United States District Court, D. New Jersey
ELLEN HEINE, et al. Plaintiffs,
COMMISSIONER OF THE DEPARTMENT OF COMMUNITY AFFAIRS OF THE STATE OF NEW JERSEY et al., Defendants.
MCNULTY, UNITED STATES DISTRICT JUDGE
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.)
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.
reasons stated herein, the Commissioner's motion for
summary judgment is granted.
Prior Court Decisions
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.
second decision involves the DCA's determination that
plaintiff Heine's Garfield building was an unlicensed
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)
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.
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. I focus on the aspects of her decision
that are most relevant here.
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.
Salas first dismissed claims involving the towns of Montclair
and New Brunswick on res judicata
grounds. (Slip Op. 12-18) She then turned to the
allegations against DCA.
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.)
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
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).
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.
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.
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.) The only remaining
defendant, then, is the Commissioner of DCA.
Surviving Allegations of the 7AC
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.
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)