SALVADOR v. CITY OF UNION CITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

VICTORINA SALVADOR and AGVS

HOLDINGS, INC., Civil Action No. 22-cv-6288 (JXN)(AME)

Plaintiffs,

OPINION

v.

CITY OF UNION CITY, BRIAN P.

STACK, individually and in his capacity as

Mayor of the City of Union City, and

ALEJANDRO VELAZQUEZ, individually

and in his capacity as Director of the Union

City Health Department, and JOHN DOES

1-10,

Defendants.

NEALS, District Judge:

Before the Court is Defendants City of Union City, Brian P. Stack (“Stack”), and Alejandro

Velazquez’s (“Velazquez”) (collectively, “Defendants”) motion to dismiss Plaintiffs Victorina

Salvador (“Salvador”) and AGVS Holdings, Inc.’s (“AGVS”) (collectively, “Plaintiffs”) Amended

Complaint (ECF No. 14) (“Amended Complaint” or “Am. Compl.”) for failure to state a claim,

pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 23). Jurisdiction and venue are

proper pursuant to 28 U.S.C. §§ 1331 and 1391, respectively. The Court has carefully considered

the parties’ submissions and decides this matter without oral argument pursuant to Federal Rule

of Civil Procedure 78(b) and Local Civil Rule 78.1(b). For the reasons stated below, Defendants’

motion to dismiss (ECF No. 23) is GRANTED, and the Amended Complaint (ECF No. 14) is

DISMISSED without prejudice, except for Counts VII and VIII, which are DISMISSED with

prejudice.

I. BACKGROUND AND PROCEDURAL HISTORY1

According to the Amended Complaint, AGVS is a company owned and operated by

Salvador. (See Am. Compl. ¶ 14). Stack is a resident of the State of New Jersey who serves as

Mayor of Union City. (Id. at ¶ 8). Velazquez is also a resident of the State of New Jersey who

serves as Director of the Union City Health Department. (Id. at ¶ 9). In January 2022, AGVS

purchased an apartment building located at 324 24th Street in Union City, New Jersey (the

“Property”). (Id. at ¶ 14). Within weeks of purchasing the Property, Salvador alleges that she and

Velazquez “had a phone call” during which Velazquez allegedly “made disrespectful comments

to Salvador.” (Id. at ¶ 15). After the call, Salvador contacted Stack’s office to file a complaint

against Velazquez. (Id. at ¶ 16). Two weeks after filing the complaint against Velazquez, Salvador

alleges that she received a telephone call from Stack during “which he raised his voice and used

offensive language towards her.” (Id. at ¶ 17). After the call, Salvador filed a complaint against

Stack with the state ethics committee that “did not result in any action.” (Id. at ¶ 18).

Sometime “[t]hereafter, during 2022 and 2023, Salvador received anywhere from eight to

nine unfounded ordinance violations from the Union City Department of Health . . . for lack of

repairs to the Property.” (Id. at ¶ 19). Thereafter, Salvador began to observe “handbills and other

signs and notices” from Stack’s office “on and around the Property.” (Id. at ¶ 20). In response,

Salvador posted notices on the front door of the Property expressly prohibiting solicitation. (Id. at

¶ 23). Notwithstanding these notices, Plaintiffs allege Stack continued to place handbills at the

Property.2 (Id. at ¶ 24). On May 10, 2022, Plaintiffs, through counsel, “sent a cease-and-desist

letter requesting that [Stack] refrain from distributing and posting his handbills on the Property,”

1 The following factual allegations are taken from the Amended Complaint that are accepted as true. Sheridan v.

NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010).

2 “Plaintiff” and “Plaintiffs” are used interchangeably throughout the Amended Complaint. The singular “Plaintiff”

predominantly appears to reference Salvador.

which Stack disregarded. (Id. at ¶¶ 25-26). Plaintiffs allege Stack disregarded multiple cease-and-

desist letters, along with complaints filed with Union City, and continued “to send his

representatives to the Property to personally distribute handbills to the tenants in the building.”

(Id. at ¶¶ 27-28).

Around 9:00 AM on October 31, 2023, Plaintiffs “were informed by a Union City Health

Inspector that one of the apartments in the Property was experiencing a lack of heat.” (Id. at ¶ 29).

The outside temperature that day was recorded as “over 52 degrees.” (Id. at ¶ 30). Plaintiffs’ agent

who responded to the Property on their behalf found the boiler to be in “good working order” and

found the building’s temperature “to be within acceptable temperature standards.” (Id. at ¶ 31).

