements of Art. III
are not satisfied merely because a party requests a court of the United States to declare its legal
rights, and has couched that request . . . in terms that have a familiar ring to those trained in the
legal process.” Id. The “case” or “controversy” requirement is enforced through a number of
justiciability doctrines, which include standing, ripeness, mootness, the political-question doctrine,
and the prohibition on advisory opinions. Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131,
137 (3d Cir. 2009).
A case becomes moot when the issues presented are no longer “live” or the parties lack a
legally cognizable interest in the outcome. A.S. v. Harrison Twp. Bd. of Educ., 66 F. Supp. 3d 539,

545 (D.N.J. 2014) (citing Powell v. McCormack, 395 U.S. 486, 496 (1969)). In other words, “when
it is no longer possible for this court to grant the relief requested, a case is moot and this court
lacks jurisdiction to hear it.” Lazur v. Moser, Civ. No. 21-57, 2022 WL 2719473, at *1 (W.D. Pa.
Mar. 11, 2022). The mootness doctrine requires that “an actual controversy [is] extant at all stages
of review, not merely at the time the complaint is filed.” Steffel v. Thompson, 415 U.S. 452, 459
n.10 (1974). “‘A case might become moot if subsequent events made it absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur.’” Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 189 (2000) (quoting U.S. v. Concentrated Phosphate
Export Assn., 393 U.S. 199, 203 (1968)). Mootness may not become an issue until the case has
been brought and litigated. Id. at 191.
A federal court must address the question of mootness, even though it was not raised by
the parties, because it implicates Article III jurisdiction, and thus, a Court may raise sua sponte the

issue of whether a suit presents a live case or controversy. New Jersey Tpk. Auth. v. Jersey Cent.
Power & Light, 772 F.2d 25, 30 (3d Cir. 1985); Luppino v. Mercedes Benz USA, 718 F. App'x
143, 147 (3d Cir. 2017) (explaining that federal courts have a duty to determine mootness or
abstract propositions, or to declare legal principles which cannot affect the ultimate issue in the
case) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)); Just In Time Chem. Sales & Mktg., Inc.
v. Ironshore Specialty Ins. Co., Civ. No. 13-7127, 2014 WL 3784264, at *1 (D.N.J. July 31, 2014)
(“A court may sua sponte dismiss a case on grounds of mootness”).
Similarly, under Fed. R. Civ. P. 12(b)(1), a court must grant a motion to dismiss if it lacks
subject matter jurisdiction to hear a claim. See Fed. R. Civ. P. 12(b)(1). “A motion to dismiss for
want of standing is . . . properly brought pursuant to Rule 12(b)(1), because standing is a

jurisdictional matter.” Behar v. Murphy, Civ. No. 20-5206, 2020 WL 6375707 at *2 (D.N.J. Oct.
30, 2020); see also St. Thomas - St. John Hotel & Tourism Ass'n v. U.S. Virgin Islands, 218 F.3d
232, 240 (3d Cir. 2000) (“The issue of standing is jurisdictional.”). “On a motion to dismiss for
lack of standing, the plaintiff bears the burden of establishing the elements of standing, and each
element must be supported in the same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence required at the successive stages of
the litigation.” Ballentine v. United States, Civ. No. 99-130, 2006 WL3298270 at *3–4 (D.V.I.
Sep. 21, 2006) (internal quotation marks omitted). To show standing, a plaintiff must establish:
“(1) an injury-in-fact, (2) a sufficient causal connection between the injury and the conduct
complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.” In
re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 272 (3d Cir. 2016) (quoting Finkelman v.
Nat'l Football League, 810 F.3d 187, 193 (3d Cir. 2016)).
III. DISCUSSION

