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May 2, 2001


The opinion of the court was delivered by: Simandle, District Judge:



This matter is before the Court on the motion of plaintiff, Teresa M. Downey, for leave to file an amended complaint in the wake of this Court's Opinion and Order dated August 7, 2000, dismissing plaintiff's initial complaint for failure to state a claim pursuant to Rule 12(b)(6), Fed.R.Civ.P. The Court specifically found that plaintiff had failed to adequately specify either a colorable federal constitutional violation, or the basis for her concert of action theory of liability under 42 U.S.C. § 1983. The Court accordingly dismissed plaintiff's claims premised on federal law, and dismissed plaintiff's pendent state law claims pursuant to 28 U.S.C. § 1367(c)(3). This dismissal was without prejudice to the plaintiff's right to move within thirty days for leave to file an amended complaint curing the pleading deficiencies that the Court had identified in its Opinion.
Plaintiff now moves to renew her claims in this case, arguing that her proposed amended complaint strengthens and better states her causes of action, and additionally provides sufficient notice of the nature of her claims. All defendants except the Coalition Against Rape and Abuse (CARA) oppose plaintiff's motion to amend. Defendants' primary opposition is that the amended complaint, like the original complaint, would not withstand a motion to dismiss, and therefore granting leave to amend would be futile.
The main issue for decision here is whether plaintiff's amended complaint cures the defects present in the initial complaint, and specifically, whether plaintiff now states actionable claims premised on the federal constitution. For reasons discussed herein, the Court determines that the Amended Complaint has cured the pleading deficiencies the Court previously identified, and will allow plaintiff to amend her complaint consistent with this Opinion. The Court also finds, however, that two of the defendants — Stephen D. Moore and Judge Raymond Batten — have established entitlement to qualified immunity upon plaintiff's claims brought under 42 U.S.C. § 1983 and 1985, which shall be dismissed against them, for reasons explained in Part VII, below.