According to Union City Municipal Code Section 329-9, “if the boiler were found to be

malfunctioning, [the property owner] would have been required to have it repaired within twenty-

four (24) hours of receiving notice of the malfunction.” (Id. at ¶ 32). Further, according to Section

32-10, the Health Inspector is only authorized to arrange repairs after this 24-hour period has

passed and requires that the tenant must have made a bona fide attempt to inform the landlord

before lodging a complaint and “the landlord failed to take appropriate action.” (Id. at ¶ 33).

Nevertheless, at around 6:00 PM, Plaintiffs allege that officers from the Union City Police

Department (“UCPD”) “entered the Property and broke into four boiler rooms without

authorization.” (Id. at ¶ 34).

“As recently as February 19, 2024, the UCPD was seen taking pictures of the Property at

the direction of . . . Stack and physically checking doors to see if they were locked – all without

authorization.” (Id. at ¶ 50). Plaintiffs alleges this ongoing pattern of conduct demonstrates a

coordinated effort by city officials to punish Salvador for exercising her constitutional rights to be

free from unwanted solicitation and to be free from unreasonable searches. (Id. at ¶¶ 36, 37).

On May 20, 2024, Plaintiffs initially filed their Complaint. (ECF No. 1). Following the

exchange of pre-motion conference letters, Plaintiffs filed an Amended Complaint on July 26,

2024.3 (See Am. Compl.). The Amended Complaint asserts eight causes of action against

Defendants: (1) deprivation of the right to be let alone in violation of the First Amendment of the

United States Constitution and 42 U.S.C. § 1983 (Count I); (2) First Amendment retaliation under

42 U.S.C. § 1983 (Count II); (3) unreasonable search in violation of the Fourth Amendment of the

United States Constitution and 42 U.S.C. § 1983 (Count III); (4) deprivation of due process in

violation of the Fourteenth Amendment of the United States Constitution and 42 U.S.C. §1983

(Count IV); (5) deprivation of the right to be let alone in violation of the New Jersey Constitution

and N.J. Stat. Ann. § 10:6-2 (Count V); (6) unreasonable search in violation of the New Jersey

Constitution and N.J. Stat. Ann. § 10:6-2 (Count VI); (7) violation of Union City Municipal Code

§§ 208-5 to 208-7 (Count VII); and (8) violation of Union City Municipal Code §§ 329-9 and 329-

10 (Count VIII).

On September 27, 2024, Defendants filed a motion to dismiss the Amended Complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 23) (“Br.”). Plaintiffs opposed the

motion (ECF No. 26) (“Opp’n”), to which Defendants replied. (ECF No. 27) (“Reply”).

Accordingly, the motion is ripe for the Court to decide.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss for “failure to state a

claim upon which relief can be granted.” For a complaint to survive dismissal under the Rule, it

must contain sufficient factual matter to state a claim that is plausible on its face. Ashcroft v. Iqbal,

3 Following the exchange of pre-motion conference letters, the Court granted Plaintiffs’ request to amend their

initial pleading. (See ECF No. 13). Following a second exchange of pre-motion conference letters, on August 20,

2024, the Court granted Defendants’ request to file this motion to dismiss. (See ECF No. 19).

556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim

is facially plausible “when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,

550 U.S. at 556). Although the plausibility standard “does not impose a probability requirement,

it does require a pleading to show more than a sheer possibility that a defendant has acted

unlawfully.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (citation

modified). As a result, a plaintiff must “allege sufficient facts to raise a reasonable expectation that

discovery will uncover proof of [his or] her claims.” Id. at 789.

In evaluating the sufficiency of a complaint, district courts must separate the factual and

legal elements. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Restatements

of a claim’s elements are legal conclusions, and therefore, not entitled to a presumption of truth.

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however, “must

accept all of the complaint’s well-pleaded facts as true[.]” Fowler, 578 F.3d at 210. Even if

plausibly pled, however, a complaint will not withstand a motion to dismiss if the facts alleged do

not state “a legally cognizable cause of action.” Turner v. J.P. Morgan Chase & Co., No. 14-7148,

2015 WL 12826480, at *2 (D.N.J. Jan. 23, 2015).

To determine a complaint’s sufficiency, the Third Circuit requires a three-part inquiry: (1)

the court must first recite the elements that must be pled in order to state a claim; (2) the court

must then determine which allegations in the complaint are merely conclusory and therefore need

not be given an assumption of truth; and (3) the court must “assume the[ ] veracity” of well-pleaded

factual allegations and ascertain whether they plausibly “give rise to an entitlement for relief.”

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (citation modified).

