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Allen Borntrager, et al v. Chief C. Kenneth Zisa

March 29, 2011

ALLEN BORNTRAGER, ET AL .,
PLAINTIFFS,
v.
CHIEF C. KENNETH ZISA, ET AL .,
DEFENDANTS.



The opinion of the court was delivered by: William J. Martini, U.S.D.J.

(CONSOLIDATED)

OPINION HON. WILLIAM J. MARTINI

MEMORANDUM OPINION

I. INTRODUCTION

On December 23, 2009, Plaintiffs, Officers Allen Borntrager, Frank Cavallo, Vincent Riotto, Scott Sybel, and Rocco Duardo of the Hackensack Police Department ("HPD") filed a federal civil rights action against Defendants HPD Chief of Police, C. Kenneth Zisa, Officer Danilo Garcia, Officer Thomas Salcedo, Officer James Smith, and the City of Hackensack, alleging that the Defendants violated Plaintiffs‟ First Amendment rights. On August 9, 2010, Plaintiffs filed a two-count Amended Complaint ("Complaint").*fn1

Defendant Danilo Garcia filed a motion to dismiss. For the reasons elaborated below, Garcia‟s motion will be GRANTED in part, and DENIED in part.

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 Zisa, including candidates for office within the Policemen‟s Benevolent Association ("PBA") of Hackensack and certain candidates for public office. 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.

More specifically, with respect to Defendant Garcia, the Complaint alleges he instituted administrative and departmental disciplinary charges against Plaintiff Borntrager for pretextual reasons at the direction of Zisa. Furthermore, the Complaint alleges that Captain Salcedo, of internal affairs, ordered Plaintiffs Riotto and Sybel to attend an interview, ordered them to list what drugs they were currently taking, and ordered them to take a drug test. Garcia was present at that interview, and he "googled" the purposes and uses of the drugs that Plaintiffs listed at Salcedo‟s direction. Finally, Plaintiffs allege that the order to take the drug test came from Zisa, and the test itself was in violation of HIPAA*fn2 and the state Attorney General‟s Drug Testing guidelines.*fn3

Count I is brought by all Plaintiffs against all Defendants. It asserts First Amendment freedom of speech and freedom of association claims under 42 U.S.C. § 1983. Count II is brought by all Plaintiffs against the City of Hackensack. It also asserts First Amendment claims under 42 U.S.C. § 1983.

III. STANDARD OF REVIEW

The Defendant‟s motions 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 "provide the ...


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