SEVERINO v. NEW JERSEY DEPT OF HUMAN SERVICES

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

WILLIAM F. SEVERINO, III,

Case No. 23–22595–ESK–SAK

Plaintiff,

v.

OPINION

NEW JERSEY DEPARTMENT OF

HUMAN SERVICES, et al.,

Defendants.

KIEL, U.S.D.J.

THIS MATTER is before the Court on defendants New Jersey

Department of Human Services (Department), Sarah Adelman, and Elisa

Neira’s (Moving Defendants) motion to dismiss (Motion). (ECF No. 4.)

Plaintiff William F. Severino, III filed an opposition (ECF No. 5) to which

Moving Defendants replied (ECF No. 6). For the following reasons, the Motion

will be GRANTED IN PART and denied to the extent that Moving Defendants

seek dismissal of all claims with prejudice.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is a New Jersey citizen and applicant for WorkFirst New Jersey

general assistance and emergency assistance. (ECF No. 1 pp. 10, 11.)

Adelman was the commissioner of the Department during all relevant times

and Neira served as the Department’s commissioner of social services. (Id.)1

Plaintiff applied for general and emergency assistance in March 2023 and

took part in a phone interview with a caseworker on April 3, 2023. (Id. p. 11.)

The caseworker purportedly told plaintiff that he needed to work in order to

1 Moving Defendants’ supporting brief refers to Neira as a “former employee[].”

(ECF No. 4–1 p. 10.)

receive assistance to which plaintiff responded that he was disabled, required

a MED-1 form,2 and needed to attend eviction court the following week—which

he was instructed by the caseworker to skip. (Id.) Plaintiff also spoke with a

separate caseworker regarding emergency assistance and was denied without

any reason provided and without receiving copies of policies and regulations as

requested. (Id. p. 12.)

Plaintiff called work the following week and informed them that he had to

attend court and that he was waiting to receive a MED-1 form. (Id.)

Plaintiff’s application for general assistance was denied for failure to attend

work on May 1, 2023 by employees of the Middlesex County Board of Social

Services (Board) despite plaintiff’s contention that he had an excusable reason

under the applicable code and the fact that the Board did not provide a MED-1

form. (Id.) Caseworkers did not answer plaintiff’s phone calls to attempt to

file an appeal, so plaintiff mailed his appeal on May 6, 2023. (Id.) Plaintiff

thereafter attempted to obtain a MED-1 form and reapply for general and

emergency assistance, but was “given the run around” by Board employees,

prompting him to write a letter to the governor’s office on June 1, 2023 to

complain of discriminatory behavior and the failure to send him a MED-1 form.

(Id.)

A caseworker contacted plaintiff on June 19, 2023, was unhappy that

plaintiff wrote to the governor’s office, and mailed a MED-1 form to plaintiff.

(Id.) Plaintiff’s physician filled out his MED-1 form on June 23, 2023 and

plaintiff reapplied for general and emergency assistance by emailing a

caseworker. (Id.) The caseworker responded that plaintiff had failed to

2 The complaint does not explain what a MED-1 form is or its necessity. It

appears based on the Court’s review of the New Jersey Administrative Code that MED-

1 forms are used to document the certification of a physician that an individual is

unable to engage in regular work activities due to a chronic illness, infirmity, or mental

or physical disability or impairment expected to last for more than 12 months. See

N.J.A.C. 10:90–4.10(a)(2).

provide proof of a Supplemental Security Income appeal and plaintiff responded

that he was first filing for reconsideration prior to appeal. (Id.)

Plaintiff emailed and sent tort notifications to the Board on July 10, 2023.

(Id.) He was, again, denied general and emergency assistance on July 26,

2023, this time due to failure to send proof of his Supplemental Security Income

case. (Id.) Plaintiff emailed his reconsideration paperwork to the caseworker

that same day. (Id.) On July 30, 2023, plaintiff emailed the Department at

an open email address and then emailed complaints and tort notifications to

Adelman and Neira but did not receive a response. (Id. p. 13.) He then

reapplied for general and emergency assistance. (Id.)3

Plaintiff filed the instant complaint against Moving Defendants, the

Board, and individual Board employees in New Jersey Superior Court – Law

Division in Middlesex County on September 1, 2023. (Id. pp. 10–16.) The

complaint purports to be brought under the United States and New Jersey

constitutions, tort-liability statutes, and New Jersey common law and asserts

six counts. (Id.) Relevant to the instant Motion, Count 1 alleges that Moving

Defendants failed to implement or follow appropriate policies, customs, and

practices in deliberate indifference to plaintiff’s constitutional rights; implicitly

or explicitly adopted policies, customs, and practices such as unreasonable

training in assisting individuals with mental disabilities with obtaining federal

benefits; and failure by the Department to adequately train Adelman and

Neira. (Id. p. 13.) Count 2 alleges negligence and negligent supervision

premised on Adelman and Neira breaching their duty of care to properly

investigate the discrimination of plaintiff—who identifies as a gay, white,

Republican male; the Department’s failure through its employees to adequately

3 Plaintiff has since applied for and received general assistance but has not

received emergency assistance. (ECF No. 5 p. 2.) Moving Defendants acknowledge

that that this approval may moot at least some of plaintiff’s claims, but do not seek

dismissal on that basis. (ECF No. 6 p. 9 n. 1.)

