Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

D'AURIZIO v. PALISADES PARK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


April 28, 1997

Albert D'Aurizio, Plaintiff,
v.
Palisades Park, et al., Defendants.

The opinion of the court was delivered by: GREENAWAY

OPINION

 JOSEPH A. GREENAWAY, JR., District Judge,

 This matter comes before the Court on the motion to dismiss, or alternatively for summary judgment, of Sinisi, Van Dam, Sproviero & Sokolich, attorneys for defendants James Nichols and Carmine Verdicchio. Because both parties present extrinsic material, the Court will treat this motion as one for summary judgment, pursuant to Fed. R. Civ. P. 56.

 PRELIMINARY STATEMENT

 Plaintiff Albert D'Aurizio ("D'Aurizio"), and his wife Debbie, are members of a large and politically active family in the Borough of Palisades Park (the "Borough"). For years, the D'Aurizios participated in local Republican and school board politics. D'Aurizio's sister-in-law, Carol Killion (one of the defendants in this case), was president of the Palisades Park Board of Education (hereinafter, the "Board"). All of the defendants in this case are individuals D'Aurizio knows through his involvement in local politics; they include William Maresca, the Republican Mayor of the Borough between 1991 and November 1995, and various members of the Board and the Borough Council. In short, D'Aurizio's claims against the defendants stem from his belief that because he ran for a seat on the Council in 1991 as an independent, as opposed to a Republican candidate, the defendants -- all, except for one, who are affiliated with the Republican party -- participated in a conspiracy to fire him from his Board-appointed position as a school custodian. In addition, D'Aurizio claims that subsequent to the elimination of his custodial position in June 1992, defendants continued their conspiracy against him by ensuring that the Board did not place his name on the part-time custodial roster in December 1992, thereby precluding him from exercising his alleged right of first refusal. *fn1"

  FACTS

 D'Aurizio's Candidacy

 In April 1991, D'Aurizio, a former Republican, announced his candidacy as an independent candidate for a seat on the Council. In late May or early June 1991, the Board hired D'Aurizio as a part-time custodian. In August 1991, the Board decided, by vote, to make D'Aurizio a full-time custodian. In November 1991, D'Aurizio ran for Council against the Republican ticket and lost. D'Aurizio's alleges that his campaign caused a division among the local Republicans. Amended Complaint P 27.

 1992-1993 School Budget

 In approximately December 1991, the budget process for the Borough's 1992-1993 school year began. On February 4, 1992, the Board met to discuss preliminary cuts to the budget; these cuts included the elimination of one custodial position (a $ 30,000 cut) and two maintenance positions (a $ 60,000 cut). Sherwood Dep., at 174-75. *fn2" On March 17, 1992, the Board presented its 1992-1993 school budget -- with the proposed cuts -- at a public hearing. Eichenholtz Dep., at 247. *fn3" On or about April 7, 1992, the Borough voters defeated the school budget. Killion Dep., at 586-87. *fn4" As a result, on April 22 and April 26, 1992, the Board, the Mayor (Maresca) and the Council met to review the budget and to determine if they could make any other cuts. *fn5" These were open meetings mandated by New Jersey State statute and recited in the Council's School Board Budget Resolution, passed on April 27, 1992 ("hereinafter, the "April 27 Budget Resolution").

 Conspiracy Meetings

 D'Aurizio alleges that in addition to the two mandated meetings, members of the "Republican majority" from the Borough secretly met in April *fn6" , and again on June 9, 1992, to conspire to eliminate D'Aurizio's position as a school custodian, i.e., in retaliation for his 1991 independent candidacy for Council. *fn7" Amended Complaint P 32. Specifically, D'Aurizio claims that Michael DeBartolo *fn8" , the campaign manager for D'Aurizio's Republican opponent in the November 1991 election, stated at the secret meeting in April: "We're getting rid of Al [D'Aurizio] because he ran against us." Id. D'Aurizio adds that all the other Republican members of the Board tacitly agreed with DeBartolo's suggestion "by nodding, or other acts showing ratification of the conspiracy proposal." Id.