A. MOOTNESS
The Complaint alleges that EOs 103, 104, 107, and 163 caused significant harm to both
Plaintiffs. Namely, Plaintiffs allege that the protective measures ordered by the EOs—social
distancing, face coverings, and virtual schooling—caused Plaintiffs mental, emotional, and
physical trauma. (Compl. ¶¶ A1, B1–B5.) In his Motion, Defendant does not address the mootness
of Plaintiffs’ claims. At this juncture, the Court raises, sua sponte, the issue of mootness in light
of the fact that the complained of EOs and safety measures have been rescinded since Plaintiffs
filed their Complaint. With respect to the issues of social distancing, mandatory masking, and
virtual learning, the Court finds that these issues are moot for the reasons set forth below.
Courts in this district have already held that challenges to the Governor’s EOs become

moot after the challenged EO is rescinded. Behar, 2020 WL 6375707 at *3. Due to a decrease
of reported COVID-19 cases, Governor Murphy issued various executive orders that lifted some
of the restrictions on businesses and individuals previously imposed. The Court takes judicial
notice that EO 153 rescinded the stay-at-home order imposed by EO 107, and EO 154 allowed the
resumption of personal care service facilities starting on June 22, 2020. See N.J. Exec. Order No.
153 (June 9, 2020), https://nj.gov/infobank/eo/056murphy/pdf/EO-153.pdf; See also Arterbridge
v. Wayfair, LLC, Civ. No. 21-13306, 2022 WL 577956, at *6 n.5 (D.N.J. Feb. 25, 2022) (noting
that a court may take judicial notice of a public document generally known within the jurisdiction
which is not subject to reasonable dispute with respect to its accuracy or its source’s accuracy);
Mader v. Union Twp., Civ. No. 20-01138, 2021 WL 3852072, at *9 n.4 (W.D. Pa. Aug. 27, 2021),
reconsideration denied, Civ. No. 20-01138, 2021 WL 4805487 (W.D. Pa. Oct. 14, 2021) (“Courts
may take judicial notice of a governor’s proclamations.”) Once a defendant terminates the alleged
unlawful conduct, “[t]he raison d'etre for the injunction no longer exists.” Id. (quoting Black

United Fund of N.J., Inc. v. Kean, 763 F.2d 156, 160 (3d Cir. 1985) (finding the case moot where
the statute challenged had been repealed and new legislation enacted)). The same applies for EOs
103, 104, and 163 in this case. The Court takes further judicial notice that on August 13, 2020,
Governor Murphy signed EO 175 which re-opened New Jersey school for in-person learning, on
May 17, 2021, EO 241 eliminated the mask requirement in outdoor public places, on May 24,
2021, EO 242 lifted major COVID-19 restrictions, on May 26, 2021, EO 243 fully rescinded EO
107, and on June 4, 2021, EO 244 ended the public health emergency established in EO 103. As
the EOs at issue have been rescinded, no meaningful relief may be provided by the Court.
“Furthermore, the allegedly wrongful behavior cannot reasonably be expected to recur.”
Behar, 2020 WL 6375707 at *3. “This criterion has been interpreted to require more than

speculation that a challenged activity will be resumed.” Thompson v. United States Dep’t of Labor,
813 F.2d 48, 51 (3d Cir. 1987) (citing Preiser v. Newkirk, 422 U.S. 395, 403 (1975)). Moreover,
whether the change was in response to the litigation “weighs against mootness.” Fields v. Speaker
of the Pa. House of Representatives, 936 F.3d 142, 161 (3d Cir. 2019).
Here, Governor Murphy has already issued numerous EOs easing restrictions in New
Jersey, and the change in policy is a clear response to the decreased number of COVID-19 cases
in New Jersey since EOs 103, 104, 107, and 163 were issued, not in response to Plaintiffs’ suit or
for the purpose of evading the Court’s review. See N.J. Exec. Order No. 153 (June 9, 2020),
https://nj.gov/infobank/eo/056murphy/pdf/EO-153.pdf (“[I]t it is appropriate to lift the Order
requiring New Jersey residents to remain home or at their place of residence”). Indeed, the text of
EO 153, which rescinded EO 107, explicitly states that the reopening process began because of
the “decrease in the rate of reported new cases of COVID-19 in New Jersey, including a reduction
in the total number of individuals being admitted to hospitals for COVID-19.” N.J. Exec. Order