train Adelman and Neira on matters of discrimination and conspiracy such as

refusing to send MED-1 forms; and the Department’s failure to instruct,

supervise, control, and discipline co-defendants relating to harassment plaintiff

has allegedly faced and the deprivation of his statutory rights, privileges, and

immunities. (Id. pp. 13, 14.)4

Moving Defendants removed this action from New Jersey Superior Court

to this District on November 22, 2023 on the basis that plaintiff’s complaint

invoked constitutional claims under 42 U.S.C. § 1983 (Section 1983) and the

Court thus has original jurisdiction pursuant to 28 U.S.C. § 1331. (Id. p. 2.)

Moving Defendants thereafter filed the instant Motion on December 13, 2023

(ECF No. 4) to which plaintiff filed an opposition (ECF No. 5) and Moving

Defendants thereafter replied (ECF No. 6).

4 Plaintiff’s complaint is separated into two “complaints.” (ECF No. 1 pp. 13–

15.) “Complaint One” is directed toward the Department and its employees and

Counts 1 and 2 thereunder allege failure to implement or follow appropriate policies,

customs, and practices and negligence and negligent supervision. (Id. pp. 13, 14.)

“Complaint Two” is directed toward the Board and Counts 3 and 4 mirror Counts 1 and

2, with Counts 5 and 6 alleging retaliation and intentional infliction of emotional

distress (IIED), respectively. (Id. pp. 14, 15.) Count 4 names the Department (id.

p. 15) and Counts 5 and 6 refer to “all defendants,” (id.) and it is unclear to the Court

whether plaintiff is referring to all defendants affiliated with the Board or all

defendants named in this action. Moving Defendants have interpreted the complaint

as asserting Counts 5 and 6 against them as well as the Board. (ECF 4–1 p. 13.)

While the complaint can be fairly read as only asserting Counts 1 and 2 against Moving

Defendants based on the manner in which it is organized, I ultimately conclude that

plaintiff’s claims fail against Moving Defendants for the same reasons no matter

whether Counts 5 and 6 are included. If plaintiff elects to file an amended complaint,

he is reminded of the importance of pleading with sufficient clarity with respect to

which counts are asserted against which defendants. See Garrett v. Wexford Health,

938 F.3d 69, 92 (3d Cir. 2019) (noting that a plaintiff’s burden under Federal Rule of

Civil Procedure 8 is not onerous but nonetheless the plaintiff must provide fair notice

of the claim and the grounds upon which it rests).

II. STANDARD AND PARTY ARGUMENTS

A. Motions to Dismiss Pursuant to Rule

12(b)(6)

Prior to the filing of a responsive pleading, a defendant may move to

dismiss a complaint for failure to state a claim upon which relief can be granted.

See Fed. R. Civ. P. 12(b)(6). To survive dismissal under Rule 12(b)(6), “a

complaint must provide ‘a short and plain statement of the claim showing that

the pleader is entitled to relief,’” Doe v. Princeton Univ., 30 F.4th 335, 341 (3d

Cir. 2022) (quoting Fed. R. Civ. P. 8(a)(2)), and—accepting the plaintiff’s factual

assertions, but not legal conclusions, as true—“‘plausibly suggest[]’ facts

sufficient to ‘draw the reasonable inference that the defendant is liable for the

misconduct alleged,’” id. at 342 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 557 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Courts further

evaluate the sufficiency of a complaint by “(1) identifying the elements of the

claim, (2) reviewing the complaint to strike conclusory allegations, and then (3)

looking at the well-pleaded components of the complaint and evaluating

whether all of the elements identified in part one of the inquiry are sufficiently

alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

B. Party Arguments

Moving Defendants urge the Court to abstain from adjudicating this

matter, citing the primary-jurisdiction doctrine and considerations including

the fact that the general- and emergency-assistance processes have an

administrative-appeals procedure that plaintiff has sought to bypass and issues

relating to courts’ potential micromanagement of assistance processes, namely

a lack of familiarity. (ECF 4–1 pp. 19–24.) On the merits, Moving Defendants

first assert that—to the extent that plaintiff seeks monetary damages for

violation of his civil rights—Moving Defendants are not individuals amenable

to suit for monetary damages pursuant to Section 1983 and the New Jersey

Civil Rights Act (Civil Rights Act). (Id. pp. 14–19.) Second, plaintiff

improperly seeks to hold Moving Defendants vicariously liable for the conduct

of the Board and its employees, according to Moving Defendants, but has failed

to identify any specific policy, custom, or practice that has led to the alleged

violation of plaintiff’s rights. (Id. pp. 24–26.) Third, Moving Defendants

assert that plaintiff’s claims against them in their individual capacities are

barred under the doctrine of qualified immunity and New Jersey Tort Claims

Act (Tort Claims Act), namely for failure to identify a clearly established right

that has been violated. (Id. pp. 26–34.) Finally, Moving Defendants argue

that the Tort Claims Act bars plaintiff’s tort claims because he has not averred

compliance with notice requirements and that claims stemming from the denial

of an issuance or approval of authorization are precluded. (Id. pp. 34–37.)

