SCHWESTER v. BOROUGH OF FAR HILLS

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHARLES SCHWESTER,

Plaintiff,

Civil Action No. 25-00007 (GC) (RLS)

v.

BOROUGH OF FAR HILLS, et al., OPINION

Defendants.

CASTNER, District Judge

THIS MATTER comes before the Court upon Defendants Borough of Far Hills, Kevin

Welsh, Sheila Tweedie, Mary Chimenti, Michael DeCarolis, and Dorothy Hicks’ Motion to

Dismiss Plaintiff Charles Schwester’s Complaint pursuant to Federal Rule of Civil Procedure

(Rule) 12(b)(6). (ECF No. 3.) Plaintiff opposed (ECF No. 4), and Defendants replied (ECF No.

5). The Court has carefully considered the parties’ submissions and decides the matter without

oral argument pursuant to Rule 78(b) and Local Civil Rule 78.1(b). For the reasons set forth below,

and other good cause shown, the Motion to Dismiss is GRANTED.

I. BACKGROUND1

Since becoming a resident of the Borough of Far Hills in 2018, Plaintiff has “attended all

of the meetings of the Borough Council . . . and Far Hills Planning Board.” (ECF No. 1 ¶ 16.)

During these meetings, Plaintiff and other attendees have “regularly made their views and concerns

1 On a motion to dismiss under Rule 12(b)(6), the Court must accept all facts as true, but

courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotations omitted).

known by voicing them” through the five-minute public comment portion of the meetings.2 (Id.

¶¶ 17, 19.) This case stems from two incidents: (1) an altercation at a Borough Council meeting

between Plaintiff and several Board Council members which ultimately led to Plaintiff’s arrest,

and (2) an issue with Plaintiff’s primary election ballot for a seat on the Borough Council. (Id.

¶ 1.)

As relevant here, in February 2022, Far Hills approved the construction of a new housing

development on a 42-acre tract of land, which would consist of 105 townhomes and 29 apartments

and would address the Borough’s affordable housing obligations. (Id. ¶¶ 21-22.) Pulte Homes of

New Jersey was the proposed contractor for the development, while Melillo Equities, the owner

of the 42-acre tract of land, would own and lease the townhomes and apartments built on the

property. (Id. ¶ 23.)

Plaintiff attended multiple Borough Council meetings in which the new development was

discussed. (Id. ¶ 24.) During these meetings, Plaintiff “made various suggestions, including that

Far Hills should work with third parties experienced in building affordable housing developments

to fully understand and consider all construction and financial options so that it could opt for the

alternative that would best benefit Far Hills.” (Id.) The Complaint alleges that when Plaintiff

“raised questions regarding the [d]evelopment and criticized Borough Council members’

positions, the public comment portion of the . . . meetings often became heated and rife with

disagreement.” (Id. ¶ 25.) Some of the concerns Plaintiff raised include environmental impacts

associated with the development, increase in traffic, and “personal and professional relationships

with the builder of the [d]evelopment” being placed ahead of “the concerns and wellbeing of the

2 “During Borough Council meetings, attendees who wished to speak were generally

provided with a five-minute allotment of time to do so.” (ECF No. 1 ¶ 19.)

citizens of Far Hills.” (Id. ¶ 26.) The Complaint further asserts that Plaintiff “consistently

questioned the fiscal motives of Borough Council members.” (Id. ¶ 18.)

On February 13, 2023, the Borough Council, comprised of Kevin Welsh, Sheila Tweedie,

and Mary Chimenti, scheduled a vote on an ordinance related to the new development. (Id. ¶ 51.)

According to the Complaint, “[w]hen the Borough Council learned that such a large number of

citizens planned on attending the meeting, the vote on the proposed ordinance was removed from

the agenda.” (Id. ¶ 52.) Despite the vote being removed from the agenda, the meeting still occurred

on February 13, 2023.3 (Id. ¶ 53.)

Approximately thirty minutes into the meeting, Plaintiff requested that Michael DeCarolis,

the Chief of Police for Far Hills, not interrupt comments being made by attendees on the ordinance

issue and specifically stated, “there’s no violence here, Michael.” (Id. ¶ 54.) One of the attendees

spoke for just under five minutes and was not given a four-minute warning that her time was going

to expire. (Id. ¶ 55.) During Plaintiff’s public comments period, Dorothy Hicks, the Borough

administrator for Far Hills, notified Plaintiff at four minutes that he had one minute left. (Id. ¶ 56.)

In response to Hicks’ comment, Plaintiff stated: “Shhh. You’re not going to shut me off. . . . You

can keep your mouth shut. I don’t want to hear from you.” (ECF No. 3-1, Ex. C.) The council

members immediately admonished Plaintiff, but nevertheless permitted Plaintiff to continue

speaking. (Id.) After relaying to Plaintiff that his comments related to a report associated with the

new development—an issue that the Borough Council was not addressing at this particular

3 The Court is in receipt of the recording and transcript of the February 13, 2023 meeting,

which was submitted with Defendants’ Motion. (See ECF No. 3-1, Exs. B & C.) The Court takes

judicial notice of the recording. See Brito v. LG Elecs. USA, Inc., Civ. No. 22-5777, 2023 WL

2675132, at *1 n.3 (D.N.J. Mar. 29, 2023) (“A court may [] consider any document integral to or

relied upon in the Complaint and take judicial notice of matters of public record.”). The Court has

reviewed the recording. The Plaintiff also relies on the recording. (See ECF No. 4 at 6.)

meeting—council members indicated that Plaintiff’s tone was “aggressive and uncalled for,” to

which Plaintiff responded, “too bad.” (Id.) The following exchange then ensued:

Plaintiff: [I]t’s about time somebody told you who you were.

It’s not gonna end here. Trust me. The storm is

coming. You’re going down, all three of you’s.

Council: Is that a threat?

. . . .

Plaintiff: You’re going down, politically you’re going down.