No. 153 (June 9, 2020), https://nj.gov/infobank/eo/056murphy/pdf/EO-153.pdf. “The statistics
also confirm that Governor Murphy’s reduction in restrictions was attributed to the decreasing
number of COVID-19 positive cases, and clearly, not this litigation or some other related reasons.”
Behar, 2020 WL 6375707 at *3. On March 21, 2020, when Governor Murphy issued EO 107,
New Jersey reported 1,787 new cases according to the New Jersey Department of Health. Id. New
cases in New Jersey peaked on April 1, 2020, with a reported 4,846 positive COVID-19 tests. Id.
On September 30, 2020, 432 new cases were reported. Id.
Even if COVID-19 infection rates rise, it is speculative that Defendant would implement
new restrictions that would allegedly injure Plaintiffs. Id. Indeed, Plaintiffs provide “no evidence
to suggest that Governor Murphy intends to implement new restrictions imminently, let alone

restrictions akin to the ones alleged in this action to have caused Plaintiffs’ harm.” Id. More
importantly, Plaintiffs’ alleged harm from wearing a mask is specifically addressed and remedied
by the challenged EO, which granted citizens a medical exemption if “the face covering would
inhibit that individual’s health.” N.J. Exec. Order No. 163 (June 9, 2020),
https://nj.gov/infobank/eo/056murphy/pdf/EO-163.pdf. As such, the alleged injuries are based on
nothing more than Plaintiffs’ disagreement with the State’s public health policies. Behar, 2020
WL 6375707 at *3 (dismissing case with prejudice because Plaintiff’s challenges to Governor
Murphy’s EOs were moot).
B. STANDING
Defendants argue that Plaintiffs lack standing because they cannot establish an injury-in-
fact. In response, Plaintiffs contend that they have demonstrated an injury-in-fact because mask
wearing restricted their oxygen, virtual learning led Plaintiff Livesay’s children to endure mental

and emotional harm, and the closure of Plaintiff Livesay’s business led to severe financial harm.
(Opposition at 3.) However, given Plaintiffs’ failure to provide any evidence of a specific and
concrete injury-in-fact beyond self-serving allegations, Plaintiffs’ claims with respect to their
challenges on social distancing, mandatory masking, and virtual learning must also be dismissed
for lack of Article III standing.
To allege injury-in-fact, “a plaintiff must claim the invasion of a concrete and
particularized legally protected interest resulting in harm that is actual or imminent, not conjectural
or hypothetical.” Nickelodeon, 827 F.3d at 272 (quoting Finkelman, 810 F.3d at 193) (internal
quotations omitted). A harm is “concrete” only “if it is ‘de facto’; that is, it must actually exist”—
it cannot be merely “abstract.” Id. (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016)). To

satisfy the injury-in-fact requirement, the injury must be “particularized,” such that it affects the
plaintiff in a “personal and individual way.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.
1 (1992). The Supreme Court has emphasized that the injury must also be “concrete in both a
qualitative and temporal sense”; in other words, the “complainant must allege an injury to himself
that is distinct and palpable, as opposed to merely [a]bstract, and the alleged harm must be actual
or imminent, not conjectural or hypothetical.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)
(internal quotations and citations omitted).
To that end, allegations of a potential future injury, or the mere possibility of a future injury,
will not establish standing. See id. at 158; Reilly v. Ceridian Corp., 664 F.3d 38, 42 (3d Cir. 2011)
(“Allegations of ‘possible future injury’ are not sufficient to satisfy Article III”). Given that
injunctions regulate future conduct, a party seeking prospective injunctive relief, as is the case
here, must demonstrate a “real and immediate” threat of future harm—not merely a speculative or
hypothetical threat of future harm. City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (finding

the plaintiff lacked standing to enjoin police use of chokeholds absent sufficient likelihood that he
would be wrongfully choked by police in the future); Doe v. National Bd. of Med. Exam’rs (“Doe
II”), 210 F. App’x 157, 159–60 (3d Cir.2006) (finding plaintiff lacked standing to seek injunction
barring disclosure of disabled status on medical examination scores, absent realistic, non-
hypothetical fear that state licensing board would discriminate against him in the future due to
disclosure). “Past illegal conduct is insufficient to warrant injunctive relief unless it is
accompanied by ‘continuing, present adverse effects.’” Doe II, 210 F. App’x at 160 (citing Lyons,
461 U.S. at 102). “Likewise, intentions to return to the source of the illegal conduct ‘some day’—
without any description of concrete plans, or indeed even any specification of when the some day
will be—do not support a finding of the requisite actual or imminent injury.” Dempsey v. Pistol

