JOHNSON v. NEW JERSEY STATE BOARD OF COSMETOLOGY AND HAIRSTYLING

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ATIYA JOHNSON,

Plaintiff, Civ. No. 1:21-cv-10429-NLH-AMD

v. OPINION

NEW JERSEY STATE BOARD OF

COSMETOLOGY AND HAIRSTYLING,

EXECUTIVE DIRECTOR JAY A.

MALANGA, INVESTIGATOR

CHRISTINE GREEN,

Defendants.

APPEARANCES:

ATIYA JOHNSON

144 GLASSWYCKE DRIVE

GLASSBORO, NJ 08028

Plaintiff appearing Pro Se

RAQUEL YVONNE BRISTOL

NJ OFFICE OF THE ATTORNEY GENERAL

DIVISOIN OF LAW, CONSUMER AFFAIRS COUNSELING

124 HALSEY ST.

P.O. BOX 45029

NEWARK, NJ 07102

On behalf of Defendants

HILLMAN, District Judge

This matter has come before the Court pursuant to Atiya

Johnson’s (“Plaintiff”) Motion for Relief of Judgment or Order

Pursuant to Federal Rule of Civil Procedure 60(b)1 and (6) (ECF

No. 21) received on April 18, 2022, and an Amended Complaint

filed on April 20, 2022 (ECF No. 22). Plaintiff’s Motion for

Relief from Judgment in essence sought relief from an earlier

Order of the Court granting Plaintiff a certain period of time

to file a proposed Amended Complaint which had passed without

Plaintiff providing an Amended Complaint. (ECF No. 17).

BACKGROUND

Plaintiff filed her first complaint on April 29, 2021,

alleging violations of the Due Process and Equal Protection

clauses of the Fourteenth Amendment. Plaintiff alleged that the

New Jersey State Board of Cosmetology and Hairstyling and two of

its employees, Jay Malanga and Christine Green, (collectively,

“Defendants”) unlawfully conspired to deny her a license to

operate a hair salon and a cosmetology school. (ECF No. 1 at

3). The parties commenced briefing and in January of 2022

Plaintiff received the salon and school licenses that she

sought. (ECF No. 15). Plaintiff sent a “Certification” on

February 28, 2022, stating that she was not satisfied by the

school license because there was a “stipulation” that would

prevent her ability to sell the school should she choose to in

the future. (ECF No. 16).

The Court dismissed the original complaint on March 4, 2022

because Plaintiff’s “speculative and conclusory pleading” failed

to survive Rule 12(b)(6) review. (ECF No. 17 at 15). However,

this Court granted Plaintiff thirty days to amend her complaint

to state a plausible claim. (Id.). Plaintiff provided a

“Response to the Court’s Action” on April 1, 2022 – within the

30-day window - reiterating her dissatisfaction with the

“stipulation” related to the school license and asking for the

court to give “defendant reasonable/ample time to complete the

partially settled matters” pursuant to Federal Rule of Civil

Procedure 8(a)(3).1 (ECF No. 19 at 3, 4). The motion

essentially asked the Court to reconsider it prior ruling. No

proposed amended complaint was attached.

Defendant responded with a letter on April 7, 2022, which

did not address Plaintiff’s allegations of “partial settlement,”

and “deem[ed] the matter to be closed in accordance with the

Court’s March 4th Order” noting that the time to file the Amended

Complaint had run. (ECF No. 20). Plaintiff then filed a Motion

for Relief from Judgment pursuant to Rule 60(b) on April 18,

2022, and then subsequently filed an Amended Complaint on April

20, 2022 out of time. (ECF Nos. 21 and 22). On May 2, 2022

Defendants filed an opposition to Plaintiff’s Rule 60(b) Motion.

(ECF No. 23). Defendants subsequently filed a Cross Motion to

Dismiss on May 4, 2022. (ECF No. 24). Thus, the matter is ripe

1 Federal Rule of Civil Procedure 8(a)(3) is inapplicable in this

context. That subsection of Rule 8 simply says that a pleading

asserting a claim must include what the common law, later

codified, called an ad damnum clause or a demand of the relief

sought.

for adjudication.