I’m sick of this with you three.

(Id.)

Later in the meeting, the Borough Council permitted Plaintiff to speak again. (ECF No. 1

¶ 62.) Plaintiff’s comments spanned approximately three and a half minutes, and Hicks did not

tell Plaintiff that his time was going to run out soon. (Id.) After the meeting was adjourned and

moved into executive session, and as attendees were walking out Plaintiff stated the following to

the Borough Council: “Thank you for being Far Hills patriots. You three, you’re going . . . to be

exposed and . . . the storm is coming, trust me. The storm is coming. You’re going down.” (ECF

No. 3-1, Ex. C; ECF No. 1 ¶¶ 65-66.) The Borough Council then discussed whether Plaintiff’s

comments were a threat. (ECF No. 3-1, Ex. C.) One of the members of the Borough Council

states “this is fun” and then starts laughing. (Id.)

According to the Complaint, Chief DeCarolis approached the Borough Council and asked

if they felt threatened. (ECF No. 1 ¶ 67.) Chief DeCarolis then arrested Plaintiff shortly after and

transported him to the Far Hills Police Station for processing. (Id. ¶ 70.) As alleged in the

Complaint, “Far Hills and DeCarolis did not routinely arrest citizens who attended Borough

Council meetings and spoke during the public comments portions of these meetings even if the

comments were impassioned, controversial, or provocative.” (Id. ¶¶ 123, 136.) Nor did “Far Hills

and DeCarolis . . . routinely charge [citizens attending these meetings] with harassment.” (Id.

¶ 124.)

Once at the police station, Plaintiff was searched, photographed, and ultimately detained

for approximately one hour. (Id. ¶ 71.) The Complaint further asserts that Plaintiff was handcuffed

while in custody, although it is unclear at which points he was handcuffed. (Id.)

On February 14, 2023, Plaintiff was charged with harassment in violation of N.J. Stat. Ann.

§ 2C:33-4(a), a petty disorderly persons offense. (Id. ¶ 74.) The criminal complaint provides:

“With purpose to harass another, make or cause to be made a communication or communications

in offensively coarse language, specifically by advising Far Hills Borough Council Officials that

‘[y]ou’re all going down, all three of ya’s.’” (Id.) The Affidavit of Probable Cause, a component

of the criminal complaint, was left blank. (See ECF No. 1 at 41-42.4)

Following the charges, Plaintiff filed a motion challenging the probable cause for his arrest.

(ECF No. 1 ¶ 80.) The State opposed Plaintiff’s motion, and Chimenti and Tweedie both submitted

emails in support of the prosecution. (Id. ¶ 81.) According to the Complaint, Tweedie’s email

“confirm[ed] her belief that the comments [Plaintiff] made at the February 13, 2023 Borough

Council meeting stemmed from her vote ‘to not support a candidate that he wanted to see elected

to Council.’” (Id. ¶ 83.) The former mayor of Far Hills, Paul Vallone, also wrote to the municipal

court, but in support of Plaintiff:

[Plaintiff has been] a resident of Far Hills for [some time,] and has

attended nearly every Council meeting over the last 4 years. He has

appeared before me nearly 100 times to express his pleasure or

displeasure with [a]genda [i]tems that [affect] Far Hills as have

many of our residents. At no time has he ever charged the [dais],

thrown items at myself or any of the 6 council members, nor has he

4 Page numbers for record cites (i.e., “ECF Nos.”) refer to the page numbers stamped by the

Court’s e-filing system and not the internal pagination of the parties.

ever [p]hysically or [v]erbally threatened to physically harm myself

or the Council members that I can recall in any way.

(Id. ¶ 84.) The Complaint also asserts that Vallone “hinted in his letter . . . that [Plaintiff] was

being singled out, writing that if the Far Hills police ‘were to arrest all who spoke sharply and

briskly, half of Far Hills would be before you.’” (Id. ¶ 85.)

Ultimately, the municipal court determined that Chief DeCarolis did have probable cause

to arrest Plaintiff. (Id. ¶ 90.) On October 7, 2023, the State submitted a letter to the municipal

court judge indicating that it intended to dismiss the harassment charge on the grounds that

Plaintiff’s comments at the February 13, 2023 meeting were political speech. (Id. ¶ 92.) The State

reiterated this position at a hearing held the same day and moved to dismiss the harassment charge.

(Id. ¶ 93.) On October 8, 2024, the municipal court “expunged the harassment charge from

[Plaintiff’s] record.” (Id. ¶ 94.)

Aside from the altercation on February 13, 2023, the Complaint asserts that following

Plaintiff’s participation in the various Borough Council meetings addressing the new development,

Far Hills citizens urged Plaintiff to run for a seat on the Borough Council. (Id. ¶ 30.) Plaintiff

decided to run and made it public knowledge before 2023 that he would run for one of three open

seats in the next primary election scheduled for June 6, 2023. (Id. ¶¶ 30-31.) Plaintiff was

challenging Tweedie for her seat on the Borough Council. (Id. ¶ 100.) According to the

Complaint, “Hicks, Welsh[,] and Chimenti were known supporters of Tweedie and her reelection

campaign.” (Id.)

On March 27, 2023, the day candidates were required to submit nominating petitions to

run for a Borough Council seat, Plaintiff submitted his petition to Hicks. (Id. ¶¶ 32-33.) Hicks

found a defect in Plaintiff’s petition but permitted him to correct the defect. (Id. ¶¶ 34-35.)

According to the Complaint, after Plaintiff corrected the defect in his petition and Hicks informed

him that the petition was acceptable, Hicks sent Plaintiff a letter advising him that there was

another defect with the petition; Hicks, did not permit Plaintiff to correct the defect as the deadline

passed. (Id. ¶¶ 39-40.) This issue was eventually corrected after a state court determined that

Plaintiff would be permitted to correct the additional defect. (Id. ¶¶ 41-49.) Ultimately, Plaintiff

finished second in the primary election and Tweedie finished third. (Id. ¶ 50.)