III. DISCUSSION

Defendants raise numerous arguments in support of their motion to dismiss the Amended

Complaint. First, Defendants argue Plaintiffs’ free speech claims against Stack fail because the

distribution of political handbills on behalf of a re-election campaign does not constitute an action

taken by a “state actor” under the “color of law” because the “right to be let alone” does not exist

under First Amendment jurisprudence or corresponding New Jersey law. (See Br. at 14-22).4 Next,

Defendants assert Plaintiffs’ other constitutional claims against Stack and Velazquez in their

official capacities are duplicative of claims against Union City and therefore fail as a matter of law.

(See id. at 21-22). Notwithstanding the substance of Plaintiffs’ constitutional claims, Defendants

contend the claims brought against Stack and Velazquez in their individual capacities should be

dismissed because they are entitled to qualified immunity. (See id. at 27-30). Moreover,

Defendants argue the claims against Union City must be dismissed because Plaintiffs fail to

identify any “custom” or “policy” that led to these alleged constitutional deprivations, which is

a required element to establish Section 1983 liability against a municipality. (See id. at 22-24).

Further, Defendants assert any claim based on Defendants’ unreasonable or unauthorized entry

into Plaintiffs’ boiler room fails because such action was protected under the emergency aid

doctrine. (See id. at 24-27). Finally, Defendants assert that there is no private right of action for

Plaintiffs to assert violations of Union City’s Municipal Code. (See id. at 30-33). In their

opposition, Plaintiffs challenge each of these arguments. (See Opp’n at 7-19). The Court addresses

each argument in turn.

4 For sake of clarity, when citing the parties’ briefs and supporting documents, the Court cites to the page number

listed in the ECF header. If there is no page number listed in the ECF header, the Court cites to the page number listed

in the respective document.

A. Plaintiffs Fail to Plead Viable Free Speech Claims (Counts I and V).

Counts I and V allege that Stack’s distribution of political handbills on behalf of his re-

election campaign violated Plaintiffs’ right to be let alone under the free speech protections of the

First Amendment and the New Jersey State Constitution. (See Am. Compl. ¶¶ 39-52, 80-87). Count

I is brought pursuant to Section 1983, while Count V is brought pursuant to the New Jersey Civil

Rights Act (“NJCRA”), N.J. Stat. Ann. § 10:6-1, et seq.5

Defendants contend Counts I and V fail because Stack was not acting as a state actor when

engaging in campaign activities and therefore do not constitute actions taken under color of state

law. (See Br. at 14-17). In opposition, Plaintiffs contend Stack engaged in a pattern of official

misconduct distinguished from involving purely private political activity, which constitutes misuse

of power “‘possessed by virtue of state law and made possible only because the wrongdoer is

clothed with the authority of state law,’” ergo state action. (See Opp’n at 7-9 (quoting United States

v. Classic, 313 U.S. 299, 326 (1941)). The Court agrees with Defendants and dismisses Counts I

and V.

Section 1983 provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress[.]

42 U.S.C. § 1983.

5 In the Amended Complaint, Plaintiffs allege “Two weeks after filing the complaint against Velazquez, Salvador

alleges that she received a telephone call from Mayor Stack during which he ‘raised his voice and used offensive

language towards her.’” (Am. Compl. ¶ 17). Though Plaintiffs do not specifically assert a claim based on the alleged

behavior, the Court clarifies that “[i]t has been long recognized that mere verbal threats, in and of themselves, do not

give rise to constitutional violations, and are thus not actionable under § 1983.” Jones v. Murphy, No. 19-21629, 2022

WL 1229515, at *5 (D.N.J. Apr. 26, 2022) (“[M]ere verbal harassment or even threats, without more, do not give rise

to constitutional violations, and are thus not actionable under § 1983.” (citing Callaway v. Small, 576 F. Supp. 3d 232,

244 (D.N.J. 2021))).

To state a claim under Section 1983, “a plaintiff must allege the violation of a right secured

by the Constitution and laws of the United States[ ] and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)

(citation modified); Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). Modeled on Section 1983,

the NJCRA “creates a private cause of action for violations of civil rights secured under the New

Jersey Constitutions.” Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011) (citation

modified). The NJCRA was “designed as a State analog to the federal civil rights statute codified at

42 U.S.C.A § 1983 and was intended to address potential gaps in remedies available under New

Jersey law but not cognizable under the federal civil rights law, Section 1983.” Perez v. Zagami,

LLC, 94 A.3d 869, 875 (N.J. 2014) (citation modified). Thus, claims brought pursuant to the

NJCRA are analyzed under the same legal framework applicable to those brought pursuant to

Section 1983.6 See Trafton, 799 F. Supp. 2d at 443-44.