  However, D'Aurizio testified at his deposition that his basis for believing that the defendants secretly met, both in April and in June, came only from alleged conversations he had with Carol Killion (his sister-in-law), see D'Aurizio Dep., at 127-28, and defendant Peter Marose, a Democratic member of the Board. Id. at 135-36. Indeed, D'Aurizio admitted at his deposition that other than what he could "surmise" from these two conversations, he had no other knowledge of the alleged secret meeting, which he believes occurred some time in April. Id. at 136 & 139-40. In addition, Ms. Killion stated at her deposition that the April meeting was "an open meeting and anyone could have come." Killion Dep., at 105-06. Moreover, when D'Aurizio was specifically questioned about his conversation with Ms. Killion regarding the alleged secret meeting in April, D'Aurizio responded: "I do not recall exactly how we found out from her [Ms. Killion]." D'Aurizio Dep., at 127-28.

 Ms. Killion also admitted at her deposition that the June meeting was an open Republican meeting, held at the law offices of Rotolo & Rotolo, to discuss the vacant seat on the Board. Killion Dep., at 178-86. In addition, Ms. Killion testified that D'Aurizio's name was not even mentioned during this June meeting other than in a private, side conversation she (Ms. Killion) had with Mr. Albanese, the content of which was: "Paul, Paul [Albanese], come on, this is my brother-in-law", to which Mr. Albanese allegedly responded "well, fire them all." Id. at 101.

 D'Aurizio's Termination

 On June 2, 1992, the Board informed D'Aurizio by letter that his job would be discussed at the June 9 meeting. D'Aurizio Dec. P 21. On June 9, 1992, the Board voted to eliminate one custodian and two maintenance positions. In short, the Board officially terminated D'Aurizio's custodian job. Id.

 Nichols and Verdicchio

 In November 1992 -- i.e., after D'Aurizio's termination in June 1992 -- the Board appointed defendant James Nichols ("Nichols") to replace George Fasciano *fn9" as the Palisades Park Superintendent of Schools (the "Superintendent"). Nichols Aff. P 2. *fn10" As Superintendent, Nichols' primary area of focus was the educational curriculum; he generally left responsibility for non-educational matters to the Business Administrator/Board Secretary. *fn11" Id. at P 4. At no time did Nichols have either the power or the authority to place D'Aurizio's name on -- or to keep him off -- the Board's list of part-time custodial/maintenance employees. Id. at P 6. D'Aurizio specifically refers to Nichols in only 2 of the total 108 paragraphs of his Amended Complaint. First, in paragraph 17, D'Aurizio provides Nichols' address and position as Superintendent and alleges that "Nichols . . . conspired and acted in his official and individual capacities in violation of D'Aurizio's rights as more fully stated below." Second, in paragraph 72, D'Aurizio makes a number of other allegations including that:

 

Defendant James Nichols acted in furtherance of the conspiracy by following the lead of other defendants notwithstanding his knowledge as to the impropriety of such conduct. In addition, defendant James Nichols actively covered up, and otherwise failed to prevent, the conspiracy and wrongful conduct committed by other defendants, notwithstanding his knowledge of such facts and his opportunity to prevent such conduct. Defendant James Nichols ratified the other defendants' conspiracy and meetings as though to be an actual participant from their inception.

 Defendant Carmine Verdicchio ("Verdicchio") was, at all relevant times, employed by the Board as the "lead" custodian for the Palisades Park schools. Verdicchio Aff. P 1. *fn12" As lead custodian, Verdicchio did not have the power or authority to hire or fire employees, including D'Aurizio. Id. at P 3. Verdicchio also had no involvement, either in his capacity as lead custodian or individually, in the Board's (1) decision to eliminate one custodial and two maintenance positions in June 1992 or (2)"adoption of a list of part-time custodial/maintenance employees[.]" Id. at PP 4-5. D'Aurizio similarly only specifically refers to Verdicchio in 2 paragraphs of his Amended Complaint. First, paragraph 16 provides Verdicchio's address, position as lead custodian and the same conclusory allegation as set forth against Nichols in paragraph 17. Second, paragraph 70, states, in pertinent part, that:

 

Defendant Verdicchio, as Lead Custodian, was empowered and authorized to process job vacancies and offers for the exercise of the right of first refusal. . . Defendant Verdicchio acted in furtherance of the conspiracy by following the lead of defendant DeBartolo, notwithstanding his knowledge as to the impropriety of such conduct. In addition, defendant Verdicchio actively covered up the conspiracy and wrongful conduct committed by the other defendants. Defendant Verdicchio ratified the other defendants' conspiracy and meetings as though to be an actual participant from their inception.

