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POLLOCK v. CITY OF OCEAN CITY

June 13, 1997

KENNETH POLLOCK, Plaintiff,
v.
CITY OF OCEAN CITY, OCEAN CITY POLICE DEPARTMENT, PUBLIC SAFETY DIRECTOR DOMINIC LONGO, BUSINESS ADMINISTRATOR RICHARD DEANEY, MAYOR HENRY KNIGHT, PERSONNEL DIRECTOR CHARLES ZIMMERMAN, and JOHN DOE CITY COUNCILMEMBERS one through ten, Defendants.



The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 Plaintiff instituted this action against the City of Ocean City, its various agencies and officials, alleging that denying him promotion to deputy police chief and removing him as deputy coordinator of emergency management violated his civil rights and state statutory and common law. Defendants now move to dismiss his 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. Although his failure to promote claims do not have a valid constitutional basis and are not cognizable under 42 U.S.C. § 1983, plaintiff's complaint does set forth a valid federal claim for First Amendment retaliation. Therefore the Court will grant in part and deny in part defendants' motion to dismiss his federal claims. Because the Court has supplementary jurisdiction over plaintiff's state-law claims, it will deny defendants' motion to dismiss them for want of jurisdiction.

 I. BACKGROUND *fn1"

 Since 1969 plaintiff Captain Kenneth Pollock has worked as a police officer for the City of Ocean City (the "City"). Plaintiff was promoted to sergeant in 1973, to lieutenant in 1976, and to police captain in 1987. In 1989, plaintiff was appointed to serve as deputy coordinator of emergency management in addition to his position as police captain. As deputy coordinator, plaintiff earned an additional $ 6,000.00 per year.

 In 1992, plaintiff inquired to then-Police Chief and Public Safety Director Dominic Longo about a possible promotion to deputy police chief. Chief Longo responded that he would more likely promote his personal friend Captain James Nickles to deputy police chief. Although plaintiff reportedly scored higher than Capt. Nickles on a civil service exam, and although plaintiff is a veteran, Chief Longo did not promote plaintiff to deputy police chief and instead, in July, 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 ...


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