Accordingly, to state a claim for relief under Section 1983 or the NJCRA, a plaintiff must

sufficiently allege “that the defendant acted under color of state law to deprive the plaintiff of a right

secured by the Constitution.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (citing West,

487 U.S. at 48). As the Third Circuit has explained, “‘[t]he color of state law element is a threshold

issue; there is no liability under § 1983 for those not acting under color of law.’” Bates v. Paul

Kimball Hosp., 346 F. App’x 883, 887 (3d Cir. 2009) (quoting Groman v. Twp. of Manalapan, 47

6 The plain language of the NJCRA imposes liability on any “person” who violates a plaintiff’s civil rights under color

of law. In particular, the NJCRA provides in relevant part that:

Any person who has been deprived of any . . . rights . . . secured by the Constitution or laws of the

United States, or . . . by the Constitution or laws of this State, or whose exercise or enjoyment of

those substantive rights, privileges or immunities has been interfered with or attempted to be

interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring

a civil action for damages and for injunctive or other appropriate relief.

N.J. Stat. Ann. § 10:6-2(c) (emphasis supplied); Didiano v. Balicki, 488 F. App’x 634, 637 (3d Cir. 2012).

F.3d 628, 638 (3d Cir. 1995)). In other words, if a defendant fails to act under color of state law

when engaged in the alleged misconduct, a civil rights claim under Section 1983 fails as a matter

of jurisdiction, see Polk Cnty. v. Dodson, 454 U.S. 312, 315 (1981), and there is no need to

determine whether a federal right has been violated. Rendell-Baker v. Kohn, 457 U.S. 830, 838

(1982).

The “under color” requirement in cases arising under Section 1983 “has consistently been

treated as the same thing as the ‘state action’ required under the Fourteenth Amendment.” United

States v. Price, 383 U.S. 787, 794 n.7 (1966). Accordingly, before liability under Section 1983

attaches, the complained of conduct must be “fairly attributable to the State.” Lugar v. Edmondson

Oil Co., 457 U.S. 922, 937 (1982).

Conduct will be fairly attributable to the state in each of the following two circumstances:

(a) the individual or entity charged is a state actor, or (b) “there is a sufficiently close nexus

between the State and the challenged action of the regulated entity so that the latter may be fairly

treated as that of the State itself.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 41

(1999) (citation modified); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 620

(1991) (“[G]overnmental authority may dominate an activity to such an extent that its participants

must be deemed to act with the authority of the government . . . .”). A sufficiently close nexus

between a non-state actor and a state actor requires more than the state’s “[m]ere[ ] approv[al] of

or acquiesce[nce] in the initiatives of a private party”; rather, to be held responsible for private

activity, a state must exercise “coercive power or ... provide[ ] such significant encouragement,

either overt or covert, that the choice must in law be deemed to be that of the state.” Blum v.

Yaretsky, 457 U.S. 991, 1004-05 (1982) (citation modified).

On the other hand, if the accused party or entity is not a state actor, Section 1983 cannot

be implicated. Indeed, “merely private conduct, no matter how discriminatory or wrongful,” does

not fall within the ambit of Section 1983. Sullivan, 526 U.S. at 49-50 (citation modified); see also

National Collegiate Ath. Ass’n v. Tarkanian, 488 U.S. 179, 191 (1988) (“As a general matter[,]

the protections of the Fourteenth Amendment do not extend to private conduct abridging

individual rights.”) (citation modified); Edmonson, 500 U.S. at 620 (“[T]he conduct of private

parties lies beyond the Constitution’s scope in most instances”).

The core issue before the Court, therefore, is whether Stack’s campaign activities

constituted private conduct. Courts have dismissed Section 1983 claims brought against private

parties acting on behalf of a political campaign. See, e.g., Max v. Republican Comm. of Lancaster

Cnty., 587 F.3d 198, 199-200, 202 (3d Cir. 2009) (finding Republican Committee of Lancaster

County was not a state actor where it attempted to prevent a Republican committeewoman from

campaigning for an unendorsed Republican candidate); Neuman v. Ocean Cnty. Democratic Cnty.

Comm., No. 16-2701, 2017 WL 396443, at *5 (D.N.J. Jan. 30, 2017) (concluding the Democratic

County Committee’s candidate selection process did not constitute state action); Valenti v. Pa.