Pete's Beef N Beer, LLC, Civ. No. 08-5454, 2009 WL 3584597 at *4 (D.N.J. Oct. 26, 2009)
(internal quotations omitted) (citing Lujan, 504 U.S. at 564, where affiant lacked standing to seek
injunction protecting endangered animals, because she merely professed intent to “some day”
return to observe them, but had no “concrete plans” to do so).
Here, Plaintiffs alleges no imminent or impending injury to themselves. Rather, they
merely ask the Court to enjoin all future unconstitutional EOs and to further rescind EOs that have
already been rescinded. (Compl. at 11.) This request for injunction of future, hypothetical harm
is insufficient to establish Article III standing. Whitmore, 495 U.S. at 155.
Both Plaintiffs also lack standing with regard to their challenges to the social distancing,
mandatory masking, and virtual learning EOs because they have not caused a particularized harm
against the plaintiffs. Freedom from Religion Found. Inc., 832 F.3d at 478 (“standing requires that
the plaintiff has a concrete grievance that is particularized to him and that the plaintiff is not one

simply expressing generalized disagreement with activities in a place in which he has no
connection”) (emphasis added); see also Kaetz v. United States, Civ. No. 19-cv-8100, 2020 WL
7351219, at *8 (D.N.J. Dec. 15, 2020) (holding that Plaintiff lacked standing to challenge
Governor Murphy’s EOs because he did “not set forth facts identifying a cognizable personal
injury”). First, courts in this circuit have already held that plaintiffs challenging mask mandates
lack standing because these challenges are simply generalized grievances irremediable by the
courts. See, e.g., Parker v. Wolf, Civ. No. 20-1601, 2020 WL 7295831 (M.D. Pa Dec. 11, 2020).
Plaintiffs further fail to meet the standing requirements because they do not allege that the
challenged EOs harmed them in a personal and individual way relative to other state residents.
Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 140, 145-46 (2011) (holding that

“generalized grievances about the conduct of government,” and a complaint that merely “disagrees
with” a state’s law is insufficient to establish an injury-in-fact). Ultimately, the alleged injuries
with respect to the EOs regarding the social distancing, mandatory masking, and virtual learning
are not redressable upon a favorable decision because the challenged EOs have been rescinded
since Plaintiffs filed their complaint. See infra.
The Court does find, however, that Plaintiff Livesay has standing with respect to her
monetary damages claim regarding the closure of her business. (Compl. ¶ A1.) The Court will
consider next whether this claim for monetary damages against Governor Murphy is barred by
qualified immunity.
C. QUALIFIED IMMUNITY
Qualified immunity is an affirmative defense that shields government officials who
perform discretionary functions “from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity shields federal
and state officials from money damages unless a plaintiff pleads facts showing (1) that the official
violated a statutory or constitutional right, and (2) that the right was “clearly established” at the
time of the challenged conduct. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Defining the
constitutional right at issue for qualified immunity purposes is critical in assessing whether or not
that right was “clearly established.” Anderson v. Creighton, 483 U.S. 635, 639 (1987). “Indeed,
qualified immunity would be a worthless defense if a plaintiff could simply invoke a broad
constitutional right—as here, ‘due process’—that a defendant supposedly violated to overcome
the hurdle.” Michaels v. New Jersey, 50 F. Supp. 2d 353, 363 (D.N.J. 1999). Once a defendant
raises the defense of qualified immunity, it is the plaintiff's burden to delineate the constitutional

right that was violated and show that it was clearly established at the time of the conduct at issue.
Id. at 362.
Governor Murphy is a state official sued in his individual capacity. (Compl. at 2.) The
Court finds that he is entitled to qualified immunity on two grounds. First, Plaintiffs failed to meet
their burden to delineate the constitutional right that was violated. Id. In their Opposition,
Plaintiffs simply reiterate that the constitutional right that was violated was their right to due
process. (Opposition at 11.) Courts in this district have held that asserting a broad constitutional
right such as “due process” is insufficient to overcome the hurdle of defining the constitutional
right that was violated. Michaels, 50 F. Supp. 2d at 363. Second, the EOs, even those that
temporarily closed down non-essential businesses, were not unconstitutional. The Supreme Court
has recognized that “the power of the States to enact and enforce quarantine laws for the safety
and the protection of the health of their inhabitants . . . is beyond question.” Compagnie Francaise
de Navigation a Vapeur v. La. State Bd. of Health, 186 U.S. 380, 387 (1902). Consequently, many