The events leading to plaintiff Teresa Downey's termination from her position as Executive Director of CARA are discussed in some detail in the Court's Opinion in this case dated August 7, 2000. The allegations of the proposed Amended Complaint are deemed true for the purposes of this motion. As previously noted, in April 1997 CARA hired plaintiff as its Executive Director in order to administer the work of the organization and to vigorously advocate on behalf of victims of domestic violence and sexual assault in Cape May County. (Amended Complaint ¶ 1.) CARA is a non-profit entity which receives public funds for counseling and other services rendered to victims of domestic violence and sexual assault. (Id. ¶ 34.) At the time of her appointment, plaintiff allegedly was already well known by the defendants as an outspoken critic of local government officials, largely due to her involvement in the Susan Negersmith case. (Id. ¶ 13.) The Negersmith case involved an incident where the Cape May County Coroner changed the official cause of death of a young woman from accidental death to homicide, allegedly because plaintiff's public comments concerning officials' poor handling of the case brought immense pressure to bear on the County to re-open the investigation. (Id. ¶¶ 14-15.) Plaintiff also had in the past advocated for the elimination of the then 5-year statute of limitations for rape prosecutions. (Id. ¶ 15.)
After plaintiff was named Executive Director of CARA in April 1997, defendant The Herald published an article on May 7, 1997 about her appointment, noting that plaintiff in the past "gave freeholders fits as she criticized the county's defense of former Coroner Dr. John Napoleon's handling of the Susan Negersmith rape-murder case." (Id. ¶ 17.) A newspaper reporter also sought comment from plaintiff, and asked her how she expected to get along with the freeholders after her involvement in the Negersmith case. Plaintiff responded "The freeholders and CARA have a common goal of reducing the incidents of domestic violence and sexual assaults. We will work with them toward achieving those goals." (Id. ¶ 18.)
In and around June 1997, as part of her job, Ms. Downey submitted to the State of New Jersey Department of Law & Public Safety Criminal Justice Division several grant applications aimed at obtaining state funding. (Id. ¶ 21.) These grant proposals contained anecdotal information from CARA's clients, and were generally critical of law enforcement and the courts in Cape May County. Although the applications did not identify individuals by name, they advanced the position that Cape May County officials were not sufficiently sensitive to the needs of victims and failed to provide them with the relief to which they were entitled under New Jersey law. (Id. ¶ 22.)
Plaintiff specifically alleges that Judge Batten and Moore verbally attacked plaintiff at a meeting of the "domestic violence working group" which was held for the sole purpose of discussing how the legal system might more effectively address the rights of victims of domestic violence. There, plaintiff alleges, defendants Judge Batten and Moore caused to have placed before each person present a copy of a newspaper story in The Herald (also a defendant in this suit) in which Moore and several Cape May County police chiefs denounced plaintiff for her criticism of Cape May County law enforcement in the CARA grant application. (Id. ¶ 32.) Plaintiff alleges that Judge Batten went on to publicly admonish her for criticizing him, asking how could she have done this to him, stating that she was being unfair, that she should personally respond to each allegation made in The Herald's story, that she had committed a disservice to everyone at the present meeting, and that he would be requesting a meeting with the board of trustees of CARA to discuss the grant application. Plaintiff also alleges that defendant Moore at this meeting stated that plaintiff did not know what she was talking about, that he considered this a personal attack against him and Batten, that he was siding with Judge Batten on this matter, and that she should respond to the criticisms she made in the grant application. (Id.)
Plaintiff also alleges that Judge Batten acted under color of state law in preparing written correspondence to her which further criticized her professionalism and her criticism of him and local officials in her grant application, and caused the publication of the letter by newspapers and others who had no reason to know of the letter's existence but for Judge Batten's transmission of the letter to them. (Id. ¶ 34.) Plaintiff alleges that Judge Batten issued this letter on official letterhead and signed it in his official capacity, "J.S.C.", so that its intended readers would be more likely to believe the letter's contents because it came from a judge. (Id.) In concert with this letter and in an effort to destroy plaintiff's position at CARA, plaintiff alleges, Judge Batten began refusing to refer domestic abuse matters to CARA, an agency to which he had regularly referred clientele before plaintiff criticized him. (Id.) CARA was the only agency designated and publicly funded to handle counseling and other social services for victims of domestic violence and sexual assault. (Id.)
Plaintiff also alleges that defendants Cape May County, Batten, Moore, The Herald, and Zelnik publicly and falsely accused plaintiff of refusing to cooperate with law enforcement officials to combat domestic violence and sexual assault. According to plaintiff, these defendants falsely accused plaintiff of canceling meetings with Judge Batten and other law enforcement officials, and causing friction with local law enforcement officials and the court. Plaintiff claims that these allegations of missed meetings left the public with the incorrect impression that she was divisive in her position as Executive Director of CARA. In truth, plaintiff maintains, she had not canceled any meetings with Judge Batten, and had allegedly tried to meet with him and other Cape May County officials on several occasions. (Id. ¶¶ 35-36.)
Plaintiff also alleges that defendants the Freeholders of Cape May County, the Office of the Prosecutor, The Herald, Zelnik, Moore and Batten during this same time period caused to be published several disparaging newspaper articles that grossly exaggerated or made up facts tending to tarnish plaintiff's professional reputation, and which were intended to cause her to lose her job at CARA. (Id. ¶ 40.) Among the articles published were the following:
• On October 1, 1997, defendant The Herald published Moore's criticisms of plaintiff:
I'm losing hope we will be able to restore a working relationship with CARA in view of the fact that they have adopted, by their silence, the positions set forth by Ms. Downey. We are considering whether it would be of greater benefit to victims to be referred to counseling services which have not created such barriers to cooperation with other agencies . . . [Such as] [t]he courts, local police, the prosecutor, victim witness [sic], [and] the hospital.
• On October 22, 1997, The Herald published a story entitled "Judge: CARA's Charges `Uninformed' — Batten says Downey Never observed Court Proceedings She Criticized". This story excerpted the following portion of Judge Batten's letter to plaintiff concerning the grant proposal: "I invite informed and constructive criticism, but I will not allow uninformed and ill-intended criticism to flourish in the name of unfettered and irresponsible advocacy."
• On July 16, 1997, The Herald published an article in which Cape May County Official Ralph Sheets referred to plaintiff's grant application as "unprofessional" and also quoted official Gerald Morton as stating "he was concerned `about the way some employees left' and he was `concerned about Terry Downey's credentials.'"