Moreover, the Complaint indicates that Plaintiff ran unopposed in the general election and

won a seat on the Borough Council. (Id. ¶ 95.) Plaintiff was sworn in for his term on January 2,

2024. (Id. ¶ 96.)

On January 2, 2025, Plaintiff filed suit against the Borough of Far Hills, Kevin Welsh,

Sheila Tweedie, Mary Chimenti, Michael DeCarolis, and Dorothy Hicks for violations of his

constitutional rights under 42 U.S.C. § 1983 and the New Jersey Civil Rights Act (NJCRA), N.J.

Stat. Ann. § 10:6-1 et seq.5 (ECF No. 1.) The Complaint asserts nine counts: a First Amendment

violation (free assembly) (Count 1); Article I, Section 18 violation of the New Jersey Constitution

(free assembly) (Count 2); a First Amendment violation (retaliation) (Count 3); Article I, Section

6 violation of the New Jersey Constitution (retaliation) (Count 4); a Fourth Amendment violation

(Count 5); Article I, Section 7 violation of the New Jersey Constitution (free assembly) (Count 6);

a Fourteenth Amendment violation (Count 7); Article I, Section 1 violation of the New Jersey

Constitution (Count 8); and malicious prosecution (Count 9). (Id.)

Defendants challenge the Complaint in its entirety as to the Borough of Far Hills.6

Defendants challenge all counts asserted against Chief DeCarolis, Counts 3-9. As to Welsh,

5 The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.

6 Counts 1 through 9 are asserted against the Borough of Far Hills. (ECF No. 1.) Counts 3

through 9 are asserted against Chief DeCarolis. (Id.) Counts 1 through 4 and 7 through 9 are

Tweedie, and Chimenti, Defendants only challenge Counts 3 and 4. Defendants do not

challenge any claims as to Hicks. (ECF No. 3-2 at 7-10.)

II. LEGAL STANDARD

On a motion to dismiss for failure to state a claim, courts “accept the factual allegations in

the complaint as true, draw all reasonable inferences in favor of the plaintiff, and assess whether

the complaint and the exhibits attached to it ‘contain enough facts to state a claim to relief that is

plausible on its face.’” Wilson v. USI Ins. Serv. LLC, 57 F.4th 131, 140 (3d Cir. 2023) (quoting

Watters v. Bd. of Sch. Dir. of City of Scranton, 975 F.3d 406, 412 (3d Cir. 2020)). “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.’” Clark v. Coupe, 55

F.4th 167, 178 (3d Cir. 2022) (quoting Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 372

(3d Cir. 2019)). When assessing the factual allegations in a complaint, courts “disregard legal

conclusions and recitals of the elements of a cause of action that are supported only by mere

conclusory statements.” Wilson, 57 F.4th at 140 (citing Oakwood Lab’ys LLC v. Thanoo, 999 F.3d

892, 903 (3d Cir. 2021)). The defendant bringing a Rule 12(b)(6) motion bears the burden of

“showing that a complaint fails to state a claim.” In re Plavix Mktg., Sales Pracs. & Prod. Liab.

Litig. (No. II), 974 F.3d 228, 231 (3d Cir. 2020) (citing Davis v. Wells Fargo, 824 F.3d 333, 349

(3d Cir. 2016)).

In deciding a Rule 12(b)(6) motion, the court can only consider “the complaint, exhibits

attached to the complaint, matters of the public record, as well as undisputedly authentic

documents if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605

asserted against Walsh, Tweedie, Chimenti. (Id.) Count 1, 2, 7, and 8 are asserted against Hicks.

(Id.)

F.3d 223, 230 (3d Cir. 2010). A court may also consider any document “integral to or explicitly

relied upon in the complaint” when ruling on a motion to dismiss. In re Burlington Coat Factory

Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

III. DISCUSSION

A. Monell Claim

Defendants argue that Plaintiff’s claims against the Borough of Far Hills should be

dismissed as Plaintiff fails to allege a Monell7 claim. A municipality “can act only through

people—its officers and employees.” Fernandes v. City of Jersey City, Civ. No. 16-07789, 2017

WL 2799698, at *12 (D.N.J. June 27, 2017). As a result, “liability under [§] 1983 ‘may not be

proven under the respondeat superior doctrine, but must be founded upon evidence that the

government unit itself supported a violation of constitutional rights.’” Id. (quoting Bielevicz v.

Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)); see Monell, 436 U.S. 690-91; Brinson v. City of

Newark, Civ. No. 20-9606, 2020 WL 6268696, at *4 (D.N.J. Oct. 26, 2020).

As the United States Court of Appeals for the Third Circuit has recognized, “a § 1983 claim

against a municipality may proceed in two ways.” Forrest v. Parry, 930 F.3d 93, 105 (3d Cir.

2019) (citing Est. of Roman v. City of Newark, 914 F.3d 789, 798-99 (3d Cir. 2019)). To show

municipal liability, “[a] plaintiff may put forth that an unconstitutional policy or custom of the

municipality led to his or her injuries, . . . or that they were caused by a failure or inadequacy by

the municipality that ‘reflects a deliberate or conscious choice[.]’” Id. (quoting Roman, 914 F.3d

at 798). Despite the existence of a “close relationship between policy-and-custom claims and

failure-or-inadequacy claims,” the Third Circuit has made clear that “the avenues remain distinct:

a plaintiff alleging that a policy or custom led to his or her injuries must be referring to an

7 Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658 (1978).

unconstitutional policy or custom,” while “a plaintiff alleging failure-to-supervise, train, or

discipline must show that said failure amounts to deliberate indifference to the constitutional rights

of those affected.” Id. at 106.