Plaintiff responds by questioning the point of having constitutions and

statutes designed to protect rights when individuals are immunized from

violating the rights of others and adds that if Adelman and Neira have been

assigned Social Security numbers, they are persons who may be held

accountable. (ECF No. 5 pp. 2, 3.) Plaintiff refutes Moving Defendants’

position that the case is essentially a challenge to assistance denials, but rather

argues that his case is premised on why he was denied assistance—namely lack

of training, retaliation, and failure to intervene. (Id. p. 3.) Plaintiff denies

that he bypassed any administrative process, but then adds that the fairness-

hearing process is lengthy as compared to filing a complaint. (Id.) Finally—

citing their statutory powers and duties—plaintiff claims that Adelman and

Neira had personal involvement and a duty to address his denials and—citing

the Tort Claims Act—asserts that Moving Defendants cannot be immune

because they did not act reasonably and the Department is liable for the acts or

omissions of its employees. (Id. pp. 4–6.)5

III. DISCUSSION

A. Primary-Jurisdiction Doctrine

Before reaching the merits of plaintiff’s claims and the Motion, I first

consider whether abstention is appropriate pursuant to the primary-

jurisdiction doctrine. I conclude that it is not.

The doctrine applies “whenever enforcement of the claim requires the

resolution of issues which, under a regulatory scheme, have been placed within

the special competence of an administrative body ….” Raritan Baykeeper v.

NL Industries, Inc., 660 F.3d 686, 691 (3d Cir. 2011) (quoting United States v.

W. Pac. R.R. Co., 352 U.S. 59, 64 (1956)). Whether application is appropriate

is determined by weighing four factors:

(1) Whether the question at issue is within the

conventional experience of judges or whether it involves

technical or policy considerations within the agency’s

particular field of expertise; (2) Whether the question at

issue is particularly within the agency’s discretion; (3)

Whether there exists a substantial danger of inconsistent

rulings; and (4) Whether a prior application to the agency

has been made.

5 Plaintiff asserts in his brief that this case ought to be remanded to Superior

Court. (ECF No. 5 pp. 1, 2, 4.) A removed case may be remanded to state court if

removal was procedurally defective or the federal court lacks subject-matter

jurisdiction. Farrell v. FedEx Ground Package Sys., Inc., 478 F. Supp. 3d 536, 540

(D.N.J. 2020). In so far as plaintiff may believe that removal was procedurally

deficient, any such argument is untimely as his brief was filed more than 30 days after

removal. See 28 U.S.C. § 1447(c); Green Tree Servicing LLC v. Dillard, 88 F. Supp. 3d

399, 400 n. 2 (D.N.J. 2015) (treating the alleged violation of the rule of unanimity as

waived for failure to object within 30 days). Plaintiff further offers no support that

the Court lacks subject-matter jurisdiction over his claims, which allege violations of

his federal constitutional rights. See 28 U.S.C. § 1331 (“The district courts shall have

original jurisdiction of all civil actions arising under the Constitution, laws, or treaties

of the United States.”)

Id. (quoting Global Naps, Inc. v. Bell Atl.–N.J., 287 F. Supp. 2d 532, 549 (D.N.J.

2003)).

The recent decision in Jackson v. Seifried, Case No. 20–17410, 2023 WL

4627815 (D.N.J. July 19, 2023), is instructive. There, the plaintiff was an

enrollee in the New Jersey Community Care Program administered by the

Department’s Division of Developmental Disabilities and asserted causes of

action including claims under Section 1983 and the Civil Rights Act premised

on allegations similar to those made by plaintiff such as failure to return calls,

harassment, and lack of adequate training. Jackson, 2023 WL 4627815, at *1,

2. The court declined to apply the primary-jurisdiction doctrine based on the

fact that the plaintiff’s claims under Section 1983, the Civil Rights Act, and

elsewhere did not involve discretionary decision-making by the Division of

Developmental Disabilities. Id. at *3.