Democratic State Comm., 844 F. Supp. 1015, 1019-20 (M.D. Pa. 1994) (determining the

Pennsylvania Democratic State Committee was not acting under color of state law where

Committee prohibited candidates for Democratic nomination from distributing literature because

the conduct concerned internal party matters). As expressed supra, Section 1983 requires Stack to

have been acting under the color of state law. See Fiscella v. Twp. of Belleville, No. 16-760, 2016

WL 7015627, at *3 (D.N.J. Dec. 1, 2016) (“Although a public employee generally acts under color

of state law while acting in his official capacity or while exercising his responsibilities pursuant

to state law[,] a state employee or officer whose purely private acts were not furthered by any

actual or purported state authority will not be found to have acted under color of state law.”)

(citation modified).

Plaintiffs’ efforts to categorize its allegations as a “pattern of official misconduct [that]

distinguishes this case from those involving purely private political activity” is unavailing. (Opp’n

at 15). As Defendants correctly note, courts across the country have found public officials who are

engaging in political campaigning are acting in their private capacity and have declined to find

their conduct actionable under Section 1983. See Reardon v. Danley, 74 F.4th 825, 828 (7th Cir.

2023) (finding a public official did not act under color of state law where there were no allegations

that the removal of campaign signs from a resident’s lawn prior to the election “was related to his

position as a Coles County Board member, or that he possessed any State authority to remove it”

(citing First Midwest Bank v. City of Chicago, 988 F.3d 978, 986 (7th Cir. 2021))); Campbell v.

Reisch, 986 F.3d 822, 823, 826 (8th Cir. 2021) (finding a Missouri state senator did not act under

color of state law by blocking a constituent from a Twitter page that she created to announce her

candidacy for office because the Twitter account was created as a campaign tool prior to being

elected and she continued to use it “overwhelmingly for campaign purposes” after her election);

Acosta v. Democratic City Comm., 288 F. Supp. 3d 597, 631-32 (E.D. Pa. 2018) (finding the

Democratic Committee was acting as a private organization and not under color of state law where

leaders were distributing literature and entering polling locations); Krupa v. Quinn, 596 F. Supp.

3d 1127, 1138 (N.D. Ill. 2022) (“[C]ampaigning for reelection is private activity, unrelated to an

official’s state-sanctioned duties.”) (collecting cases); cf. Callaway, 576 F. Supp. 3d at 244 n.7

(“An individual need not be an elected official to campaign for election, and the Court’s research

did not identify any official duty that requires elected officials to campaign for reelection.”).

As such, Stack’s distributions of political handbills at the Property constitutes a private

action, not a “state action” per Section 1983. See Waters v. City of Morristown, TN, 242 F.3d 353,

359 (6th Cir. 2001) (“[A] defendant’s private conduct, outside the course or scope of his duties

and unaided by any indicia of actual or ostensible state authority, is not conduct occurring under

color of state law.”) (collecting cases). Because merely private conduct is not actionable under

Section 1983, Count I must be dismissed.

Further, because the Court has already determined that Plaintiffs have not sufficiently

stated a claim under the federal Constitution, and because courts interpret the New Jersey

Constitution analogously to the federal Constitution, see Trafton, 799 F. Supp. 2d at 443-44, the

Count V similarly fails. Because Plaintiffs do not sufficiently allege any action under “color of

law,” there is no need to determine whether a federal right has been violated. Rendell-Baker,

457 U.S. at 838.

Accordingly, the Court will dismiss Count I and V for failure to plead Stack acted under

color of state law.

B. Plaintiffs Fail to Plead Viable Claims Based Upon the Unauthorized Search

and Issuance of Health Code Violations (Counts II, III, IV, and VI).

Through Counts II, III, IV and VI, Plaintiffs allege that Defendants conducted an

unreasonable search by entering the Property’s boiler room in violation of the Fourth Amendment

and Article IV of the New Jersey State Constitution and the issuance of “multiple continuing health

department violations against Plaintiff without proper justification.” (See Am. Compl. ¶¶ 53-79,

88-93).

Defendants argue Counts II and VI should be dismissed because Plaintiffs fail to account

for the exigent circumstances that necessitated entry into the boiler room. (Br. at 24-26). In

opposition, Plaintiffs contend the emergency aid doctrine does not apply to the allegations set forth

in the Amended Complaint. (See Opp’n at 15-17). As Counts II, III, IV, and VI are all premised

on Defendants’ search of the Property, the Court addresses the Counts together for purposes of

this Opinion. As Plaintiffs fail to allege a constitutional violation, the Court dismisses Counts II,

III, IV and VI.