In this case, Plaintiff proceeds under the theory of deliberate indifference for failure to

train. (ECF No. 4 at 7-11.) “[D]eliberate indifference requires ‘proof that a municipal actor

disregarded a known or obvious consequence of his action.’” Hightower v. City of Philadelphia,

130 F.4th 352, 357 (3d Cir. 2025) (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 410

(1997)). Deliberate indifference claims are emblematic of a failure to train, supervise, and

discipline claim. See Brinson, 2020 WL 6268696, at *4. A plaintiff can sufficiently plead

deliberate indifference by showing that “(1) municipal policymakers know that employees will

confront a particular situation[,] (2) the situation involves a difficult choice or a history of

employees mishandling[,] and (3) the wrong choice by an employee will frequently cause

deprivation of constitutional rights.” Doe v. Luzerne Cnty., 660 F.3d 169, 180 (3d Cir. 2011).

Importantly, deliberate indifference is a “stringent standard of fault.” Thomas v. Cumberland

Cnty., 749 F.3d 217, 223 (3d Cir. 2014); see Bernal v. Borough of Bogota, Civ. No. 22-05044,

2023 WL 5950398, at *5 (D.N.J. Sept. 13, 2023) (“A ‘plaintiff must also demonstrate that, through

its deliberate conduct, the municipality was the “moving force” behind the injury alleged.’”

(quoting Brown, 520 U.S. at 404)).

“A pattern of similar constitutional violations by untrained employees is ‘ordinarily

necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Connick v.

Thompson, 563 U.S. 51, 62 (2011) (quoting Brown, 520 U.S. at 409); Brinson, 2020 WL 6268696,

at *4 (noting that to “satisfy the Monell requirement of actual municipal involvement or

culpability, it requires ‘deliberate indifference’ to constitutional rights and a degree of

foreknowledge, generally if not always based on a pattern of past incidents, that a constitutionally

perilous situation will occur”). However, “in certain situations, the need for training can be said

to be so obvious, that failure to do so could properly be characterized as deliberate indifference to

constitutional rights even without a pattern of constitutional violations.” Thomas, 749 F.3d at 223

(citation modified); see City of Canton v. Harris, 489 U.S. 378, 390 n.10 (1989) (noting that city

policymakers “know to a moral certainty that their police officers will be required to arrest fleeing

felons,” and therefore “the need to train officers in the constitutional limitations on the use of

deadly force . . . can be said to be so obvious, that failure to do so could properly be characterized

as deliberate indifference to constitutional rights”) (citation modified). These special situations

are referred to as “single-incident,” and depend “on ‘[t]he likelihood that the situation will recur

and the predictability that an [official] lacking specific tools to handle that situation will violate

citizens’ rights.’” Id. at 223-24 (quoting Brown, 520 U.S. at 409). The single-incident theory has

a “narrow” reach. Id. at 224.

A plaintiff must separately demonstrate causation to sustain a failure-to-train claim. Id. at

222. “To satisfy the causation requirement, ‘the identified deficiency in [the] training program

must be closely related to the ultimate injury.’” Martinez v. City of Absury Park, Civ. No. 20-

8710, 2021 WL 1343837, at *6 (D.N.J. Mar. 5, 2021) (quoting City of Canton, 489 U.S. at 391).

Here, Plaintiff asserts in his moving papers that he has properly asserted a deliberate

indifference claim based on the allegations involving (1) the rejection of his nominating petition

for Borough Council, and (2) the February 13, 2023 Borough Council meeting where Plaintiff was

arrested. (ECF No. 4 at 9-10.) More specifically, Plaintiff asserts that “the Borough knew that its

employees would confront situations in which they received nominating petitions and were

required to assess their validity – or – were called upon to control public meetings during which

contentious topics were discussed,” and that “[t]hese situations are even more critical when, as

here, these employees confront citizens who are political rivals of their associates.” (Id. at 10.)

Plaintiff also asserts that “these situations required the municipal employees to exercise judgment

and discretion, or make a ‘difficult choice,’” and that “because of the choices made by these

municipal employees, [Plaintiff’s] constitutional rights were violated.” (Id. at 10-11.)

Even accepting the allegations in the Complaint as true and drawing all inferences in favor

of Plaintiff, the Court finds that the allegations in the Complaint are too threadbare and conclusory

to meet the “stringent standard of fault” associated with a claim for failure to train. Thomas, 749

F.3d at 223. Although Plaintiff alleges that “the Borough knew that its employees would confront

situations in which they received nominating petitions and were required to assess their validity –

or – were called upon to control public meetings during which contentious topics were discussed,”

(ECF No. 4 at 9-10), the Complaint is devoid of any factual allegations indicating a pattern of

allegedly similar constitutional violations, which is “‘ordinarily necessary’ to demonstrate

deliberate indifference for purposes of failure to train.” Connick, 563 U.S. at 62 (quoting Brown,

520 U.S. at 409); Glaesener v. City of Jersey City, Civ. No. 19-cv-18089, 2021 WL 4206297, at

*7-8 (D.N.J. Sept. 15, 2021) (dismissing the plaintiff’s Monell claims, including First Amendment

retaliation, against Jersey City because the plaintiff could not allege “a pattern of allegedly similar

constitutional violations”). Indeed, the Complaint does not indicate that Welsh, Tweedie,

Chimenti, Hicks, or Chief DeCarolis engaged in similar conduct with other individuals, and

therefore any theory that a pattern of similar constitutional violations amounted to deliberate

indifference by the Borough of Far Hills is unavailing. (See, e.g., ECF No. 1 ¶¶ 123-25 (alleging

that other citizens were not routinely arrested at Borough Council meetings).) See also Luna

Garcia v. N. Brunswick Pub. Sch., No. 20-1031, 2020 WL 5201343, at *4 (D.N.J. Sept. 1, 2020)

(rejecting deliberate indifference claim because “the [c]omplaint [did] not indicate that teachers at

[the school] had previously punished other students in a similar manner, nor that [the] [d]efendant

North Brunswick BOE knew about any punishment of [the plaintiff] or other students”).