I find that a similar result is warranted here. First, though the issues

underlying the complaint are the denials of plaintiff’s assistance applications,

his claims appear focused on harassment, discrimination, and deprivation of

rights—all of which are familiar to the Court. See Mason v. Coca-Cola Co.,

Case No. 09–00220, 2010 WL 2674445, at *2 (D.N.J. June 30, 2010) (“No

technical expertise within the special province of the FDA is necessary for any

of the determinations called for in this case.”). To interpret the “the gravamen”

of plaintiff’s case as “truly an administrative matter, not a civil rights case”

(ECF No. 4–1 p. 23) would be to read past plaintiff’s explicit allegations and

disregard the Court’s familiarity with applicable law.

Similarly, though the Department and Board certainly exercise discretion

in the application process, the specific questions plaintiff brings before the

Court are not clearly part of that discretion. See In re Metformin Mktg. and

Sales Prac. Litig., Case No. 20–02324, 2022 WL 970281, at *8 (D.N.J. Mar. 30,

2022) (“[B]ecause the questions at issue mainly involve state tort law, the

‘question[s] at issue’ here are not particularly in the discretion of the FDA.”

(second alteration in original) (citing In re Methyl Tertiary Butyl Ether Prods.

Liab. Litig., 175 F. Supp. 2d 593, 618 (S.D.N.Y. 2001))). I also do not find that

there is a risk of inconsistent rulings. Plaintiff may have mooted, at least in

part, some of his claims by seeking and receiving general assistance after the

filing of his complaint, but it does not appear as though plaintiff has raised

claims similar to those at issue here before a state administrative body. See

cf. Iowa Network Servs., Inc. v. AT&T Corp., Case No. 14–03439, 2015 WL

5996301, at *7 (D.N.J. Oct. 14, 2015) (finding a risk of inconsistency when a

separate matter with issues that potentially overlapped with the instant case

was before the Federal Communications Commission).

Lastly, Moving Defendants argue that plaintiff has unsuccessfully applied

for assistance on multiple occasions and, unsatisfied with the results, has

sought to bypass the administrative process in favor of filing this action.

Plaintiff’s rebuttal to whether he has exhausted his administrative remedies is

unpersuasive. However, to the extent that plaintiff has continued to apply for

assistance, it is not clear that he has raised similar harassment and

discrimination argument and—in any case—prior applications are not alone

determinative in the primary-jurisdiction analysis. See In re Metformin Mktg.

and Sales Prac. Litig., 2022 WL 970281, at *9. Furthermore, failure to utilize

the administrative process does not preclude plaintiff’s claims that Moving

Defendants violated his rights through harassment, discrimination, and

improper training. See Shappell v. Camden Cnty. Bd. of Soc. Servs., Case No.

13–05287, 2014 WL 2434185, at *3, 4 (D.N.J. May 29, 2014) (agreeing with the

plaintiff as a matter of law that her failure to seek an administrative hearing

did not bar her Section 1983 claim, but concluding that the availability of the

hearing contradicted her claim of lack of due process). Plaintiff may have been

well-served engaging in the administrative process following the denials of his

applications, but I conclude that his failure to do so is insufficient to warrant

abstention here.

B. Plaintiff’s Section 1983 and Civil Rights

Act Claims

Plaintiff’s federal constitutional claims are governed by Section 1983, see

Carpenter v. Chard, 492 F. Supp. 3d 321, 328, 329 (D.N.J. 2020), and his state

constitutional claims are governed by the Civil Rights Act, see Castro v. New

Jersey, 521 F. Supp. 3d 509, 517 n. 6 (D.N.J. 2021) (noting that the Civil Rights

Act creates a private cause of action for violations of rights under both the

United States and New Jersey Constitutions).

Section 1983 and the Civil Rights Act both provide for civil actions relating

to the deprivation of rights by a person acting under the color of law. See 42

U.S.C. § 1983; N.J.S.A. 10:6–2(c). To make out a claim under Section 1983, a

plaintiff must show “(1) that the plaintiff was deprived of a ‘right or privileges

secured by the Constitution or the laws of the United States’ and (2) that

plaintiff was deprived of his rights by a person acting under the color of state

law.” Tucker v. City of Phila., 679 F. Supp. 3d 127, 136 (D.N.J. 2023) (quoting

Williams v. Borough of W. Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989)). The

analyses for Section 1983 and Civil Rights Act claims are virtually identical,

Telzer v. Borough of Englewood Cliffs, 783 F. App’x 253, 257 n. 5 (3d Cir. 2019),

such that courts within this District have reviewed such claims together, see,

e.g., Carpenter, 492 F. Supp. 3d at 328 n. 1; Janowski v. City of N. Wildwood,

259 F. Supp. 3d 113, 121 (D.N.J. 2017).

This standard is fatal to plaintiff’s constitutional claims, at least in so far

as he seeks monetary damages. Entities that are effectively arms of the state

are not persons under Section 1983 and therefore cannot be sued for damages.

