SALAAM v. SMALL

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHAMBERS OF MITCHELL H. COHEN BUILDING &

CHRISTINE P. O’HEARN U.S. COURTHOUSE

UNITED STATES DISTRICT JUDGE 4TH & COOPER STREETS

ROOM 6050

CAMDEN, NJ 08101

856-757-5167

October 31, 2022

VIA CM/ECF

Terrell A. Ratliff

Samuel Jackson

LENTO LAW GROUP, P.C.

New Jersey

3000 Atrium Way

Suite 200

Mt. Laurel, NJ 08054

Soleiman Khalil Raie

O'BRIEN, BELLAND & BUSHINSKY LLC

1526 Berlin Rd.

Cherry Hill, NJ 08003

Tracy Riley

LAW OFFICES OF RILEY & RILEY

Executive Court

2 Eves Drive

Suite 109

Marlton, NJ 08053

LETTER OPINION

Re: Nashid J. Salaam v. Marty Small, Sr., et al.

Civil Action No. 21-12191

Dear Counsel:

This matter comes before the Court on a Motion to Dismiss by Defendants Marty Small,

Sr., City of Atlantic City, and Alexis Waiters (collectively “Defendants”), (ECF No. 25), seeking

the dismissal of Counts III and IV of Plaintiffs’ Second Amended Complaint (“SAC”). The Court

did not hear oral argument pursuant to Local Rule 78.1. For the reasons that follow, Defendants’

Motion is GRANTED.

I. Factual Background and Procedural History

The Court relies on and incorporates by reference the factual background and procedural

history set forth in its prior decision in this matter, (ECF No. 22). On February 25, 2022, this Court

granted Defendants’ previous Motion to Dismiss, dismissing Counts IV, V, VI, and VII with

prejudice, and Counts III, VII, and VIII without prejudice. (Opinion, ECF No. 22). Plaintiff filed

a Second Amended Complaint (“SAC”) as to all Defendants on March 25, 2022. (ECF No. 24).

Defendants thereafter again moved to dismiss Counts III and IV of the SAC in the Motion now

before the Court. (Motion to Dismiss SAC, ECF No. 25-1 at 5).

II. Legal Standard

The Court relies on and incorporates by reference the extended legal standard set forth in

its prior decision in this matter, (ECF No. 22). In short, when considering a motion to dismiss a

complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6),

a court must accept all well-pled allegations in the complaint as true and view them in the light

most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). A pleading

is sufficient if it contains “a short and plain statement of the claim showing that the pleader is

entitled to relief.” F.R.C.P. 8(a)(2).

III. Discussion

Defendants argue that factual allegations in Counts III and IV in Plaintiff’s SAC fail to

remedy the deficiencies identified by this Court’s prior Opinion which led to dismissal and thus

they should again be dismissed. For the following reasons, the Court agrees and grants Defendants’

Motion to Dismiss.

A. Monell Claim (Count III)

This Court dismissed Plaintiff’s Monell claim without prejudice for failure to properly

allege (1) pattern of abuse and (2) that the Defendants were aware the alleged violations. (Opinion,

ECF No. 22 at 9, 11–12); see Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397,

410 (1997) (to rise to the level of deliberate indifference a plaintiff must show “(1) municipal

policymakers know that employees will confront a particular situation; (2) the situation involves a

difficult choice or a history of employees mishandling; and (3) the wrong choice by an employee

will frequently cause deprivation of constitutional rights.”). Plaintiff identifies three new

paragraphs added to the SAC that, he alleges, cure the deficiencies:

69. One example of this pattern of politically motivated constitutional violations by

Defendants, resulting from a failure of training was the matter of Callaway v. Small

(Doc. No.: 1:21-cv-12058). In that case, the plaintiff alleged that the City of

Atlantic City failed to properly train its employees to resist corrupt political

directives, and that the City’s failure to train directly resulted in a constitutional

violation taking place.

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70. This is proof not only that there was a pattern of such violations, but also that

the Defendants were aware of the pattern, as the case Callaway case [sic] and others

like it put the Defendants on notice of the inadequacy of their training on this issue.

In other words, the Calloway case and others like it are proof that Defendants knew

this was an ongoing problem caused by a failure to train employees to resist corrupt

orders (and not merely a problem isolated to and caused by Mayor Small), that they

would encounter again, yet to date, they have not addressed it.

71. This pattern of violations overcomes any presumption that City employees will

abide by their oaths and follow the law when facing these issues, because the facts

show that they do not.

(Pla. Br., ECF No. 28 at 1; SAC, ECF No. 24).

The Calloway case is not sufficient to show a pattern of violations or notice. Calloway

makes no mention of unlawful directives to hire or fire certain employees nor is it even an

employment case—the case arises out of a “screaming match between [the plaintiff] and his

political rival, [Defendant Small] on the streets of Atlantic City.” Callaway v. Small, No. 21-

12058, 2022 WL 970214, at *1 (D.N.J. Mar. 31, 2022). The plaintiff in Calloway alleged that

Atlantic City enabled the violation of his constitutional rights by failing to train its officers,

specifically pointing to one officer at the scene of the screaming match who “purposefully and

intentionally refuse[d] to enforce the law when a public official, [Mayor Small], violate[d] the

constitutional rights of members of the public.” (Calloway, 21-12058 Second Amended

Complaint, ECF No 25 ¶ 66(a)). This Court does not see how such factual allegations support

Plaintiff’s claim. The failure to train in Calloway involved security personnel, not Human

Resources, and threats of violence, not a failure to rehire. Thus, Plaintiff has again failed to plead

a pattern of violations to support his Monell claim.