Nor does the Court find that Plaintiff has alleged facts to permit it to infer that “the need

for training can be said to be so obvious, that failure to do so could properly be characterized as

deliberate indifference to constitutional rights even without a pattern of constitutional violations.”

Thomas, 749 F.3d at 223 (collecting single-incident cases that show the narrow scope of these

claims); see City of Canton, 489 U.S. at 390 n.10; Gaymon v. Esposito, Civ. No. 11-4170, 2013

WL 4446973, at *15 (D.N.J. Aug. 16, 2013) (dismissing Monell claim because the plaintiffs

“fail[ed] to state facts supporting their deliberate indifference based either on a pattern of

constitutional violations of which they had notice or on a ‘single-incident’ liability theory”).

Therefore, Counts 1 through 9 of the Complaint, as asserted against the Borough of Far

Hills, are dismissed. See Connick, 563 U.S. at 61 (“A municipality’s culpability for a deprivation

of rights is at its most tenuous where a claim turns on a failure to train.”); City of Canton, 489 U.S.

at 392 (“In virtually every instance where a person has had his or her constitutional rights violated

by a city employee, a § 1983 plaintiff will be able to point to something the city ‘could have done’

to prevent the unfortunate incident.”).

B. First Amendment (Retaliation)8

Defendants Welsh, Tweedie, Chimenti, and Chief DeCarolis argue that Counts 3 and 4 of

8 Because courts in this District have “repeatedly interpreted NJCRA analogously to

§ 1983,” the Court will analyze Plaintiff’s NJCRA claims “through the lens of § 1983.” Bussinelli

v. Twp. of Mahwah, Civ. No. 23-21519, 2025 WL 1112831, at *3 (D.N.J. Apr. 15, 2025) (quoting

Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011)); see Palardy v. Twp. of

Millburn, 906 F.3d 76, 80 (3d Cir. 2018) (noting that “The Free Speech Clause contained within

the New Jersey Constitution ‘is generally interpreted as co-extensive with the First Amendment,’

so the analysis of [a plaintiff’s] state free speech claim is identical to its federal counterpart.”

the Complaint fail to state a claim for First Amendment retaliation because Plaintiff was arrested

for threatening behavior and not protected speech. (ECF Nos. 3-2 and 5.) In response, Plaintiff

asserts that he was arrested for his political speech. (ECF No. 4.)

To prevail on a § 1983 First Amendment retaliation claim, “the plaintiff must prove that

(1) he engaged in ‘constitutionally protected conduct,’ (2) the defendant engaged in ‘retaliatory

action sufficient to deter a person of ordinary firmness from exercising his constitutional rights,’

and (3) ‘a causal link [existed] between the constitutionally protected conduct and the retaliatory

action.’” Palardy v. Twp. of Millburn, 906 F.3d 76, 81 (3d Cir. 2018) (quoting Thomas v. Indep.

Twp., 463 F.3d 285, 296 (3d Cir. 2006)). “The first element is an issue of law; the second and

third are questions of fact.” Fernandes v. City of Jersey City, Civ. No. 16-07789, 2017 WL

2799698, at *9 (D.N.J. June 27, 2017) (citing Baldassare v. New Jersey, 250 F.3d 188, 195 (3d

Cir. 2001)).

Plaintiff alleges that he was arrested after the February 13, 2023 Borough Council meeting

for his “political comments” regarding “ongoing concerns with both the development and the

ordinance that did not align with the position of certain members of the Borough Council.” (ECF

No. 4 at 13-14; ECF No. 1 ¶¶ 50, 53, 55-59, 74-76.) As courts have recognized, “[a] core purpose

of the First Amendment is to protect speech on matters of public interest,” and “[t]here is no

question that speech by a private citizen concerning matters of public concern, and especially

governmental affairs, is constitutionally protected conduct.” Fernandes, 2017 WL 2799698, at

*9; see Mills v. State of Alabama, 384 U.S. 214, 218 (1966) (“[T]here is practically universal

(quoting Twp. of Pennsauken v. Schad, 160 N.J. 156, 733 A.2d 1159, 1169 (1999))); See also N.J.

Chinese Cmty. Ctr. v. McAleer, Civ. No. 21-08320, 2025 WL 1564869, at *8 n.5 (D.N.J. June 3,

2025) (“The NJCRA was modeled after § 1983, and courts in New Jersey have consistently looked

at claims under the NJCRA ‘through the lens of § 1983[.]’” (quoting Wronko v. Howell Twp., Civ.

No. 3:17-CV-1956, 2018 WL 516055, at *6 (D.N.J. Jan. 23, 2018))).

agreement that a major purpose of [the First] Amendment was to protect the free discussion of

governmental affairs.”) Moreover, courts “afford heightened protection to speech given in public

forums, such as public meetings.” Fernandes, 2017 WL 2799698, at *9 (citing Besler v. Bd. of

Ed. of W. Windsor-Plainsboro Reg’l Sch. Dist., 993 A.2d 805, 819 (N.J. 2010)). However,

Defendants argue that Plaintiff’s First Amendment rights were not violated because he was

arrested in response to the threats he made throughout the February 13, 2023 meeting. (ECF No.

3-2 at 9, 21-22; ECF No. 5 at 13.) For Plaintiff’s threats to fall beyond the scope of constitutionally

protected speech, the Court would need to find that Plaintiff’s comments amount to “true threats.”

Drawing all reasonable inferences in favor of Plaintiff at this early stage in the litigation,

the Court cannot conclude that his comments amount to “true threats.” See Counterman v.