See Patterson v. Pa. Liquor Control Bd., 915 F.3d 945, 956 n. 2 (3d Cir. 2019);

see also Durham v. Kelley, 82 F.4th 217, 224 (3d Cir. 2023) (“States, and state

officers, if sued in their official capacities for retrospective relief, are not

‘persons’ subject to suit under § 1983; however, state employees in their

individual capacities may be liable for damages under § 1983, even when the

conduct in question is related to their official duties.”); Gonzalez v. N.J. Dep’t of

Child. and Fams., 545 F. Supp. 3d 178, 201, 202 (D.N.J. 2021) (finding that

state agencies are immune from suit absent Eleventh Amendment waiver and

that the Civil Rights Act similarly does not provide for claims against the state

or arms of the state). The Department has been recognized as an agency of the

state, and therefore not a person for Section 1983 purposes, within this District.

See Gattuso v. N.J. Dep’t of Hum. Servs., 881 F. Supp. 2d 639, 646 (D.N.J. 2012)

(granting dismissal of the plaintiffs’ Section 1983 claims).

Though plaintiff may not seek monetary damages, he is not barred from

seeking prospective injunctive relief. See McCauley v. Univ. of the V.I., 618

F.3d 232, 241 (3d Cir. 2010); see also Deal v. Velez, 244 F. Supp. 3d 435, 442

(D.N.J. 2017) (recognizing that state officials sued for injunctive relief in their

official capacities are persons under Section 1983 and that federal courts may

enjoin state officers into prospective compliance with federal law with respect

to the payment of public benefits). Plaintiff’s claim for such relief is met by

factual issues and pleading inadequacies.

First, plaintiff has been approved for general assistance. (ECF No. 5 p.2.)

Therefore, his request for injunctive relief is arguably moot, in part, as plaintiff

has received the prospective relief to which he may have been entitled.

Second, plaintiff may not rely on the actions of the Board or its employees

alone in seeking to impose liability on Adelman or Neira. See Dooley v. Wetzel,

957 F.3d 366, 374 (3d Cir. 2020) (noting, in the context of Section 1983 claims

against prison officials, that a plaintiff could not rely solely on respondeat

superior liability and that the plaintiff failed to plead facts indicating that the

defendants were personally involved in the alleged misconduct). Specific to

Adelman and Neira, plaintiff alleges that he emailed complaints and tort

notifications to them that went unanswered and that they “implicitly and

explicitly adopted and implemented careless and reckless policies, customs, or

practices that included among other things displaying a pattern and practice of

unreasonable training in the field of mentally and educationally challenged

citizens in obtaining federal programs and filing and addressing tort

notifications and complaints.”6 (ECF No. 1 at p. 13.) It appears as though

these emails may have been sent to an “open email” and it is unclear whether

Adelman or Neira had access to the account or, even if so, their failure to

respond would be actionable.

Furthermore, plaintiff has not identified any specific policy, custom, or

practice that allegedly deprived him of his rights, let alone one initiated or

acquiesced to by Adelman or Neira. See Gay v. Warren, Case No. 11–05930,

2013 WL 2338697, at *4, 5 (D.N.J. May 28, 2013) (noting that a supervisor’s

personal involvement may “be shown through allegations of personal direction

or of actual knowledge and acquiescence” and that the plaintiff did not allege

that the administrator was personally aware of or personally denied requests

sent to the administration (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207

(3d Cir. 1988))); Dickerson v. SCI Graterford, Case No. 10–07177, 2011 WL

6 Plaintiff’s emphasis on Moving Defendants’ alleged adoption and

implementation of policies, customs, or practices brings to mind the elements

necessary to articulate a Monell claim. See Baloga v. Pittston Area Sch. Dist., 927

F.3d 742, 761 (3d Cir. 2019) (recognizing that a municipality may be held liable under

Section 1983 when an official with final decision-making authority has issued an

official proclamation, policy, or edict or, alternatively, a course of conduct that is so

permanent and well-settled as to virtually constitute law that is violative of the

plaintiff’s rights). To the extent that plaintiff intended to invoke this standard,

“liability under Monell is limited to municipalities.” Downey v. Pa. Dep’t of Corrs.,

968 F.3d 299, 310 n. 10 (3d Cir. 2020). Furthermore, with or without the applicable

standard, plaintiff has failed to identify a specific policy or custom that has led to the

alleged violations.

3862198, at *4 n. 12 (E.D. Pa. Aug. 30, 2011) (“In an official-capacity action …

the plaintiff must show that the state’s ‘policy or custom’ played a part in the

alleged violation. The plaintiff has identified no such state policy or custom.”

(citing Kentucky v. Graham, 473 U.S. 159, 166 (1985))).

Plaintiff’s claims against Adelman and Neira in their individual capacities

fail for similar reasons. State officials sued in their individual capacities are

persons amenable to suit under Section 1983. See Kaul v. Christie, 372 F.

Supp. 3d 206, 244 (D.N.J. 2019); see also Slinger v. New Jersey, 366 F. App’x

357, 360 (3d Cir. 2010) (“[T]he Eleventh Amendment does not bar suits brought

against state officials in their individual capacities, even if the actions which

are the subject of the suit were part of their official duties ….” (citing Hafer v.