(Id. ¶¶ 40(a)-40(g).)

The CARA Board of Directors terminated plaintiff from her position at CARA in July 1998. Allegedly undeterred by her firing, The Herald continued to publish articles critical of her tenure at CARA. For example, on July 22, 1998, The Herald published an article headlined "CARA Ousts Downey, 2 Resign from Board", in which the newspaper declared "Downey leaves in her wake ruptured relations with the county, the courts, the office of the County Prosecutor, and County law enforcement officials, all of whom play important roles in the agency's mission". The article also noted that "Superior Court Judge Raymond A. Batten urged Downey to attend the family court whose operations she had criticized, but she reportedly said she didn't have time." (Id. ¶ 44(o).) In this same edition of The Herald, defendant Zelnik wrote an opinion piece stating, "We don't know if the CARA board sacrificed Downey because it was tired of her recalcitrance, because of a staff revolt, or because it finally concluded that a persistent attitude of opposition was not the best way for the agency to perform its mission. But the main thing is, that it fired her." (Id. ¶ 44(p).) Another post-termination column appeared in The Herald on October 14, 1998 stating that "there was no harmony or dialogue between the agency and law enforcement" when Downey was Executive Director of CARA. (Id. ¶ 44(r).) In response to this stream of articles from The Herald, plaintiff alleges, certain board members of CARA wrote the Editorial Board at The Herald admonishing it for publishing "one-sided, slanted" articles which disparaged plaintiff and the agency. (Id. ¶ 45.)
In her complaint filed in this Court July 14, 1999, plaintiff claimed that the above-detailed events were the result of a "campaign" intended to disparage plaintiff, interfere with her employment, and to cause the withholding of funding and resources from CARA. (Id. ¶ 49-53.) As a result of defendants' actions, plaintiff alleges, members of the board of CARA were left with the false impression that plaintiff was not effectively performing her job duties. Plaintiff also contends that CARA took heed of the veiled warnings by defendants that CARA would lose funding and necessary licensing if plaintiff remained in her position. Accordingly, plaintiff argues that CARA took adverse employment action against her in order to save itself.
Plaintiff's initial complaint asserted a variety of state law claims, most notably defamation (Count IV), intentional interference with economic advantage (Count II), wrongful discharge in violation of the New Jersey Law Against Discrimination (NJLAD) (Counts VII & VIII). Plaintiff also asserted a single federal cause of action under 42 U.S.C. § 1983 (Count III). The defendants individually moved to dismiss plaintiff's Counts II, III, IV, VII, and VIII, for failure to state a claim under Rule 12(b)(6), Fed.R.Civ.P.
In the Court's Opinion granting the motions to dismiss, the main focus was upon whether plaintiff had stated actionable claims based on federal law. In the context of plaintiff's § 1983 claim (the sole asserted basis for this Court's jurisdiction) the Court found that the § 1983-based claims in plaintiff's initial complaint were too vague to withstand the defendants' motion to dismiss. (August 7, 2000 Op. at 33.)
The reasons for dismissal of plaintiff's § 1983 claim were threefold. First, the § 1983 count was dismissed because the complaint failed to adequately describe the constitutional deprivations at issue in the case. Although plaintiff stated that her constitutional claims were premised on violations of the First Amendment and the Due Process and Equal Protection clauses, the complaint only mentioned these Constitutional provisions in passing, and thus it was impossible to discern the origin of such claims. (Id. at 27-29.) Second, although the complaint spoke generally of actions by the "defendants", and declared that the state actors' conduct was part of a "pattern or practice", the complaint was too vague to give adequate notice as to the exact nature of this pattern or practice. Moreover, the complaint did not adequately communicate the basis for plaintiff's concert of action theory as between the various defendants, which included a mix of public and private defendants such as a Superior Court Judge, a prosecutor, and a newspaper columnist. (Id. at 29-31.) Third, the § 1983 count was deficient because the individual claims against the state actors were not pleaded with adequate specificity, insofar as plaintiff did not adequately explain which individual state actors allegedly committed which Constitutionally harmful acts. (Id. at 31-33.) Instead, plaintiff improperly "lumped all official defendants together with no specificity as to which defendant's conduct harmed her in what way." (Id. at 33.)