Colorado, 600 U.S. 66, 74 (2024) (“True threats are ‘serious expression[s]’ conveying that a

speaker means to ‘commit an act of unlawful violence.’” (quoting Virginia v. Black, 538 U.S. 343,

359 (2003))); Watts v. United States, 394 U.S. 705, 708 (1969) (“[P]olitical hyperbole” is not a

true threat). As the Third Circuit has held, “not all violent speech automatically falls outside of

the First Amendment’s protective shroud.” Fenico v. City of Philadelphia, 70 F.4th 151, 165 (3d

Cir. 2023); see also Thunder Studios, Inc. v. Kazal, 13 F.4th 736, 746 (9th Cir. 2021) (“Even a

statement that appears to threaten violence may not be a true threat if the context indicates that it

only expressed political opposition or was emotionally charged rhetoric.”). Based solely on the

allegations in the Complaint and a recording of the February 13, 2023 meeting, and without the

benefit of any discovery, it would be premature for the Court to determine whether such comments

fall outside the scope of constitutionally protected speech. See also Jackson v. Irwin, Civ. No. 22-

352E, 2024 WL 2883226, at *3-4 (W.D. Pa. Jan. 4, 2024), adopting report and recommendation,

2024 WL 2716858 (W.D. Pa. May 28, 2024) (declining to resolve whether the plaintiff’s speech

constituted a true threat at the motion to dismiss stage). Therefore, Plaintiff has alleged enough

facts to satisfy the first element for purposes of a motion to dismiss.

As to the second element, the Third Circuit has recognized that the test for “determining

whether an action is treated as retaliation is whether it is ‘sufficient to deter a person of ordinary

firmness from exercising his constitutional rights.’” Miller v. Mitchell, 598 F.3d 139, 152 (3d Cir.

2010) (quoting Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003)). Because there “is no doubt a

prosecution meets this test,” Plaintiff’s arrest and subsequent prosecution for harassment pursuant

to N.J. Stat. Ann. § 2C:33-4(a) is enough to deter others from exercising their free speech rights.

Id.; see Hartman v. Moore, 547 U.S. 250, 256 (2006) (“[T]he law is settled that as a general matter

the First Amendment prohibits government officials from subjecting an individual to retaliatory

actions, including criminal prosecutions, for speaking out.”). Therefore, the second element is

satisfied.

As for the final element, Plaintiff must allege a causal link between the constitutionally

protected conduct and the retaliatory action. To assert a retaliatory arrest claim, a plaintiff must

plead and prove the absence of probable cause for the arrest. Morales v. Maxwell, 600 F. Supp.

3d 497, 519 (D.N.J. 2022) (quoting Nieves v. Bartlett, 587 U.S. 391, 402 (2019)). If a plaintiff

does sufficiently allege an absence of probable cause, courts will then apply the test announced in

Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 (1977). Nieves,

587 U.S. at 404. Under Mt. Healthy, “[t]he plaintiff must show that the retaliation was a substantial

or motivating factor behind the [arrest], and, if that showing is made, the defendant can prevail

only by showing that the [arrest] would have been initiated without respect to retaliation.” Id.

(quoting Lozman v. Riviera Beach, 585 U.S. 87, 97)).

However, the United States Supreme Court has recognized a narrow exception to the

probable cause requirement for retaliatory arrest claims. In Nieves, the Supreme Court held that

“the no-probable-cause requirement should not apply when a plaintiff presents objective evidence

that he was arrested when otherwise similarly situated individuals not engaged in the same sort of

protected speech had not been.” Id. at 407. This exception “provides an objective inquiry that

avoids the significant problems that would arise from reviewing police conduct under a purely

subjective standard,” and “[b]ecause this inquiry is objective, the statements and motivations of

the particular arresting officer are ‘irrelevant’ at this stage.” Id. As a result, “[a]fter making the

required showing, the plaintiff’s claim may proceed in the same manner as claims where the

plaintiff has met the threshold showing of the absence of probable cause.” Id. at 408-09.

Here, Plaintiff asserts that the Nieves exception applies. In support of this assertion,

Plaintiff alleges that: (1) since becoming a resident of Far Hills in 2018, Plaintiff has attended all

Borough Council meetings; (2) Plaintiff regularly raised concerns to the Borough Council about

fiscal motives of the council members, the development project at issue in this case, and other

issues related to Far Hills; (3) Plaintiff announced his candidacy for the Borough Council prior to

the February 13, 2023 meeting where he was arrested; (4) Plaintiff’s comments that prompted his

arrest were that “[t]he storm is coming” and “[y]ou’re going down,” which prompted laughter from

one of the council members; (5) other individuals that made “impassioned, controversial, or

provocative” comments at Borough Council meetings Plaintiff attended were not arrested nor

charged with harassment; (6) the letter from Vallone that indicated Plaintiff never made

threatening comments even when he expressed displeasure with the Borough Council; and (7) the

letter from Vallone that also suggested “half of Far Hills” would already be arrested if they spoke

“sharply and briskly.” (ECF Nos 1 & 4.)

Based on these allegations, the Supreme Court’s recent decision in Gonzalez v. Trevino,

602 U.S. 653 (2024) is instructive. In Gonzalez, the plaintiff, a city councilwoman, was gathering

signatures for a petition seeking the removal of the city manager. Id. at 655. The plaintiff was

eventually charged with a Texas anti-tampering statute—which prohibited a person from

intentionally removing a governmental record—after the petition was found in her personal binder.

Id. at 656. After the charges were dismissed, the plaintiff brought suit under 42 U.S.C. § 1983,

alleging that she “was arrested in retaliation for her role in organizing the petition for [the city

manager’s] removal and that the defendants [(i.e., one of her colleagues and law enforcement

officials)] therefore violated her First Amendment rights.” Id. As part of her claim, the plaintiff

“alleged that she had reviewed the past decade’s misdemeanor and felony data . . . and that her

review had found that the Texas anti-tampering statute had never been used in the county ‘to

criminally charge someone for trying to steal a nonbinding or expressive document.’” Id. at 657.

The plaintiff’s search “turned up 215 felony indictments, and she characterized the typical

indictment as involving accusations of either using or making fake government identification

documents.” Id. (citation modified). The defendants subsequently moved to dismiss the plaintiff’s

complaint. Id. The trial court denied the motion after finding that the plaintiff’s claim fell within

the Nieves exception. Id. The Supreme Court agreed with the trial court. Id. at 658.