 However, other than these sweeping allegations, D'Aurizio provides no evidence to bridge the chasm between his broad conclusion that his Constitutional rights were violated and the assertion that either Nichols or Verdicchio are to blame. Accordingly, D'Aurizio's allegations fail to state a claim as a matter of law against either Nichols or Verdicchio. Therefore, the Amended Complaint is dismissed as to defendants Nichols and Verdicchio.

 DISCUSSION

 Fed. R. Civ. P. 56(c) provides for summary judgment when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment cannot rest on mere allegations and must instead present actual evidence that creates a genuine issue as to a material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995); Sound Ship Bldg. Corp. v. Bethlehem Steel Co., 533 F.2d 96, 99 (3d Cir.), cert. denied, 429 U.S. 860, 50 L. Ed. 2d 137, 97 S. Ct. 161 (1976).

  42 U.S.C. § 1983

 To state a claim under 42 U.S.C. § 1983 ("section 1983"), a plaintiff must allege two elements: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that this conduct deprived plaintiff of rights, privileges or immunities secured by the U.S. Constitution or laws of the United States *fn13" See West v. Atkins, 487 U.S. 42, 48-49, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1142 (3d Cir. 1990); McArdle v. Tronetti, 769 F. Supp. 188, 190 (W.D. Pa. 1991), aff'd, 961 F.2d 1083 (3d Cir. 1992).

 However, "claims for violations of civil rights in this circuit are subject to heightened standards of factual specificity in pleading." Rourke v. United States, 744 F. Supp. 100, 104 (E.D. Pa. 1988), aff'd, 909 F.2d 1477 (3d Cir. 1990) (citing Colburn v. Upper Darby Township, 838 F.2d 663 (3d Cir. 1988)); see also Hauptmann v. Wilentz, 570 F. Supp. 351, 374 (D.N.J. 1983) ("The Third Circuit requires that a civil rights complaint contain a modicum of specificity, identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs."), aff'd, 770 F.2d 1070 (3d Cir. 1985) (citations omitted).

 Furthermore, in most contexts, the section 1983 "acting under color of state law" inquiry is identical to the "state action" requirement under the Fourteenth Amendment. Groman v. Township of Manalapan, 47 F.3d 628, 638 n.15 (3d Cir. 1995) (citing Robison v. Canterbury Village, Inc., 848 F.2d 424, 427 n.3 (3d Cir. 1988)). Thus, "where the actors are not state or municipal officials, but are private individuals or associations . . . their activity can nevertheless be deemed to be under color of law." Id. 47 F.3d at 638. In short, a private party is converted into a state actor where "he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State." Lugar v. Edmondson Oil Company, Inc., 457 U.S. 922, 937, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982). *fn14"

 However, a private action "is not converted into one under color of state law merely by some tenuous connection to the state action. The issue is not whether the state was involved in some way in the relevant events but whether the action taken can be fairly attributed to the state itself." Groman, 47 F.3d 628 at 638-39 (citing Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974)). In addition, "it is not enough . . . to show that the private and state actors might have had a common goal unless there is a factually specific allegation that they directed themselves toward an unconstitutional act by virtue of a mutual understanding or agreement." Hauptmann, 570 F. Supp. at 382 (emphasis added) (citations omitted). Moreover, because the "under color of state law" requirement is part of the prima facie case for a section 1983 claim, "the plaintiff bears the burden of proof on that issue." Groman, 47 F.3d 628 at 638 (citing West v. Atkins, 487 U.S. 42, 48, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988)).

 In this case, D'Aurizio's allegations that Nichols and Verdicchio conspired against him are vague and unsubstantiated. In short, D'Aurizio's conclusory contention that Nichols and Verdicchio "conspired and acted in [their] . . . official and individual capacities in violation of D'Aurizio's rights" fails to state a claim with the required "modicum of specificity." Amended Complaint PP 16-17. D'Aurizio's's other allegations are also void of any specific factual references: that, for example, Nichols and Verdicchio "actively covered up, . . . otherwise failed to prevent . . . [and] ratified the other defendants' conspiracy and meetings[.]" Id. at PP 71-72. Indeed, as Superintendent and lead custodian, respectively, neither Nichols nor Verdicchio had the power to hire or fire D'Aurizio. In short, D'Aurizio has failed to set forth any facts to support his allegations that Nichols and Verdicchio, each in their respective individual capacity, conspired with the other defendants to violate, and actually did violate, D'Aurizio's rights under the Constitution or pursuant to federal law. Accordingly, D'Aurizio's section 1983 claim against Nichols and Verdicchio are dismissed, in the first instance, for lack of specificity.