DISCUSSION

I. Standard for Motion Pursuant to Rule 60(b)

Rule 60(b) is only applicable to final judgments.

Dinnerstein v. Burlington County, No. 13-5598, 2015 WL 224428,

at *1 (D.N.J. Jan. 14, 2015) (“an order dismissing a complaint

without prejudice is not a final order as long as the plaintiff

may cure the deficiency and refile the complaint.”). According

to Rule 60(b), the Court has discretion to provide relief in

final judgments for equitable reasons, in pertinent part: “(1)

mistake, inadvertence, surprise, or excusable neglect. . . (6)

any other reason that justifies relief.” Rule 60(b)(1) and (6);

see also Pierce Assoc. Inc. v. Nemours Found., 865 F.2d 530, 548

(3d Cir. 1988) (“[a] motion for relief under Rule 60(b) is

directed to the sound discretion of the trial court.”).

In general, motions pursuant to Rule 60(b) are to be

granted sparingly. Jones v. Lagana, No. 12-5823, U.S. Dist.

LEXIS 101488, at *2-3 (D.N.J. Aug. 3, 2016) (“[a] court may

grant a Rule 60(b) motion only in extraordinary circumstances,

and a Rule 60(b) motion is not appropriate to reargue issues

that the court has already considered and decided.”); Brackett

v. Ashcroft, No. 03-3988, 2003 U.S. Dist. LEXIS 21312, at *2

(D.N.J. Oct. 7, 2003). For motions that seek relief under Rule

60(b)(1), a three-part test applies: (1) Whether the plaintiff

will be prejudiced, (2) whether the defendant has a meritorious

defense, and (3) whether the default was the result of

defendant’s culpable conduct. Smith v. Kroesen, No. 10-5723,

2016 U.S. Dist. LEXIS 132171, at *5-6 (D.N.J. Sept. 27, 2016).

Under Rule 60(b)(6), the three-part test does not apply; rather

the court must consider whether extraordinary circumstances

justify reopening the judgment. Id. at 6. Motions pursuant to

Rule 60(b)(1) have a time limitation of one year after final

judgment, and those motions that seek relief under Rule 60(b)(6)

are generally time barred after one year unless extraordinary

circumstances delayed the filing. Lagana, LEXIS 101488, at *4-

5; see also Gordon v. Monoson, 239 F. App’x 710, 713 (3d Cir.

2007).

II. Analysis

a. Motion Pursuant to Rule 60(b)

Because Plaintiff’s complaint was dismissed without

prejudice, Plaintiff could bring file a proposed amended

complaint asserting sufficient facts to state a plausible claim

for relief and was in fact instructed to do so in this Court’s

prior Opinion. (ECF No. 17 at 15). Therefore, a Rule 60(b)

motion is not a device Plaintiff can use at this time to

remediate the fact that she did not file her Amended Complaint

within the 30-day period granted by this Court. See Dinnerstein

v. Burlington County, No. 13-5598, 2015 WL 224428, at *1 (D.N.J.

Jan. 14, 2015) (“an order dismissing a complaint without

prejudice is not a final order as long as the plaintiff may cure

the deficiency and refile the complaint.”).

However, fairly read, the motion ultimately was one

requesting additional time for the resolution of the matter.

Given that the Plaintiff is pro se, and reading the motion

liberally, it appears the true intent of her request was to have

an extension of time. And though her submission was not in

compliance with the Local Civil Rules for requesting an

extension of time, the Third Circuit prefers for decisions to be

made “on the merits rather than on technicalities.” Dole v.

