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Heine v. Commissioner of Department of Community Affairs of State

United States District Court, D. New Jersey

September 18, 2018

ELLEN HEINE, et al. Plaintiffs,



         Plaintiff Ellen Heine sues, along with others, as an owner, occupant, or person otherwise interested in a building at 515 Van Bussum Avenue in Garfield, New Jersey (the "Property"). Familiarity with my several prior opinions on dispositive motions is assumed, and this Opinion should be read in conjunction with them. (See ECF nos. 50, 74, 97, 103, 127, 143.)

         Now before the Court is the motion for summary judgment (ECF no. 164) filed by the Commissioner of the Department of Community Affairs of the State of New Jersey (the "Commissioner" of "DCA"). The current operative pleading is the Seventh Amended Complaint ("7AC", ECF no. 87). As to the Commissioner of DCA, my most recent substantive rulings dismissed most of the 7AC. (See Opinion ("Dismissal Op.", ECF no. 97), and Order ("Dismissal Order", ECF no. 98); Memorandum and Order denying motion for reconsideration ("Reconsideration Op."), ECF no. 103.) What remain are certain claims under 42 U.S.C. § 1983 and the Fair Housing Act for injunctive relief, asserted against the Commissioner and focused on the Garfield Property. It is to those remaining injunctive claims that the Commissioner's motion for summary judgment is directed.

         For the reasons stated herein, the Commissioner's motion for summary judgment is granted.

         I. Background

         A. Prior Court Decisions

         Some prior litigations involving the Garfield Property (and others) are relevant. I begin by quoting my summary of two prior State court decisions from the Dismissal Opinion:

The first decision is Heine's appeal from separate court orders which, after trial, fined her $1500 for refusing to allow warrantless inspections, and fined her $1750 for maintaining three hazardous conditions in and around her Garfield building. State v. Heine, 424 N.J.Super. 48, 35 A.3d 691 ( N.J.Super.Ct.App.Div. 2012). The Appellate Division agreed with Heine that the local ordinance, as applied, was unconstitutional insofar as it punished Heine's refusal to permit a warrantless inspection. However, it rejected Heine's challenge to the Garfield property maintenance code as vague, and likewise rejected her claim of selective enforcement.

         The second decision involves the DCA's determination that plaintiff Heine's Garfield building was an unlicensed rooming house:

Petitioner Ellen Heine appeals from the August 11, 2011 final decision of the Commissioner of the New Jersey Department of Community Affairs (Department). The Commissioner adopted the initial decision, dated July 14, 2011, of the Administrative Law Judge (ALJ), Barry E. Moscowitz.
This action concerns a property where petitioner and five or six other persons resided. The property, on Van Bussum Avenue in Garfield, had been cited for violations of the construction code and fire safety laws. In September 2010, the Commissioner notified petitioner that she was in violation of the Rooming and Boarding House Act of 1979, N.J. Stat. Ann. § 55;I3B-1 to -16. Petitioner requested and received a hearing, which took place before the ALJ on January 8, March 15, and May 17, 2011, followed by the submission of briefs.
In his initial decision, the ALJ determined that the property was a "rooming house" under N.J. Stat. Ann. § 55:13B-3(h), and that petitioner was its primary owner under N.J. Stat. Ann. § 55:13B-3(f), but that she did not have a valid license to operate a rooming house, and no licensed operator was available as required under N.J. Stat. Ann. § 55.13B-8. Pursuant to that provision, the ALJ deemed petitioner to be the operator, found her responsible for the failure to comply, see N.J. Stat. Ann. § 55.13B-10(a), and determined that a $5, 000 civil penalty was appropriate under N.J. Stat. Ann. § 55:13B-10(b).
Heine v. Dep't of Cmty. Affairs, Bureau of Rooming & Boarding House Standards, No. A-2113-11T1, 2013 WL 1759919, at *1 ( N.J.Super.Ct.App.Div. April 25, 2013). The Appellate Division affirmed DCA's final decision that Heine failed to comply with a state statute requiring a license to operate a rooming house and assessing a $5, 000 civil penalty. It considered Heine's argument that the State's definition of a rooming house is discriminatory and unconstitutional, but found it lacked sufficient merit to require discussion in a written opinion.

(Dismissal Op. at 2-4)[1]

         A third case, Heine v. City of Garfield, Civ. No. 11-2655, 2016 WL 8674693 (D.N.J. Dec. 23, 2016), likewise involves the Garfield Property at issue in this case. It is brought on behalf of Ms. Heine and purportedly on behalf of "Tenants at 515 Van Bussum Ave., Grieco and Ruppert," as well as other parties. That case, which challenges the City's warrantless inspections of the Property, remains pending. The Hon. Esther Salas of this Court has dismissed certain of the claims, and a dispositive motion is briefed and pending.

         A fourth decision, also by District Judge Salas, has been entered in Heine v. Dir. of Codes & Standards, Civ. No. 15-8210, 2017 WL 3981135 (D.N.J. Sept. 11, 2017) (Copy at Ex. H, ECF no. 164-3 at 50) (the "8210 Action"). Noting that the same plaintiffs, including plaintiffs here, had filed multiple, repetitive actions, Judge Salas dismissed the complaint in the 8210 Action with prejudice.[2] I focus on the aspects of her decision that are most relevant here.

         The claims in the 8210 Action involved properties in Montclair and New Brunswick, as well as the Garfield Property that is the subject of this action. Six of the twenty-one named plaintiffs either were tenants of or had a financial connection to the Garfield Property. Defendants included the Commissioner of DCA.[3]

         Judge Salas first dismissed claims involving the towns of Montclair and New Brunswick on res judicata grounds.[4] (Slip Op. 12-18) She then turned to the allegations against DCA.

