1995, promoted Capt. Nickles to "acting police chief."
By letter dated August 3, 1995, plaintiff notified the City and its police department that he was asserting claims against them under the New Jersey Tort Claims Act, N.J.S.A. §§ 59:8-1 to 8-11, for promoting Capt. Nickles over him. See Complaint P 1:13; Plaintiff's Ex. B (Tort Claims Notice) (alleging personal favoritism, nepotism, and ultra vires acts on the part of City officials). Approximately four weeks after notifying defendants of his claims against them, plaintiff was removed as the City's deputy coordinator of emergency management. Thereafter, defendants reportedly reprimanded plaintiff and circulated negative employment memoranda to the effect that plaintiff violated written orders, wore the improper uniform, and violated special orders. Plaintiff alleges that his removal from the position of deputy coordinator and these reprimands were in retaliation for plaintiff's asserting his legal rights against defendants.
Capt. Nickles retired from the police department in July, 1996 and the City administered another civil service exam to determine the fitness of the candidates for deputy police chief. Plaintiff came in second on this test and defendants never promoted him to deputy police chief. Having never attained the rank of deputy police chief, plaintiff never became eligible to be elevated to police chief.
On December 12, 1996, plaintiff instituted this action asserting claims under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985, the New Jersey Conscientious Employee Protection Act ("C.E.P.A."), N.J.S.A. §§ 34:19-1 to 19-8, and common law tort and contract. Specifically, plaintiff asserts claims (1) for failure to promote plaintiff in violation of his constitutional rights; (2) for retaliation against plaintiff for instituting claims against them; (3) for conspiracy to violate plaintiff's constitutional rights; (4) for negligence; (5) for breach of implied contract; (6) for actions that are ultra vires according to state and municipal rules and regulations; and (7) for adverse employment decisions made in violation of C.E.P.A. Defendants now move to dismiss plaintiff's federal claims for failure to state claims upon which relief can be granted, and to dismiss his pendent state-law claims for want of jurisdiction.
II. MOTION TO DISMISS
A. Applicable Standard
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." In considering a Rule 12(b)(6) motion, a court will accept the allegations of the complaint as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). Dismissal of claims under Rule 12(b)(6) should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Although the court must assume as true all facts alleged, "it is not . . . proper to assume that the [plaintiff] can prove any facts that it has not alleged." Associated General Contractors of Calif., Inc., v. California State Council of Carpenters, 459 U.S. 519, 526, 74 L. Ed. 2d 723, 103 S. Ct. 897 (1983). Finally, when "confronted with [a 12(b)(6)] motion, the court must review the allegations of fact contained in the complaint; for this purpose the court does not consider conclusory recitations of law." Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 179 (3d Cir. 1988) (emphasis added).
B. Failure to Promote
Plaintiff's failure to promote claim rests on 42 U.S.C. § 1983, which provides a civil remedy against those who, under color of state law, deprive others of rights, privileges, or immunities secured by the Constitution and laws of the United States. See West v. Atkins, 487 U.S. 42, 48-49, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988); Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993). To state a due-process claim for denial of a promotion, plaintiff must first show that the individual interests he asserts are within the Fourteenth Amendment's protection of "life, liberty, or property," and that these interests were denied him without "due process of law." U.S. Const. amend. XIV; see also Robb v. City of Philadelphia, 733 F.2d 286, 292 (3d Cir. 1984).
To have a property interest in a benefit that is protected by procedural due process, "a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 569-72, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); see also Robb, 733 F.2d at 292. Moreover, property interests are not generally created by the Constitution. "Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those individuals." Roth, 408 U.S. at 569-72; Robb, 733 F.2d at 292.
Plaintiff cannot claim any legitimate entitlement to a promotion to deputy chief of police. Although plaintiff took the civil service test, scored first, and enjoys preferential treatment as a veteran, he attained no entitlement to the position of deputy chief of police. See Grimes v. City of East Orange, 285 N.J. Super. 154, 164, 666 A.2d 613, 618 (App. Div. 1995); Schroder v. Kiss, 74 N.J. Super. 229, 240, 181 A.2d 41, 47 (App. Div. 1962) (involving a veteran).
One who successfully passes an examination and is placed on an eligible list does not thereby gain a vested right to appointment. The only benefit inuring to such a person is that so long as the eligible list remains in force, no appointment can be made except from that list.
Schroder, 74 N.J. Super. at 240, 181 A.2d at 47. Thus, plaintiff's relative success on the civil service examination gave him no legitimate claim of entitlement under the Constitution or laws of New Jersey to a promotion to deputy chief of police. Accordingly, plaintiff cannot demonstrate a property interest in a promotion that can form the basis of a Fourteenth Amendment due process claim cognizable under § 1983. If he is to succeed with his due-process claim, therefore, he must show a deprivation of his liberty.
Admittedly, the liberty interests protected by procedural due process are broad in scope. See, e.g., Stanley v. Illinois, 405 U.S. 645, 647-49, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972); Bolling v. Sharpe, 347 U.S. 497, 499-500, 98 L. Ed. 884, 74 S. Ct. 693 (1954).
Liberty denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home, and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.