The Supreme Court determined that “[t]o fall within the [Nieves] exception, a plaintiff must

produce evidence to prove that his arrest occurred in such circumstances,” and “[t]he only express

limit [] placed on the sort of evidence a plaintiff may present for that purpose is that it must be

objective in order to avoid ‘the significant problems that would arise from reviewing police

conduct under a purely subjective standard.’” Id. (quoting Nieves, 587 U.S. at 407). In finding

that the plaintiff had alleged sufficient facts at the motion to dismiss stage, the Supreme Court

stated that the plaintiff’s review of the charges associated with the Texas law was a “permissible

type of evidence because the fact that no one has ever been arrested for engaging in a certain kind

of conduct—especially when the criminal prohibition is longstanding and the conduct at issue is

not novel—makes it more likely that an officer has declined to arrest someone for engaging in

such conduct in the past.” Id.

Based on the Supreme Court’s decision in Gonzalez, the Court finds that Plaintiff has failed

to allege such objective evidence to fall within the narrow scope of the Nieves exception. The

allegations that most support Plaintiff’s assertion that the Nieves exception applies are that (1)

other individuals that made “impassioned, controversial, or provocative” comments at Borough

Council meetings Plaintiff attended were not arrested nor charged with harassment, and (2) the

Vallone letter suggested “half of Far Hills” would already be arrested if they spoke “sharply and

briskly” like Plaintiff. (ECF Nos 1 & 4.) But these assertions are simply too vague and conclusory

to meet the circumscribed exception under Nieves. Indeed, courts routinely find that similar

allegations do not satisfy the Nieves exception at the motion to dismiss stage. See, e.g., Brown v.

City of Albion, Mich., 136 F.4th 331, 341-42 (6th Cir. 2025) (finding that an allegation about law

enforcement never “criminally prosecut[ing] anyone in the entire history of the ordinance” failed

to meet the Nieves exception); Falcone v. Dickstein, 92 F.4th 193, 211 (3d Cir. 2024) (finding that

the plaintiff’s allegations that “people similarly situated as [her] were not arrested for attending

board meetings unmasked when they were not necessarily long-standing anti-mask protestors for

children in schools” was conclusory and did not meet the Nieves exception); Thompson v.

McGehee, 761 F. Supp. 3d 937, 946 (N.D. Tex. 2025) (finding that the plaintiff’s allegations that

the police department “never before enforced the non-violent, misdemeanor statute under which

[the] [p]laintiff was arrested” and that law enforcement failed to arrest an individual similarly

situated to the plaintiff failed to meet the Nieves exception); Cuff v. Zee, Civ. No. 23-22823, 2024

WL 5074728, at *6 (D.N.J. Dec. 10, 2024) (finding that the plaintiff’s assertions that the

defendants “treated him differently from similarly-situated persons by investigating and arresting

him” without an explanation failed to meet the Nieves exception); Eravi v. City Comm’n of

Lawrence, Kan., Civ. No. 24-4042, 2025 WL 918201, at *9 n.2 (D. Kan. Mar. 26, 2025) (finding

that the plaintiff’s assertions were too conclusory to meet the Nieves exception).

Therefore, Counts 3 and 4 of the Complaint, as asserted against Welsh, Tweedie, Chimenti,

and Chief DeCarolis, are dismissed.9

C. Fourth Amendment and Malicious Prosecution

Chief DeCarolis asserts that Counts 5 and 6 (violations of the Fourth Amendment and

NJCRA) and Count 9 (malicious prosecution) should be dismissed because he had probable cause

to arrest and file charges against Plaintiff. (See ECF No. 3-2 at 10.)

The Court construes Count 5 and 6 as counts asserting claims for unlawful or false arrest.

To bring a claim for unlawful or false arrest, a plaintiff must establish “(1) that there was an arrest;

and (2) that the arrest was made without probable cause.” James v. City of Wilkes-Barre, 700 F.3d

675, 680 (3d Cir. 2012).

“To prove malicious prosecution under § 1983, a plaintiff must show that: (1) the

defendants initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiffs favor;

(3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or

for a purpose other than bringing a plaintiff to justice; and (5) the plaintiff suffered deprivation of

9 The Court need not address whether probable cause existed to arrest Plaintiff, as Plaintiff’s

sole argument as to probable cause relates to the Nieves exception, (see ECF No. 4 at 13, 17-21),

which only applies in “circumstances where officers have probable cause to make arrests, but

typically exercise their discretion not to do so.” Nieves, 587 U.S. at 406.

liberty consistent with the concept of seizure as a consequence of a legal proceeding.” Estate of

Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003) (citation omitted).

Because Plaintiff does not challenge probable cause beyond his argument under Nieves,

the Court concludes that for purposes of this Motion, probable cause existed to arrest and prosecute

Plaintiff.10 (See ECF No. 4 at 13, 17-21.) Indeed, the Complaint alleges that the judge found

probable cause for Plaintiff’s arrest. (ECF No. 1 ¶ 90.) Therefore, Counts 5, 6, and 9, as asserted

against Chief DeCarolis are dismissed.

D. Qualified Immunity

Finally, Chief DeCarolis asserts that he is entitled to qualified immunity, and therefore all

counts asserted against him must be dismissed. As outlined above, the Court already dismissed

Counts 3 through 6, and 9 as asserted against Chief DeCarolis. Therefore, the Court need only

consider Chief DeCarolis’ qualified immunity argument as it relates to Counts 7 and 8 (substantive

due process violations).