Arco Chem. Co., 921 F.2d 484, 486-87 (3d Cir. 1990). Therefore,

to the extent that Plaintiff requested additional time, the

Court will grant such a request and review the proposed Amended

Complaint on the merits.

b. The Amended Complaint

Plaintiff was granted leave of 30 days to file an amended

complaint when her original complaint was dismissed on March 4,

2022. (ECF No. 17). Despite this opportunity, Plaintiff

appears to concede that she is unable to plead any additional

facts that would warrant the filing of the Amended Complaint.

In her letter responding the dismissal of the original complaint

Plaintiff argues: “[i]n respect to the court’s 30 day period

granted in order for an amended complaint. The need for an

amended complaint would be an unnecessary burden on the

defendant and the court since the substance of the complaint

would be the same. Plaintiff is not seeking to unnecessarily

burden the defendant or the court with matters that have already

reached an epilogue and can be resolved totally with deliberate

speed and no further action or proceedings minus the resolution

between the two parties.” (ECF No. 19 at 3).

A review of the proposed Amended Complaint plaintiff filed

on April 20, 2022 bears out Plaintiff’s seeming concession. As

the Court’s March 4, 2022 Opinion holds, after consideration of

the factors as described in Allen v. New Jersey State Police,

the New Jersey State Board of Cosmetology and Hairstyling

(“NJSBCH”) is an arm of the state for Eleventh Amendment

purposes, barring Plaintiff’s claim for monetary relief against

the NJSBCH and its employees in their official capacities. (ECF

No. 17 at 11-12); Allen v. New Jersey State Police, 974 F.3d

497, 506 (3d Cir. 2020). Plaintiff has not provided any new

facts in the proposed Amended Complaint that would alter that

analysis. Thus, her claims against the NJSBCH remain barred.

To the extent that Plaintiff tried to assert claims against

Malanga and Green in their individual capacities in her original

complaint, the Court found that the allegations were not

sufficient to state a claim pursuant to the Federal Rules of

Civil Procedure 12(b)(6), (ECF No. 17 at 12), and again nothing

in the proposed Amended Complaint changes that calculus.

Plaintiff simply reasserts that there was a violation of her

civil rights under the Due Process and Equal Protection Clauses

of the Fourteenth Amendment because the license she received in

October 2021 was nontransferable. (ECF No. 22 at 2). Again,

Plaintiff does not present any new facts to suggest that her

constitutional rights have been violated by these Defendants

specifically.

Plaintiff was explicitly instructed by the Court’s March 4,

2022 Opinion that in order to state a claim regarding her

property interests under the Due Process clause she was required

to plead conduct that shocked the conscience in order to

demonstrate a substantive due process violation, or demonstrate

constitutionally deficient procedures. Sauers v. Lower

Southampton Twp., 403 F. App’x 661, 663 (3d Cir. 2010); Hill v.

Borough of Kutztown, 455 F.3d 225, 233–34 (3d Cir. 2006).

Plaintiff has failed to provide any new facts or more specific

information regarding deficient procedures or any incidents that

“shock the conscience” in her Amended Complaint.

She simply reasserts that she is being prejudiced because

her license had a stipulation that she could not transfer the

school due to the fact that it did not meet square footage

requirements. See (ECF No. 22 at 4A-C) (“The first with a

stipulation attached, means she is being prejudiced.”); (ECF No.

23 at 8) (“The inspector surveyed the school and noted its

measurements int detail. The Initial School Inspection report

indicated that Jana’s Cosmetology Academy’s working-space square

footage was only 2,212.53 feet, which was 37.47 square feet less

than the required minimum. ... Plaintiff articulate[s] her

displeasure with the Board’s policy to restrict the

transferability of a Board-licensed entity, due to a non-

conformity – its size.”).

Simply restating that Plaintiff has dealt with “arbitrary

denials from defendants” is not sufficient to overcome the noted

deficiencies in Plaintiff’s original complaint. Plaintiff

reiterated that, in 2019, she was told she needed a wall to

separate the school from the salon, and when she complied, she

did not receive a license. (ECF No. 22 at 3). However, in

2021, Plaintiff did receive a license, but which had a

stipulation attached, as noted, that it would be non-

transferrable due to the fact that the size of the facility did

not conform to state standards. (Id.). Plaintiff notified the

Court of this stipulation on February 28, 2022, approximately 4

months after the license had been issued. (ECF No. 16).

