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John Herrmann and Dana Herrmann v. City of Hackensack

March 16, 2011

JOHN HERRMANN AND DANA HERRMANN
PLAINTIFFS,
v.
CITY OF HACKENSACK, ET AL .,
DEFENDANTS.



The opinion of the court was delivered by: Hon. William J. Martini

OPINION

MEMORANDUM OPINION

I. INTRODUCTION

On May 7, 2010, Plaintiffs, Officer John Herrmann of the Hackensack Police Department ("HPD"), and Officer Dana Herrmann filed a two-count federal civil rights action against Defendant HPD Chief of Police, C. Kenneth Zisa, and others, alleging that the Defendants violated their constitutional rights. On July 30, 2010, Plaintiffs filed a two count Amended Complaint ("Complaint"). Defendants have filed a motion to dismiss. For the reasons elaborated below, the Court will GRANT in part, and DENY in part the motion.

II. FACTUAL BACKGROUND ALLEGED IN THE COMPLAINT

The gravamen of the Complaint is that the Hackensack Chief of Police, Defendant Zisa, engaged in a pattern of extortion, against other HPD officers, i.e., Plaintiffs, seeking, among other things, political donations to further Zisa's political career and the political career of those allied with them, including candidates for office within the Policemen's Benevolent Association ("PBA") of Hackensack. It is further alleged that those who were not allied with Zisa, including those officers who refused to donate to Zisa and his allies' political campaigns, were subject to retaliation and threats of retaliation in violation of Plaintiffs' First Amendment free speech and freedom of association rights.

Specifically, with regard to the two named Plaintiffs, the Complaint alleges Plaintiffs were told that they were expected to donate to Zisa's campaigns for public office.

Plaintiffs knew that other officers who did not donate faced repercussions. Out of fear for repercussions for not donating, Plaintiffs donated to Zisa's political campaigns over the course of 2000 to 2008.

The complaint further alleges that Defendant Sergeant Trezza told Plaintiffs that a failure to vote for candidate Clouse in the June 2008 PBA election and failing to show their votes to Sergeant Barrios -- who stood in front of the ballot box -- would result in retaliatory actions. The Plaintiffs did not reveal their votes to Barrios and Clouse lost the election. Afterwards, Trezza advised Plaintiff John Herrmann to buy tables for Zisa fundraisers in order to get back into Zisa's good graces.

In the summer of 2009 both Herrmanns were chosen by Sergeant Lloyd to be Field Training Instructors for new recruits. In January 2010, Lloyd presented Zisa with a list of candidates to go to school to become Active Simunition Training Instructors. John Herrman was the top candidate, but Zisa failed to choose Herrmann.

On October 19, 2009, John Herrmann dented a police vehicle bumper. Some time in December 2009, Captain Salcedo, an internal affairs officer, charged him with misuse of public property. The hearing was scheduled for January 7, 2010. Plaintiff chose Patrick Toscano, Esq. as his attorney, who filed a notice of representation with HPD. Toscano had represented other officers who were not supportive of Zisa's political campaigns. Shortly thereafter, Plaintiffs were removed from the list of Field Training Officers. On June 10, 2010, John Herrmann was charged with alleged misconduct in regard to a 2008 investigation. On July 9, 2010, John Herrmann received notice that he was being investigated for an incident that occurred on October 25, 2008. Herrmann argues that all these charges were retaliatory.

Count I asserts a First Amendment claim (freedom of speech and freedom of association) and a Fourteenth Amendment claim under 42 U.S.C. § 1983 against Chief Zisa, Captain Salcedo, and Sergeant Trezza. Count II makes a Section 1983 claim against HPD and the city of Hackensack.

III. STANDARD OF REVIEW

The Defendant's motion to dismiss is brought pursuant to the provisions of Fed. R. Civ. P. 12(b)(6). This rule provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if, accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must be sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. This requirement "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of" necessary elements of the plaintiff's cause of action. Id. Furthermore, in order satisfy federal pleading requirements, the plaintiff must ...


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