“The doctrine of qualified immunity protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”’ Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “When properly applied,

10 The Court also notes that even if the Nieves exception applied to Plaintiff’s First

Amendment retaliation claims (Counts 3 and 4), Plaintiff would still need to show an absence of

probable cause for his unlawful or false arrest and malicious prosecution claims (Counts 5, 6, and

9) because the Nieves exception only applies to First Amendment retaliation claims. See Somers

v. Devine, 132 F.4th 689, 697 (4th Cir. 2025) (distinguishing between retaliatory arrest, unlawful

arrest, and malicious prosecution); Nigro v. City of N.Y., Civ. No. 19-2369, 2020 WL 5503539, at

*3-4 (S.D.N.Y. Feb. 21, 2020) (granting a motion to dismiss a false arrest claim on the grounds

that probable cause to arrest the plaintiff existed but also noting that the plaintiff’s “retaliatory

arrest claim would seem to fall squarely within the Nieves exception”); see also Gonzalez, 602

U.S. at 673 (Alito, J., concurring) (“Nieves applies to all retaliatory-arrest claims brought under §

1983.”).

[qualified immunity] protects all but the plainly incompetent or those who knowingly violate the

law.” Schneyder v. Smith, 653 F.3d 313, 331 (3d Cir. 2011) (internal quotations and citations

omitted). Moreover, “[q]ualified immunity balances two important interests—the need to hold

public officials accountable when they exercise power irresponsibly and the need to shield officials

from harassment, distraction, and liability when they perform their duties reasonably.” Pearson,

555 U.S. at 231. Qualified immunity aims to resolve “insubstantial claims” against government

officials prior to discovery. Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987).

“At the motion-to-dismiss stage, courts evaluate qualified immunity for a constitutional

claim by examining (i) whether the complaint contains plausible allegations of a constitutional

violation and (ii) whether the asserted constitutional right is clearly established.” Karkalas v.

Marks, 845 F. App’x 114, 118 (3d Cir. 2021). The questions may be answered in either order.

Pearson, 555 U.S. at 242.

“The Due Process Clause provides that a state shall not ‘deprive any person of life, liberty,

or property, without due process of law.” Morrow v. Balaski, 719 F.3d 160, 166 (3d Cir. 2013)

(quoting U.S. Const. amend. XIV, § 1). “[T]he substantive component of due process[ ] . . .

‘protects individual liberty against certain government actions regardless of the fairness of the

procedures used to implement them.’” Id. (quoting Collins v. City of Harker Heights, 503 U.S.

115, 125 (1992)) (citation modified). “To establish a substantive due process violation under the

Fourteenth Amendment, a plaintiff must demonstrate that a defendant engaged in conduct that

‘shocks the conscience.’” Muraveva v. City of Wildwood, Civ. No. 17-916, 2018 WL 6617266, at

*7 (D.N.J. Dec. 18, 2018).

Here, the Court finds that Plaintiff has failed to state a plausible substantive due process

violation against Chief DeCarolis. Plaintiff’s substantive due process claims against Chief

DeCarolis stem from Plaintiff’s arrest and prosecution. (See ECF No. 1.) But as the Supreme

Court has recognized, “[w]here a particular Amendment provides an explicit textual source of

constitutional protection against a particular sort of government behavior, that Amendment, not

the more generalized notion of substantive due process, must be the guide for analyzing these

claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (citation modified).

Courts in this district have repeatedly interpreted Albright to bar recovery under the

Fourteenth Amendment for conduct that would fall within the scope of other amendments, such as

the First Amendment and Fourth Amendment. See, e.g., Catalano v. City of Trenton, Civ. No. 18-

11646, 2019 WL 2315092, at *9 (D.N.J. May 31, 2019) (dismissing Fourteenth Amendment

claims when the proper source of constitutional protection for unlawful arrest is the Fourth

Amendment); Newton v. Greenwich Twp., Civ. No. 12-238, 2012 WL 3715947, at *4 (D.N.J. Aug.

27, 2012) (noting that “[b]ecause . . . [the] [p]laintiffs’ First Amendment claim fails, [the]

[p]laintiffs have no federal substantive due process claim”); Ingliema v. Town of Hampton, Civ.

No. 05-3497, 2007 WL 2908222, at *4-5 (D.N.J. Oct. 1, 2007) (finding that even though the

plaintiff failed to sufficiently allege a Fourth Amendment violation, the plaintiff was barred from

asserting a substantive due process violation under the Fourteenth Amendment because the

“explicit textual source of constitutional protection” was the Fourth Amendment); Combs v.

Borough of Avalon, Civ. No. 05-5904, 2007 WL 401905, at *2 (D.N.J. Feb. 1, 2007) (“[T]here is

no substantive due process right in being free from prosecution without probable cause, and

substantive due process may not furnish the constitutional peg on which to hang such a tort.”

(citation modified)). The Court will do the same here and not expand the concept of substantive

due process. See Albright, 510 U.S. at 271-72 (noting that “[t]he protections of substantive due

process have for the most part been accorded to matters relating to matriage, family, procreation,

and the right to bodily integrity”).

Therefore, because Plaintiff has failed to state a plausible substantive due process violation,

Chief DeCarolis is entitled to qualified inmunity on Counts 7 and 8.

IV. CONCLUSION

For the reasons stated above, and for other good cause shown, Defendants’ Motion to

Dismiss (ECF No. 3) is GRANTED. Plaintiff shall have thirty G0) days to file an amended

complaint in accordance with Local Rule 15.1(b), to the extent he can cure the deficiencies cited

herein, Failure to file an amended complaint within that time will render the dismissal final. See

Mann v. A.O. Smith Corp., Civ. No, 21-2361, 2023 WL. 2344225, at *2 (3d Cir. Mar. 3, 2023) A

district court’s dismissal without prejudice for failure to state a claim is converted into a dismissal

with prejudice tf plaintiff ‘declarfes] his intention to stand on his complaint’ by failing to timely

amend it... ."}; Hoffman v. Nordic Nats., Inc., 837 F.3d 272, 279 (3d Cir. 2016) (When that 30-

day period expired, the District Court’s decision became final.) An appropriate Order follows.

Dated: July [0 , 2025 Chote

UNVLED STATES DISTRICT JUDGE

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