Having determined that plaintiff's § 1983 count failed to state a valid claim, the Court dismissed plaintiff's Count III pursuant to Rules 8, 9, and 12(b)(6), Fed.R.Civ.P. This ruling having eliminated the sole federal cause of action, the Court then dismissed the remainder of the complaint for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) without prejudice to either (1) re-filing all unadjudicated claims in state court or (2) moving for leave to file an amended complaint in this Court pursuant to Rule 15, Fed.R.Civ.P. (Op. at 25, 27, 37.) Plaintiff chose the latter course of action, and filed her motion for leave to file an amended complaint on October 27, 2000. This motion has been addressed by a plethora of legal briefs which have been carefully examined.
The Amended Complaint is better than the original for several reasons. First, the Amended Complaint more clearly sets forth the manner in which the County defendants allegedly interfered with plaintiff's employment with CARA. Plaintiff alleges that they did so by attempting to influence CARA board members to fire her by (a) withholding financial support such as grants, withholding indirect funding by refusing to refer social services clients to CARA, and withholding official approval of office space, (b) surreptitiously meeting with Judge Batten and the newspaper defendants to leak confidential information about Ms. Downey in order to tarnish her professional reputation, and (c) by publicly embarrassing Ms. Downey without just cause at public meetings. (See Amended Complaint ¶¶ 13-16, 20-28, 30-32, 35(a)-(s), 37-44, 61, 63-64, 73.)
Second, the Amended Complaint clarifies the source of the purported federal causes of action in this case. As pled in ¶ 40 of the Amended Complaint, plaintiff alleges that the defendants acted in concert to deprive her of her right to contract with a private employer in violation of the Due Process clause of the Fourteenth Amendment. Plaintiff also alleges that the defendants violated her First Amendment rights when they took action to have her fired in retaliation for her outspoken advocacy for women's rights in Cape May County. Finally, plaintiff alleges that defendants violated her right to Equal Protection under the Fourteenth Amendment inasmuch as she was fired because of gender stereotyping. This gender stereotyping theory seems to hinge on plaintiff's assumption that defendants had it in their minds that females ought to be submissive and uncontroversial, and that Downey did not fit this description. Plaintiff alleges that defendants sought to have plaintiff fired because she did not fit their supposed preconceptions about how females ought to behave. Plaintiff cites no caselaw recognizing gender stereotyping as actionable under § 1983, and the Court is aware of none.
Leave to amend pursuant to Rule 15(a) should be freely given "in the absence of any apparent or declared reason such as undue delay, bad faith . . ., repeated failure to cure deficiencies . . ., undue prejudice to the opposing party . . ., [or] futility of amendment". Foman v. Davis, 371 U.S. 178 (1962). See also Arab African International Bank v. Epstein, 10 F.3d 168 (3d Cir. 1993).
There is no issue of delay or bad faith, and the Court finds that allowing plaintiff to amend at this stage would not unduly prejudice defendants. The Amended Complaint only elaborates upon the theories present in the initial complaint; it does not present new causes of action. Moreover, plaintiff's attempt at amendment has required very little in the way of new briefing by the defendants, who in large part rely upon arguments set forth in their previous briefs in support of their 12(b)(6) motions. Plaintiff's causes of action have not been materially changed between the original complaint and the proposed amendment thereto. Further, the Amended Complaint is an improvement over the original, as it includes greater specificity of detail, as this Court requested in its previous Opinion in this case.

Having determined that the proposed amendment is timely presented, and that the defendants will not be unduly prejudiced by amendment, the only issue remaining issue is whether amendment would nevertheless be futile because the amended complaint would not withstand a motion to dismiss. As now discussed in Part IV below, the Court finds that the Amended Complaint is not necessarily futile in its pleading of the constitutional causes of action, and will grant plaintiff's request for leave to amend.


Section 1983 Standard

Now that plaintiff has come forward with a Amended Complaint that better sets forward the basis of her claims, the Court is able to squarely address the question of whether she has stated a viable claim of deprivation of her constitutional rights. To make a prima facie case under ยง 1983, the plaintiff must demonstrate that a person acting under color of law deprived her of a federal right. See Groman ...

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