 Discrimination based on Political Association

 To make out a prima facie case of discrimination based on political association -- i.e., pursuant to the First Amendment -- a public employee must prove:

 

(1) that the employee works for a public agency in a position that does not require a political affiliation, (2) that the employee maintained an affiliation with a political party, and (3) that the employee's political affiliation was a substantial or motivating factor in the adverse employment decision.

 Robertson v. Fiore, 62 F.3d 596, 599 (3d Cir. 1995) (citing Laskaris v. Thornburgh, 733 F.2d 260, 265 (3d Cir.), cert denied, 469 U.S. 886, 83 L. Ed. 2d 196, 105 S. Ct. 260 (1984); Perez v. Cucci, 725 F. Supp. 209, 238-39 (D.N.J. 1989), aff'd, 898 F.2d 139 (3d Cir. 1990)). *fn15" If the plaintiff-employee is able to show his political association is a substantial or motivating factor in the adverse employment decision, the burden shifts to the employer to show "by a preponderance of the evidence that it would have reached the same decision . . . even in the absence of the protected conduct." Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); Robertson, 62 F.3d at 599 (citations omitted); Raniero v. Antun, 943 F. Supp. 413, 423 (D.N.J. 1996).

 In this case, D'Aurizio contends that he was fired from his custodian position because of his political association. However, D'Aurizio's evidence amounts to no more than conclusory allegations that he spoke to two individuals, one of whom is his sister-in-law, who told him the defendants secretly met and conspired to eliminate his custodian position with the Board. By contrast, the defendants provide the Court with ample documentary and testimonial evidence demonstrating that the Borough's April 27 Budget Resolution (which eliminated D'Aurizio's job), as well as the Board's prior cuts to the budget, were motivated by nothing more than a legitimately perceived need to reduce the school budget.

 Moreover, D'Aurizio does not even argue that either Nichols or Verdicchio attended the very meetings -- in April and June --where the other defendants allegedly conspired against him In addition, as lead custodian, Verdicchio did not have the power or authority to hire or fire employees, including D'Aurizio. Verdicchio Aff. P 3. Verdicchio also had no involvement, either in his capacity as lead custodian or individually, in the Board's (1) decision to eliminate one custodial and two maintenance positions in June 1992, or (2)"adoption of a list of part-time custodial/maintenance employees[.]" Id. at PP 4-5. As Superintendent, Nichols' primary area of focus was the educational curriculum; he generally left responsibility for non-educational matters to the Business Administrator/Board Secretary. Nichols Aff. P 4. Nichols also did not have either the power or the authority to place D'Aurizio's name on -- or to keep him off -- the Board's list of part-time custodial/maintenance employees. Id. at P 6.

 Accordingly, D'Aurizio has failed to show that his 1991 independent candidacy for Council -- and thus his political association --was a "substantial or motivating factor" in the Board's decision to eliminate his custodian position; moreover, even if he had proven discrimination by the Board, D'Aurizio provides no evidence that the defendants, Nichols or Verdicchio, even participated in the decision to eliminate his job. Therefore, D'Aurizio's First Amendment claims, and consequently his section 1983 claims, against defendants Nichols and Verdicchio are dismissed. *fn16"

  42 U.S.C. 1985

 To establish a claim in violation of the first clause *fn17" of 42 U.S.C. § 1985(3) ("section 1985(3)"), the plaintiff must allege and prove four elements:

 

(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.