Melo, 502 U.S. 21 (1991))); Ehrlich v. Alvarez, Case No. 20–06398, 2021 WL

2284108, at *5 (D.N.J. June 4, 2021) (“Eleventh Amendment immunity does not

bar suits against state officials sued in their individual capacity. Because

damage remedies from a state official acting in his or her individual capacity

would come from that individual’s personal assets, the state would not be the

real party of interest.” (citations omitted)).

Adelman and Neira may not be immune from suit in their individual

capacities, but plaintiff is still obligated to plead facts sufficient to establish

claims against them. See Torrey v. New Jersey, Case No. 13–01192, 2014 WL

941308, at *12 (D.N.J. Mar. 11, 2014) (finding that plaintiff was obligated to

allege sufficient facts to establish a Fourteenth-Amendment violation and that

plaintiff failed to do so with respect to his property-interest claim). Similar to

plaintiff’s official-capacity claims, I find that plaintiff’s allegations that

Adelman and Neira did not respond to emails that may or may not have been

sent to them and adoption or implementation of vague policies or customs do

not meet his obligation. See Jones v. Unknown D.O.C. Bus Driver and Transp.

Crew, 944 F.3d 478, 483 (3d Cir. 2019) (concluding that the plaintiff’s claims

against two state officials in their individual capacities failed because no facts

were alleged to show that either were involved in the two relevant incidents);

Neal v. Powell, Case No. 17–04768, 2018 WL 2754071, at *3 (D.N.J. June 8,

2018) (concluding that the plaintiff’s “generalized allegation” that the

individual defendant participated in, condoned, or acquiesced to the violative

conduct was insufficient to make out a Section 1983 claim).

Plaintiff’s Section 1983 and Civil Rights Act claims will therefore be

dismissed. Dismissal will be with prejudice in so far as plaintiff seeks

monetary damages against the Department or Adelman or Neira in their official

capacities. See Pagliaroli v. Ahsan, Case No. 18–09683, 2019 WL 979244, at

*2 (D.N.J. Feb. 28, 2019); Campbell v. John, Case No. 12–02750, 2016 WL

2347038, at *4 (D.N.J. May 4, 2016). Dismissal is without prejudice with

respect to plaintiff’s remaining Section 1983 and Civil Rights Act claims,

namely his claims for injunctive relief and against Adelman and Neira in their

individual capacities in recognition of the fact that plaintiff is proceeding pro se

and may benefit from an opportunity to amend. See Fleming v. Cape May

Cnty., 475 F. App’x 811, 812 (3d Cir. 2012) (“Ordinarily, a District Court should

not dismiss a [pro se] complaint without granting leave to amend.”).

C. Plaintiff’s Tort Claims

Moving Defendants argue that the New Jersey Tort Claims Act serves as

an alternative basis for dismissal of plaintiff’s Section 1983 and Civil Rights Act

Claims and, relevant to this section, his common-law claims. (ECF No. 4–1

pp. 33, 34.)7 Specifically, Moving Defendants cite N.J.S.A. 59:3–3 which

7 Moving Defendants also argue that qualified immunity bars plaintiff’s tort and

common-law claims on the basis that plaintiff has not adequately identified the

violation of a clearly established right. (ECF No. 4–1 p. 33.) Moving Defendants

assert that plaintiff “has no clearly established right to vicariously hold [them] liable

for the denial of his GA and EA applications when the application process had

irregularities either due to codefendants’ actions or his own.” (Id.) The complaint

appears more directly focused on a right to the benefits themselves. Because Moving

provides that “[a] public employee is not liable if he acts in good faith in the

execution or enforcement of any law.” N.J.S.A. 59:3–3; see also N.J.S.A. 59:2–

2(b) (“A public entity is not liable for an injury resulting from an act or omission

of a public employee where the public employee is not liable.”). The good-faith

provision “immunizes employees who have acted (a) with objective

reasonableness, or (b) with subjective good faith,” with satisfaction of either

standard warranting immunity. See Gonzalez, 545 F. Supp. 3d at 218 (citing

Toto v. Ensuar, 952 A.2d 463, 470 (N.J. 2008)). Immunity requires an action

by the public employee and an actual law that has purportedly been enforced.

See Maison v. NJ Transit Corp., 214 A.3d 189, 198 (N.J. Super. Ct. App. Div.

2019). Ordinary negligence is insufficient to support liability. See Crystal

Ice-Bridgeton, LLC v. City of Bridgeton, 54 A.3d 848, 854 (N.J. Super. Ct. App.

Div. 2012).

Plaintiff brings two causes of action, negligence and negligent supervision,

that are clearly asserted against Moving Defendants in Count 2. “The

fundamental elements of a negligence claim are a duty of care owed by the

defendant to the plaintiff, a breach of that duty by the defendant, injury to the

plaintiff proximately caused by the breach, and damages.” Robinson v.