“‘The emergency aid doctrine is derived from the commonsense understanding that exigent

circumstances may require public safety officials, such as the police, firefighters, or paramedics,

to enter a dwelling without a warrant for the purpose of protecting or preserving life, or preventing

serious injury.’” State v. Hathaway, 120 A.3d 155, 164 (N.J. 2015) (quoting State v. Frankel, 847

A.2d 561, 568 (N.J. 2004)); see Kentucky v. King, 563 U.S. 452, 460 (2011) (“Under the

‘emergency aid’ exception, . . . ‘officers may enter a home without a warrant to render emergency

assistance to an injured occupant or to protect an occupant from imminent injury.’” (quoting

Brigham City v. Stuart, 547 U.S. 398, 403 (2006))). The emergency aid doctrine “does not depend

on an officer’s subjective intent or the seriousness of any crime they are investigating when the

emergency arises.” Michigan v. Fisher, 558 U.S. 45, 47 (2009) (citing Mincey v. Arizona, 437 U.S.

385, 404-05 (1978)).

Under the emergency aid doctrine, the plaintiff must show “‘(1) the officer had an

objectively reasonable basis to believe that an emergency require[d] that he [or she] provide

immediate assistance to protect or preserve life, or to prevent serious injury and (2) there was a

reasonable nexus between the emergency and the area or places to be searched.’” Hathaway, 120

A.3d at 164 (first alteration in original) (quoting State v. Edmonds, 47 A.37 737, 745 (N.J. 2012)).

In the Amended Complaint, Count II is raised pursuant to the First Amendment and Section

1983, Count III is raised pursuant to the Fourth Amendment and Section 1983, Count IV is raised

pursuant to the Fourteenth Amendment and Section 1983, and Count VI is raised pursuant to the

New Jersey State Constitution and the NJCRA. (See Am. Compl. ¶¶ 53-79, 88-93). As stated

supra, in order to state a claim under Section 1983, “a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States[.]” West, 487 U.S. at 48 (citation modified).

Additionally, NJCRA claims are analyzed under the same legal framework applicable to those

brought pursuant to Section 1983. See Trafton, 799 F. Supp. 2d at 443-44.

Before the Court addresses whether the emergency aid doctrine applies, the Court must

consider whether Plaintiffs have alleged a constitutional violation based on the alleged

unreasonable search. The Court finds Plaintiffs have failed to set forth sufficient factual allegations

for the Court to decipher whether Defendants unreasonably searched the Property.

According to the Amended Complaint, “the outside temperature in Union City [on October

31, 2023] was recorded as over 52 degrees.” (Am. Compl. ¶ 30). Around 9:00 AM, Plaintiffs

received notice “by a Union City Health Inspector that one of the apartments in the Property was

experiencing a lack of heat.” (Id. at ¶ 29). Plaintiffs allege an agent who responded to the Property

on their behalf found the boiler to be in “good working order.” (Id. at ¶ 31). Under Union City

Municipal Code § 329-9, if a boiler is found to be malfunctioning, the property owner has 24 hours

from receiving notice to make repairs. (Id. at ¶ 32). Section 32-10 only authorizes the Health

Inspector to arrange repairs after this 24-hour period has passed and requires that the tenant must

have made a bona fide attempt to inform the landlord before lodging a complaint. (Id. at ¶ 33).

Nevertheless, at approximately 6:00 p.m., Plaintiffs allege that UCPD officers “entered the

Property and broke into four boiler rooms without authorization.” (Id. at ¶ 34).

The Court notes that whether the boiler was in “good working order” alone does not

establish a lack of authorization for the entry. Plaintiffs’ allegations do not address or challenge,

however, whether the Union City Health Inspector received a no heat complaint or whether in fact

an apartment was without heat. Without such allegations, Plaintiffs’ assertion that entry into the

Property was without authorization lacks sufficient factual basis “to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly,

550 U.S. at 556). Similarly, Plaintiffs’ allegations about the issuance of “multiple continuing health

department violations against Plaintiff without proper justification,” (see, e.g., Am. Compl. ¶¶ 59,

75), are without factual content that would allow the Court to draw any inference whether

Defendants engaged in such conduct or whether such conduct was in fact improper. Moreover,

Plaintiffs’ allegation that “the UCPD was seen taking pictures of the Property and physically

checking doors to see if they were locked – all without authorization,” (see id. at ¶ 69), lacks factual

support to infer why such actions constitute culpable conduct.

Therefore, the Court finds Counts II, III, IV and VI fail to plead cognizable claims of

constitutional violations. As such, the Court will not consider whether the emergency aid doctrine

applies at this juncture. Accordingly, the Court dismisses Counts II, III, IV and VI without

prejudice.7

C. Plaintiffs Have No Legal Basis to Claim an Implied Private Right of Action

Under the Union City Municipal Code (Counts VII and VIII).