district courts around the country have upheld similar business-related EOs such as those
challenged here.1 Accordingly, the Court concludes that Governor Murphy is entitled to qualified
immunity from Plaintiffs’ claim for money damages. Kaul v. Christie, 372 F. Supp. 3d 206, 243
(D.N.J. 2019).
D. FEDERAL STATUTORY TITLE CLAIMS
Plaintiffs further allege claims against Defendant under federal statutory titles 4, 18, and
26. (Compl. at 19.) None of these claims, however, provide for a private cause of action. Without
a private cause of action, Plaintiffs do not have standing to bring these claims. Polaroid Corp. v.
Disney, 862 F.2d 987, 993 (3d Cir. 1988) (“If a private right of action exists in favor of a party,
standing follows as a matter of course”).

Specifically, Plaintiffs allege claims under “4 U.S.C. § 101, Oath by members of
legislatures and officers” as a cause of action. However, oath requirements for certain state
officials under 4 U.S.C. §§ 101 and 102 do not create a private cause of action. See Zinnia Chen
v. Lester, 364 F. App’x 531 (11th Cir.), cert. denied, 562 U.S. 839 (2010). As Plaintiffs are private
citizens, they are barred from bringing a cause of action under 4 U.S.C. § 101.

1 See, e.g., League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, 814 Fed. Appx. 125; Bimber’s Delwood
v. James, Civ. No. 20-1043, 2021 WL 235889 (W.D.N.Y. Jan. 25, 2021); Big Tyme Invs., L.L.C. v. Edwards, Civ. No.
20-30526, 2021 WL 118628 (5th Cir. 2021); Local Spot, Inc. v. Cooper, Civ. No. 20-421, 2020 WL 7554247 (M.D.
Tenn. Dec. 21, 2020); Stewart v. Justice, Civ. No. 20-611, 2020 WL 6937725 (S.D.W.V. Nov. 24, 2020); Antietam
Battlefield KOA v. Hogan, Civ. No. 20-1130, 2020 WL 6777590 (D. Md. Nov. 18, 2020); Columbus Ale House v.
Cuomo, Civ. No. 20-4291, 2020 WL 6507326 (E.D.N.Y. Nov. 5, 2020); Bill & Ted’s Riviera v. Cuomo, Civ. No. 20-
1001, 2020 WL 6043991 (N.D.N.Y. Oct. 13, 2020); Open Our Oregon v. Brown, Civ. No. 20-773, 2020 WL 5371915
(D. Or. Sept. 8, 2020).
Plaintiffs attempt to assert multiple causes of action under Title 18: 18 U.S.C. §§ 241, 242,
1038, 1001, 1503, 1512, and 2071. However, these are criminal statutes that do not allow
independent civil claims for the simple reason that private citizens do not have “authority to initiate
a federal criminal prosecution; that power is vested exclusively in the executive branch.” United

States v. Nixon, 418 U.S. 683, 693 (1974). Similarly, 26 U.S.C. § 7214 is another criminal statute
that is not actionable through a private claim. See Andrews v. Heaton, 483 F.3d 1070, 1076 (10th
Cir. 2007); Hanna v. Home Ins. Co., 281 F.2d 298, 303 (5th Cir. 1960) (federal criminal statutes
do not provide a basis for civil liability).
In light of the fact that all claims under Titles 4, 18, and 26 of the United States Code do
not permit private causes of action, the Court will dismiss these claims.
IV. CONCLUSION
For the reasons stated above, the Court will GRANT Defendant’s Motion to Dismiss.
Given the nature of Plaintiffs’ claims and the bases for the Court’s dismissal of those claims, the
Court further finds that any attempt to amend the Complaint would be futile. Accordingly, the

dismissal will be with prejudice. An appropriate Order will follow.

Date: September 30, 2022
s/ Zahid N. Quraishi
ZAHID N. QURAISHI
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10273994. Public record. Not legal advice.