Plaintiff asserts in her letter to the Court that the school has

3,475 square feet, more than the 2,250 square feet required by

statute. (Id.). Although the stipulation attached to her

certificate is new information to the Court (in relation to her

original complaint, which focused on the required separation

between the salon and school), the details Plaintiff has

provided in her Amended Complaint are not sufficient to

demonstrate that the procedures Plaintiff was subject to were

deficient, nor does she report any incidents that “shock the

conscience.”

The mere fact that the State administration decision may be

in error as a matter of state law does not alone establish a

violation of due process. See Bowman v. Burroughs, No. 07-185,

2008 WL 5427910 at *9 (W.D.Pa. Dec. 30, 2008) (“A plaintiff

cannot establish a violation of the Due Process Clause merely by

showing that the process in question has produced a

determination that is erroneous as a matter of state law.”); see

also Gryger v. Burke, 334 U.S. 728, 731 (1948) (“We cannot treat

a mere error of state law, if one occurred, as a denial of due

process; otherwise, every erroneous decision by a state court on

state law would come here as a federal constitutional

question.”); Wood v. Conneaut Lake Park, Inc., 386 F.2d 121, 125

(3d Cir. 1967)(“When the parties have been fully heard in the

regular course of judicial proceedings, an erroneous decision of

the state court does not deprive the unsuccessful party of his

property without due process of law.”). In such situations,

Plaintiff’s remedy is the state administrative and judicial

appeal process. The mere fact, without more, that a state

administrative body or state court erred in its interpretation

of state law is not enough to establish a federal claim of a

denial of due process. Thus, Plaintiff’s Amended Complaint does

not have sufficient allegations to support a substantive due

process violation.

Plaintiff’s Amended Complaint also fails to make out a

claim of violation of the Equal Protection Clause. Plaintiff

does not provide any information about the inspector’s or

Defendants Malanga’s and Green’s conduct to show discrimination

on the basis of membership in a protected class. In order to

state a claim of violation of the Equal Protection Clause, a

plaintiff must allege that he or she was treated differently

from other similarly situated persons and that this difference

in treatment was the result of intentional discrimination based

on his or her membership to a protected group. Watlington on

behalf of FCI Schuylkill Afr. Am. Inmates v. Reigel, 723 F.

App’x 137, 139 (3d Cir. 2018).

Similar to her original complaint, Plaintiff only asserts

that she was “prejudiced” by the “arbitrary denials from

Defendants.” (ECF No. 22 at 4A). And while the Court hears

Plaintiff’s frustrations about the journey to obtain her

license, these assertions are not enough to fix the deficiencies

in her Complaint as described in detail in the Court’s March 4,

2022 Opinion.2

Finally, Defendants filed a cross motion to dismiss the

Amended Complaint on May 4, 2022 because Defendants requested

affirmative relief in their Opposition to Plaintiff’s 60(b)

Motion. (ECF No. 25). However, Plaintiff’s Amended Complaint

fails to remedy the deficiencies as outlined in the Court’s

March 4, 2022 Opinion, as explained above, and therefore the

Court must dismiss the Amended Complaint with prejudice.

Consequently, Defendant’s cross-motion for dismissal is moot.

CONCLUSION

Accordingly, Plaintiff’s Amended Complaint will be

dismissed with prejudice.

An appropriate Order will be entered.

Date: January 23, 2023 _s/ Noel L. Hillman __

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

2 The Court notes that Defendants mention that the restriction on

transferability is an issue “that should be directed to the

Board.” (ECF No. 23 at 8). To the extent that Plaintiff has

not yet exhausted her administrative remedies, the Court

encourages Plaintiff to pursue them with the NJSBCH.