Finally, Defendants contend Plaintiffs’ Union City Municipal Code claims must be

dismissed because neither of the sections relied upon in the Municipal Code provide them with a

private right of action to raise these claims. (Br. at 30-33). In opposition, Plaintiffs argue “the

7 “[A] municipality can only be liable under Section 1983 when a constitutional injury results from the

implementation or execution of an officially adopted policy or informally adopted custom.” Wilson v. City of Phila.,

177 F. Supp. 3d 885, 908 (E.D. Pa. 2016) (citing Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)). To

state a claim for municipal liability, plaintiffs must allege “(1) an underlying constitutional violation; (2) a policy or

custom attributable to the municipality; and (3) that the constitutional violation was caused by the municipality’s

policy or custom” or deliberate indifference to the constitutional rights of others. Id. (citing Monell v. N.Y.C. Dep’t

of Soc. Servs., 436 U.S. 658, 694 (1978)); Taylor v. Pa., No. 17-3369, 2018 WL 6574187, at *7 (E.D. Pa. Dec. 12,

2018) (citation modified); Callaway, 576 F. Supp. 3d at 248. Because Plaintiffs fail to adequately allege the first

prong, the Court need not engage in further analysis under Monell. See Rendell-Baker, 457 U.S. at 838.

Similarly, to determine whether a state official is entitled to qualified immunity, “courts engage in a two-pronged

inquiry: (1) whether the plaintiff sufficiently alleged the violation of a constitutional right, and (2) whether the right

was ‘clearly established’ at the time of the official’s conduct.” L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 241 (3d

Cir. 2016) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009). Because Plaintiffs fail to sufficiently allege the

“constitutional violation” prong, the Court does not engage in further analysis of qualified immunity.)

Amended Complaint creates a plausible basis for finding an implied private right of action.”

(Opp’n at 17-19). The Court agrees with Defendants and dismisses Counts VII and VIII.

Generally, New Jersey courts “‘have been reluctant to infer a statutory private right of

action where the Legislature has not expressly provided for such action.’” Medical Soc’y of N.J.

v. AmeriHealth HMO, Inc., 868 A.2d 1162, 1168 (N.J. Super Ct. App. Div. 2005) (quoting R.J.

Gaydos, Ins. Agency, Inc. v. Nat’l Cons. Ins. Co., 773 A.2d 1132, 1142 (N.J. 2001)).

“Compounding that reluctance here, federal courts will generally avoid expanding state-law

liability in ways not foreshadowed by state-court precedent.” MHA, LLC v. Amerigroup Corp.,

539 F. Supp. 3d 349, 354 (D.N.J. 2021) (citing City of Phila. v. Beretta U.S.A. Corp., 277 F.3d

415, 421 (3d Cir. 2002)). “It follows that federal courts ‘should be even less inclined’ than state

courts to imply private rights of action from state statutes and regulations.” Id. at 354-55 (quoting

Beye v. Horizon Blue Cross Blue Shield of N.J., 568 F. Supp. 2d 556, 571-72 (D.N.J. 2008)).

To decide whether to imply a private right of action from a statute, New Jersey courts use

a three-part test adopted from Cort v. Ash, 422 U.S. 66, 78 (1975). See Jarrell v. Kaul, 123 A.3d

1022, 1029 (N.J. 2015). Courts may assess whether an implied private right of action exists by

considering:

(1) whether [the] plaintiff is a member of the class for whose special benefit the

statute was enacted; (2) if there is any evidence that the Legislature intended to

create a private right of action under the statute; and (3) whether recognition of an

implied right of action would be consistent with the purposes of the legislation.

Warren Cnty. Bar Ass’n v. Bd. of Chosen Freeholders, 899 A.2d 1028, 1031 (N.J. Super. Ct. App.

Div. 2006) (citing R.J. Gaydos Ins. Agency, Inc., 773 A.2d at 1142), certif. denied, 907 A.2d 1014

(N.J. 2006).8 “New Jersey courts apply this test against a general background reluctance to imply

8 The test has similarly been enunciated as whether

a private right of action.” MHA, 539 F. Supp. 3d at 354 (citing Gaydos, 773 A.2d at 1142).

With respect the first factor of the test, Chapter 1, Article III, Section 18 of the Union City

Municipal Code provides that “[w]here a violation of this Code is found to exist, a written notice

from the enforcing official shall be served on the person or persons responsible for the correction

thereof.” (Declaration of Mauro G. Tucci (“Tucci Decl.”), ECF No. 23-2, Ex. A at 4) (emphasis

added).9 This provision shows that the default for enforcement is by an “enforcing official”, i.e.,

a public official, as opposed to a private citizen. Plaintiffs fail to point the Court to any provisions

to support concluding otherwise. As such, the first factor weighs against providing a private right

of action under Chapter 208 or 329.