 Deblasio v. Zoning Bd. of Adjustment for the Township of West Amwell, 820 F. Supp. 876, 885 (D.N.J. 1993) (quoting Wagner v. Township of Harmar, 651 F. Supp. 1286 (W.D. Pa.), aff'd, 826 F.2d 1058 (3d Cir. 1987)) (citing United Bhd. of Carpenters & Joiners of America, Local 610, AFL-CIO, et al. v. Scott, et al., 463 U.S. 825, 828-29, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1983)). Courts have construed the second element to require "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268-69, 122 L. Ed. 2d 34, 113 S. Ct. 753 (1993) (citing Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971)); Pratt v. Thornburgh, 807 F.2d 355, 357 (3d Cir. 1986)). Thus, for example, an allegation by a plaintiff "that he was discriminated against because he was not a political insider . . . fails to allege that he is part of any protected class which would bring him under the protection of § 1985." Deblasio, 820 F. Supp. at 885.

 In this case, even if D'Aurizio could prove the conspiracy and injury elements of his section 1985(3) claim against the defendants, he does not allege that the defendants' actions were motivated by "racial or other class-based invidiously discriminatory animus." Rather, here D'Aurizio is merely claiming that the defendants conspired against him, individually, because of his political association.

 Accordingly, D'Aurizio's section 1985(3) claim against defendants Nichols and Verdicchio is dismissed.

  42 U.S.C. § 1986

 42 U.S.C. § 1986 ("section 1986") provides a damages remedy against an individual who fails to prevent a section 1985(3) remedy. Skadegaard v. Farrell, 578 F. Supp. 1209, 1221 n.9 (D.N.J. 1984). Thus, all claims under section 1986 are derivative in nature, requiring a valid underlying section 1985(3) claim. Id. at 1221 (citing Hauptmann v. Wilentz, 570 F. Supp. 351, 387 (D.N.J. 1983)); see also Bowman v. Bank of Delaware, 666 F. Supp. 63, 64 (D. Del. 1987) ("If the complaint does not state a § 1985(3) cause of action, then any § 1986 claim must fail as well.") In addition, there is a one year statute of limitations for section 1986 claims. Marino v. Bowers, 483 F. Supp. 765, 769 (E.D. Pa. 1980), aff'd, 657 F.2d 1363 (3d Cir. 1981).

 Accordingly, D'Aurizio's section 1986 claim in this case fails both because he does not state a valid section 1985(3) claim against the defendants and because he waited for more than one year to file his claim. *fn18"

 Pendent Jurisdiction

 This Court cannot exercise pendent jurisdiction over state law claims unless, at a minimum, there is:

 

a federal claim of sufficient substance to confer subject matter jurisdiction on the court. The substantiality of the federal claim is ordinarily determined on the basis of the pleadings. If it appears that the federal claim is subject to dismissal under F. R. Civ. P. 12(b)(6) or could be disposed of on a motion for summary judgment under F. R. Civ. P. 56, then the court should ordinarily refrain from exercising jurisdiction in the absence of extraordinary circumstances.

 Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 195-96 (3d Cir. 1976) (citations omitted); see also University of Maryland at Baltimore v. Peat, Marwick, Main & Company, 996 F.2d 1534, 1540 (3d Cir. 1993).

 D'Aurizio alleges state law claims -- tortious interference and LAD violations -- against the moving defendants. However, D'Aurizio's federal civil rights claims are subject to dismissal by this Court and there are no "extraordinary circumstances" justifying retention of pendent jurisdiction over the state law claims in this case.

 Accordingly, defendants' summary judgment motion for an Order of dismissal of plaintiff D'Aurizio's Amended Complaint as to defendants James Nichols and Carmine Verdicchio is hereby granted.

 JOSEPH A. GREENAWAY, JR., U.S.D.J.

 Dated: April 28th 1997

 ORDER

 JOSEPH A. GREENAWAY, JR., District Judge,

 This matter having been opened to the Court by Sinisi, Van Dam, Sproviero & Sokolich, attorneys for defendants James Nichols and Carmine Verdicchio, and the Court having considered the submissions of the parties, and good cause appearing,

 IT IS on this 28th day of April, 1997

 ORDERED that defendants' motion for summary judgment, pursuant to Fed. R. Civ. P. 56(c), for an Order of dismissal of plaintiff's Amended Complaint with respect to defendants -- James Nichols and Carmine Verdicchio -- be and hereby is granted; and

 IT IS FURTHER ORDERED that a copy of this Order be served on all parties within seven (7) days of the date of this Order.

 JOSEPH A. GREENAWAY, JR., U.S.D.J.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.