         As to DCA, Judge Salas again applied res judicata. (Slip. Op. 18-23) The claims against the Commissioner of DCA, she found, had been finally adjudicated in prior actions relating to the properties in Montclair and New Brunswick. Those claims against DCA, as Judge Salas described them, were (a) that DCA exercised inadequate oversight as to the municipalities' code enforcement activities; and (b) that it violated the Constitution by the manner in which it promulgated or enforced regulations under the Rooming and Boarding House Act of 1979, the Uniform Construction Code, and the Uniform Fire Code. Those claims, held Judge Salas, had already been decided in DCA's favor and against the plaintiffs, including Heine, by final judgments entered in the three actions cited. (See n.4, supra.)

         The 8210 Action's addition of Garfield plaintiffs (such as the Griecos), Judge Salas held, did not negate the res judicata effect of the earlier Montclair and New Brunswick judgments. The federal complaint in the 8210 Action, she wrote, did not "identif[y] any additional conduct by the DCA" that would distinguish the current complaint from the prior ones. (Slip op. at 21-22) Thus the 8210 Action's claims as to DCA had already been adjudicated.

         At any rate, Judge Salas wrote, the allegations against the Commissioner of DCA involving, e.g., the Griecos and Burke (and therefore the Garfield Property) failed to meet Rule 8's pleading standards. (Slip Op. 20 n.23). The Complaint in the 8210 Action alleged generally that DCA somehow exercised inadequate oversight and violated the Constitution in relation to rooming house, fire safety, and construction regulations. (Slip Op. 19) It further alleged that the Griecos and others "experienced negativity in housing due to single status" because their residence had been incorrectly designated as a rooming house. They allegedly sought to reoccupy the Garfield Property, which the City had closed five years previously based on an Imminent Hazard Notice. Nothing about these allegations, wrote Judge Salas, came close to factually alleging a federal claim. (Slip Op. 20 n.23).[5]

         Judge Salas carefully analyzed the grounds for dismissal and concluded, particularly in light of the plaintiffs many prior related actions, that amendment would be futile. The 8210 Action was therefore dismissed with prejudice.

         B. Procedural History

         In this action the plaintiffs, Ellen Heine, et at, identify themselves as, among other things, "occupants and tenants and beneficiaries" of a building at 515 Van Bussum Avenue in Garfield, New Jersey (the "Property"). (7AC ¶ 1) It is alleged that the Property was improperly regulated as a rooming house by the DCA, and/or improperly closed based on code violations and fire hazards. Plaintiffs filed the 7AC against the Commissioner of DCA in his official capacity.

         Governmental entities also named as defendants were the Bureau of Rooming and Boarding House Standards ("BRBHS") (a subdivision of DCA); the Bergen County Division of Youth and Family Services ("DYFS"); and "other N.J. state agencies and entities." All claims have been dismissed against those defendants. (See Dismissal Opinion, ECF no. 97; Dismissal Order, ECF no. 98.) Also named as a defendant in one count was J.P. Morgan Chase, N.A. I granted Chase's motion to dismiss the 7AC. [See Opinion and Order, ECF nos. 127, 128; Order and Opinion on Reconsideration, ECF nos. 142, 143.)[6] The only remaining defendant, then, is the Commissioner of DCA.

         C. Surviving Allegations of the 7AC

         In my prior Dismissal Opinion (ECF no. 97) I noted that all claims for damages, except for one under the Americans with Disabilities Act ("ADA"), had earlier been dismissed for lack of jurisdiction under the Eleventh Amendment. The 7AC, however, added claims for declaratory and injunctive relief. For the most part these, too, failed to survive Eleventh Amendment scrutiny; the only claims as to which I found subject matter jurisdiction were federal-law claims against the Commissioner of the DCA for injunctive relief under 42 U.S.C. § 1983, Title II of the ADA, and the Fair Housing Act ("FHA"). I then held that the complaint failed to state a cause of action under the ADA, but did state a claim for injunctive relief under section 1983 and the FHA.

         As to surviving issues, for ease of reference I quote a relevant portion of the Dismissal Opinion:

a. Injunctive Relief under S 1983 and the FHA
As discussed, the Court has subject matter jurisdiction only as to Plaintiffs' § 1983 and FHA claims against the Commissioner, insofar as they seek prospective relief-in practical terms, an injunction.
To obtain injunctive relief, the court must consider whether: "(1) the moving party has shown actual success on the merits; (2) the moving party will be irreparably injured by the denial of injunctive relief; (3) the granting of the permanent injunction will result in even greater harm to the defendant; and (4) the injunction would be in the public interest." Coffelt v. Fawkes, 765 F.3d 197, 201 (3d Cir. 2014) (quoting Shields v. Zuccarini, 254 F.3d 476, 482 (3dCir. 2001)).
As to injunctive relief, the allegations of ongoing harm are quite thin; the buildings, for example, seem to have been closed or demolished, [fn. omitted] The Complaint does, however, allege ongoing effects such as denial of access, deterioration of the Garfield property, foreclosure proceedings, and so on.
There are many reasons, relating to standing or the merits, why the remaining claims might not survive scrutiny. The State, however, focused primarily on matters such as the preclusive effect of my prior ruling or res judicata, grounds which I have found inapplicable. The merits of the claims have not been thoroughly briefed. I do note, however, that the Complaint, it is true, asserts a bewildering variety of half-expressed theories.
Most if not all would probably be doomed by a showing that the properties were closed based on basic health and safety violations, as opposed to any concern unique to regulation of rooming houses or their occupants. We are, however, at the pleading stage, and consideration of such factual matters would be premature.

(Dismissal Op. pp. 20-21)

         II. ...

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