Vivirito, 86 A.3d 119, 124 (N.J. 2014). A prima facie negligent supervision

claim requires a showing “(1) that the employer ‘knew or had reason to know of

the particular unfitness, incompetence, or dangerous attributes of [the

employees] who were involved,’ (2) ‘could reasonably have foreseen that such

Defendants’ brief appears directed toward a right distinct from that which plaintiff

claims entitlement to and because I will nonetheless dismiss plaintiff’s tort claims on

alternative grounds, I do not further consider Moving Defendants’ qualified-immunity

defense without prejudice to assertion of a similar such defense in the future. See

Custin v. Wirths, Case No. 12–00910, 2016 WL 1157644, at *4 (D.N.J. Mar. 22, 2016)

(noting that the parties did not dispute that medical benefits constitute a property

right and concluding that whether a reasonable official would have understood certain

actions as violative of due process were questions of fact that could be later raised at

summary judgment).

qualities created a risk of harm to other persons,’ and (3) the employer’s

negligence ‘proximately caused plaintiff[’s] injuries.’” Lankford v. City of

Clifton Police Dep’t, 546 F. Supp. 3d 296, 330 (D.N.J. 2021) (alterations in

original) (quoting Smith v. Harrah’s Casino Resort of Atl. City, Case No. A–

0855–12T2, 2013 WL 6508406, at *3 (N.J. Super. Ct. App. Div. Dec. 13, 2013)).

To the extent that plaintiff’s retaliation and IIED claims in Counts 5 and

6 are directed toward Moving Defendants, an IIED claim requires 1) that the

defendant acted intentionally or recklessly, 2) the defendant’s conduct was “so

‘extreme and outrageous ... as to go beyond all possible bounds of decency, and

to be regarded as atrocious, and utterly intolerable in a civilized community,’”

3) proximate causation, and 4) “distress that is ‘so severe that no reasonable

man could be expected to endure it.’” See Juzwiak v. Doe, 2 A.3d 428, 433 (N.J.

Super. Ct. App. Div. 2010) (omission in original) (quoting Buckley v. Trenton

Saving Fund Soc’y, 544 A.2d 857, 863 (N.J. 1988)). Plaintiff’s retaliatory

action claim is premised, at least in part, on alleged fraud, which requires “(1)

a material misrepresentation of a presently existing or past fact; (2) knowledge

or belief by the defendant of its falsity; (3) an intention that the other person

rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting

damages.” Suarez v. Eastern Int’l Coll., 50 A.3d 75, 85 (N.J. Super. Ct. App.

Div. 2012) (quoting Gennari v. Weichert Co. Realtors, 691 A.2d 350, 367 (N.J.

1997)).8

8 Plaintiff also alleges official misconduct as part of his retaliation claim. (ECF

No. 1 p. 15.) Official misconduct is a criminal offense, N.J.S.A. 2C:30–2, for which

plaintiff has no private right of action, Jones v. Somerset Cnty. Prosecutor’s Off., Case

No. 15–02629, 2017 WL 1337432, at *9 (D.N.J. Apr. 7, 2017) (dismissing an official-

misconduct claim because the plaintiff did not have a private right of action to enforce

the alleged violations of the New Jersey Criminal Code).

The actions alleged by plaintiff were made in furtherance of various

provisions of the New Jersey Administrative Code pertaining to general- and

emergency-assistance eligibility, according to Moving Defendants. (ECF No.

4–1 pp. 33, 34; see also Stoll v. Cumberland Cnty., Case No. A–3457–22, 2024

WL 2284950, at *7 (N.J. Super. Ct. App. Div. May 21, 2024) (concluding that

the officer was acting to enforce New Jersey Administrative Code relating to

prison security).) “In many cases, the question of ‘good faith’ presents a

question of fact to be resolved at a hearing.” Roberts v. Gillikin, Case No. 06–

00088, 2007 WL 2066382, at *6 (D.N.J. July 13, 2007) (citing Fielder v. Stonack,

661 A.2d 231, 246 (N.J. 1995)). Nonetheless, I conclude that dismissal without

prejudice is appropriate here due to similar pleading inadequacies as raised

above. Plaintiff references a failure to properly investigate discrimination he

has faced, failure to train Adelman and Neira in matters of discrimination,

alleged retaliation due to his vocal opposition to corruption, and similar claims

without providing necessary clarity as to whether the harm alleged was directly

caused by these actions, whether the denials alone are the discrimination he

complains of, or similar bonds between the facts alleged and his claims. Count

5 cuts off abruptly in the middle of an apparent allegation of fraud and the

complaint reads as though plaintiff presumes the Court’s familiarity with

context and background necessary to analyze his claims. Plaintiff’s recitation

of the causes of action asserted and emphasis that his claims go beyond the

mere denials of his assistance applications do little to orient the Court. (ECF

No. 5.)