Further, since the Calloway case was factually distinct, being served with the Calloway

complaint could in no way have put Defendants on notice of a deficiency in training that led to the

violations alleged in this case. In short, Plaintiff has failed to cure either deficiency in his Monell

claim and, therefore, the Court will dismiss Count III of the SAC.

B. Civil Conspiracy (Count IV)

This Court dismissed Plaintiff’s Civil Conspiracy claim without prejudice for failure to

properly plead “that Defendant Waiters understood, accepted, or agreed with the objective behind

the directive not to reinstate Plaintiff.” (Opinion, ECF No. 22); see Banco Popular N. Am. v. Gandi,

184 N.J. 161, 241 (2005) (the three elements of civil conspiracy are: “(1) a combination of two or

more persons; (2) a real agreement or confederation with a common design; and (3) existence of

an unlawful purpose, or of a lawful purpose to be achieved by unlawful means.”). Plaintiff

identifies the following paragraphs—some newly added to the SAC—that, he alleges, cure the

deficiencies:

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75. Specifically, Ms. Walters knew the purpose of the conspiracy and agreed to go

along with it.

76. Ms. Walters carried out Mr. Smalls’ orders knowing that it was politically

motivated.

77. Ms. Walters knew, understood and agreed with the objective behind Mr.

Small’s directive not to hire Plaintiff.

78. Defendant Alexis Waiters acted in furtherance of the conspiracy to [sic] by

complying with Defendant Small’s mandate, and refusing to allow Plaintiff to

return to work.

79. This refusal by Defendant Waiters evidenced a tacit agreement between

Defendant Marty Small, Sr. and himself to act in concert to violate the civil rights

of Plaintiff.

(Pla. Br., ECF No. 28 at 6; SAC, ECF No. 24).

While Plaintiff has alleged the required elements of civil conspiracy he has done so in

conclusory fashion with absolutely no factual support. “[A] formulaic recitation of a cause of

action’s elements” is not sufficient to survive a Rule 12(b)(6) attack. Bell Atl. Corp. v. Twombly,

550 U.S. 544, 545 (2007). “While ‘pure speculation’ is of course insufficient, ‘circumstantial

evidence will suffice’ to find the existence of a civil conspiracy.” Adkins v. Sogliuzzo, No. 09-

1123, 2013 WL 5468970, at *16 (D.N.J. Sept. 30, 2013) (quoting Board of Ed. of City of Asbury

Park v. Hoek, 38 N.J. 21, 238 (1962)). The Court finds Plaintiff’s new allegations to be mere

recitations of the legal elements of civil conspiracy based on pure speculation and, thus,

insufficient to prevail at this preliminary stage. See W.H. v. R.C., No. 19-13538, 2020 WL

1041390, at *10 (D.N.J. Mar. 4, 2020) (dismissing civil conspiracy claim where “[t]he Complaint

is completely absent any facts supporting Plaintiff’s allegations that the Moving Defendants and

their associates entered into “an agreement” to cover up sexual abuse”); A.C. v. Dwight-Englewood

Sch., No. 21-6376, 2022 WL 1184799, at *6 (D.N.J. Apr. 21, 2022) (dismissing civil conspiracy

claim where “Plaintiff alleges in a conclusory manner that the School and Brisk, ‘through the

agreement of themselves and their principals, agents, officers, management, staff, and others under

their control conspired and concerted among themselves to permit Van Amburg’s misconduct

continue.’”). This Court will therefore dismiss Count IV of Plaintiff’s SAC.

*******

Federal Rule of Civil Proceedure 15(a) requires that leave to amend “shall be freely given

when justice so requires.” See Foman v. Davis, 371 U.S. 178, 182 (1962). However, where

“plaintiff had already amended plaintiff’s complaint and yet failed to allege sufficient facts, the

courts may find that ‘[t]hree bites at the apple is enough,’ and conclude that it is proper to deny

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leave to replead.” Jn re Intelligroup Sec. Litig., 527 F. Supp. 2d 262, 379 (D.N.J. 2007) (citing

Salinger v. Projectavision, Inc., 972 F. Supp. 222, 236 (S.D.N.Y. 1997)).

Because Plaintiff was given an opportunity to cure the deficiencies in his Complaint but

failed to do so, this Court believes that amendment would be futile and dismisses Count III and

IV with prejudice.

IV. Conclusion

For the foregoing reasons, Defendants’ Motion to Dismiss, (ECF No. 25), is GRANTED,

and Counts III and IV are DISMISSED with prejudice. An appropriate Order will be entered.

. * O¢ p >

(fivatine P. HEARN

United States District Judge