As to the second factor, there is no evidence to suggest that Union City intended to afford

citizens with a private right of action under Chapters 208 and 329. (See Tucci Decl., Ex. B). Upon

review of the Union City Municipal Code, it is evident that Union City has expressly provided for

a private right of action in specific chapters and sections but omitted such right in others. (Compare

id. (no express private right of action), with Tucci Decl., Ex. C (providing that private citizens may

enforce Union City’s ordinances regarding political contributions)). For instance, the language of

Chapter 22, Section 9 of the Union City Municipal Code provides, in relevant part, that

every person aggrieved by a violation of the chapter, or any taxpayer or resident of

the City of Union City has the right, consistent with the Rules of Court, to file

charges in a court of competent jurisdiction and/or to pursue a civil action for a

violation of this chapter in a court of competent jurisdiction, and to seek and obtain

(1) the plaintiff is “one of the class for whose especial benefit the statute [or regulation] was

enacted,” (2) “there is any evidence that the Legislature [or agency with delegated authority]

intended to create a private cause of action,” and (3) “implication of a private cause of action in this

case would be consistent with the underlying purposes of the legislative scheme.”

MHA, 539 F. Supp. 3d 349, 354 (D.N.J. 2021) (quoting Jarrell, 123 A.3d at 1029).

9 In considering a motion to dismiss, the reviewing court examines the “complaint, exhibits attached to the complaint,

[and] matters of public record,” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar.

Corp. v. White Consol. Indus. Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)), we can also consider documents “that a

defendant attaches as an exhibit to a motion to dismiss,” Pension Benefit Guar. Corp., 998 F.2d at 1196, if they are

“undisputedly authentic” and “the [plaintiff’s] claims are based [on them],” Mayer, 605 F.3d at 230 (citing Pension

Benefit Guar. Corp., 998 F.2d at 1196).

declaratory, injunctive, or other legal or equitable relief, including but not limited

to attorneys’ fees and costs, arising from or related to a violation of this chapter.

(Tucci Decl., Ex. C at 30)

The Court finds the omission of any private right of action in Chapters 208 and 329, but

inclusion in Chapter 22, indicates Union City did not intend to provide citizens with a private right of

action with respect to Chapters 208 and 329. See Fuster v. Twp. of Chatham, 328 A.3d 894, 902 (N.J.

2025) (“‘There is no more persuasive evidence of legislative intent than the words by which the

Legislature undertook to express its purpose . . . .’” (quoting Perez, 94 A.3d at 873); DiProspero v.

Penn, 874 A.2d 1039, (N.J. 2005) (“We ascribe to the statutory words their ordinary meaning and

significant and read them in context with related provisions so as to give sense to the legislation as a

whole.”) (citation modified) (emphasis added). Accordingly, the Court finds the second factor also

weighs against finding a private right of action under Chapter 208 or 329.

Finally, in considering the third factor, the Court does not believe providing a private right of

action for either Chapter 208 or 329 would not be consistent with the legislative scheme of Union

City’s municipal ordinances. “The general rule is that the enforcement of ordinances is a

governmental function and, in the absence of a statute imposing a liability, a municipality is not

liable for failure to enforce ordinances which have been enacted.” Lanni v. City of Bayonne, 72

A.2d 397, 398 (N.J. Super. Ct. App. Div. 1950) (citation modified). As discussed supra, this is

evident in Chapter 1, Article III, Section 18 of the Union City Municipal Code whereby it provides

that “[w]here a violation of this Code is found to exist, a written notice from the enforcing official

shall be served on the person or persons responsible for the correction thereof.” (Tucci Decl., Ex.

A, ECF No. 23-2 at 4) (emphasis added). Accordingly, the Court finds the third factor weights

against finding a private right of action under Chapter 208 or 329.

Therefore, as all three factors weigh against Plaintiffs, the Court declines to find an implied

right of action under Chapters 208 or 329. As such, the Court will dismiss Counts VII and VIII of

the Amended Complaint with prejudice.

IV. CONCLUSION

For the reasons set forth above, Defendants’ motion to dismiss (ECF No. 23) is

GRANTED, and the Amended Complaint (ECF No. 14) is DISMISSED without prejudice,

except for Counts VII and VIII, which are DISMISSED with prejudice. An appropriate Order

accompanies this Opinion.

DATED: June 30, 2025 JULIEN XAVIER NEALS