Plaintiff’s complaint as drafted provides little beyond bare claims that he

has been retaliated and discriminated against combined with recitations of

some of the necessary elements for the causes of action asserted. Therefore,

including and beyond the applicability of immunities asserted,9 dismissal is

warranted. See, e.g., Capps v. Dixon, Case No. 19–12002, 2021 WL 2024998,

at *8 (D.N.J. May 21, 2021) (finding that the plaintiffs failed to sufficiently

9 In addition to immunity pursuant to N.J.S.A. 59:3–3, Moving Defendants assert

that plaintiff’s claims are barred by N.J.S.A. 59:8–4 and 59:8–8 for failure to plead

compliance with notice requirements and N.J.S.A. 59:2–5 and 59:3–6 because

plaintiff’s claims relate to the denial of an approval. (ECF No. 4–1 pp. 34–37.)

Failure to plead compliance with the Tort Claims Act’s notice requirements may serve

as grounds for dismissal. See N.J.S.A. 59:8–3(a) (“Except as otherwise provided in

this section, no action shall be brought against a public entity or public employee under

this act unless the claim upon which it is based shall have been presented in accordance

with the procedure set forth in this chapter.” (footnote omitted)); Ingram v. Twp. of

Deptford, 858 F. Supp. 2d 386, 400 (D.N.J. 2012) (“The Plaintiff’s complaint does not

allege that she filed notice in accordance with the statute. Therefore, the Plaintiff’s

complaint fails to state a claim for negligence and assault and battery and must be

dismissed.”); but see Castro v. Atl. Cnty., Case No. 15–02041, 2018 WL 3122065, at *9

n. 10 (D.N.J. June 25, 2018) (noting that the Tort Claims Act does not require that a

plaintiff plead compliance in order to satisfy procedural requirements). Moving

Defendants assert that plaintiff has failed to state that he has complied with notice

requirements and it is unclear whether he actually did so. (ECF No. 4–1 p. 36.) I

decline to look beyond the complaint at the pleading stage to dismiss plaintiff’s claims

on this basis. See Doe, 30 F.4th at 342 (“Generally, ‘a district court ruling on a motion

to dismiss may not consider matters extraneous to the pleadings.’” (quoting In re

Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997))). Further,

N.J.S.A. 59:2–5 bars liability for injuries caused “by the failure or refusal to issue,

deny, suspend or revoke, any permit, license, certificate, approval, order, or similar

authorization where the public entity or public employee is authorized by law to

determine whether or not such authorization should be issued, denied, suspended or

revoked.” N.J.S.A. 59:2–5. It appears, however, that N.J.S.A. 59:2–5 applies “to all

phases of licensing function” and is therefore not readily applicable to plaintiff’s

assistance applications. See Citadel Fed. Credit Union v. N.J. Motor Vehicle Comm’n,

Case No. A–4655–16T4, 2018 WL 2293198, at *2 (N.J. Super. Ct. App. Div. May 21,

2018) (quoting Malloy v. State, 388 A.2d 622, 625 (N.J. 1978)). I note that, while not

raised by Moving Defendants, public entities and employees are not liable for injuries

caused by the termination or reduction of benefits under public-assistance programs.

N.J.S.A. 59:2–8; N.J.S.A. 59:3–12; see also Phillips v. Cnty. of Essex Dep’t of Citizen

Servs., Case No. 16–05807, 2020 WL 5810558, at *3 (D.N.J. Sept. 30, 2020) (granting

summary judgment on the plaintiff’s claim that he was defamed by the agencies’

wrongful denial of benefits). Though these sections of the Tort Claims Act may

provide further support for dismissal, I do not rely on them as Moving Defendants have

not raised such arguments and plaintiff has not had the benefit of responding to their

potential application to this case.

allege that the supervisor defendants acted with at least recklessness or a nexus

between the supervisor defendants’ actions and the plaintiffs’ claims); Greer v.

Cumberland Cnty. Prosecutor’s Off., Case No. 14–03032, 2015 WL 3603986, at

*4 (D.N.J. June 8, 2015) (concluding that the plaintiffs’ bald assertions and

legal conclusions that the defendants were negligent were insufficient apart

from any immunity asserted, including N.J.S.A. 59:3–3). Because I premise

dismissal in significant part on inadequate pleading, dismissal will be without

prejudice to plaintiff’s filing of an amended complaint consistent with this

opinion.

IV. CONCLUSION

For the foregoing reasons, Moving Defendants’ Motion (ECF No. 4) will be

GRANTED IN PART. Plaintiff will be provided 30 days to file an amended

complaint consistent with this opinion and the applicable Federal Rules of Civil

Procedure and Local Civil Rules, namely Federal Rule of Civil Procedure 8

pertaining to proper pleading. An appropriate order accompanies this opinion.

/s/ Edward S. Kiel

EDWARD S. KIEL

UNITED STATES DISTRICT JUDGE

Dated: June 25, 2024