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Edouard v. City of Long Branch

United States District Court, D. New Jersey

December 4, 2018



          PETER G. SHERIDAN, U.S.D.J.

         This matter comes before the Court on defendants' Motion for Partial Dismissal of Plaintiffs Second Amended Complaint. Plaintiff Alphonse Edouard, pro se, filed this second amended complaint against the City of Long Branch (Long Branch) and the City's Tax Assessor, John Butow, alleging violations of 42 U.S.C. § 1983 and the Open Public Records Act, N.J.S.A. § 47:1A-1 to -13. (2nd Am. Compl. ("SAC"), ECF No. 43).


         In his complaint, Plaintiff sets forth the following facts. Plaintiff owns a 2, 589 square foot condominium located in Long Branch, New Jersey. (Id. at ¶¶ 4, 15). On November 23, 2016, Plaintiff was notified that the appraised value of his condominium had increased to $771, 000, when the value had previously been assessed at $660, 000. (Id. at ¶ 19). Plaintiff thereafter contacted Long Branch's City Manager, Kevin Hayes, to request information about why the assessed value of his condominium had increased. (Id. at ¶ 20). Plaintiff informed Hayes this his neighbor's condominium had a lower assessment ($46, 000) and that unit faces the ocean and has more square footage than his condominium. (Id. ¶ 21). Plaintiff alleges that despite efforts to speak with Hayes, he was ignored. (Id.)

         Plaintiff also reached out to Defendant John Butow, Long Branch's Tax Assessor, in an attempt to determine "the method used to value his condominium." (Id. at ¶ 22). Plaintiff alleges that Butow refused to meet with him or respond to his questions. (Id.) Finally, Plaintiff alleges that he wrote to Mayor Adam Schneider to inform him that Butow had refused to meet with him about his tax assessment. (Id. at ¶ 23). Plaintiff claims that the Mayor and Counsel did not respond to his letter. (Id.) In an attempt to contact Mayor Schneider, Plaintiff contacted the Mayor's office, where he again spoke to Hayes, who "cursed" at him and "hung up the phone." (Id. at ¶ 24).

         Plaintiff is a Haitian-American, and a practicing Roman-Catholic. (Id. at ¶ 16). In the past, he has litigated claims against Long Branch, during which time he alleges that the City Officials "became familiar with Plaintiffs ethnic and religious identity." (Id. at ¶ 17). Plaintiff alleges that non-Jewish minorities are "consistently charged substantially more in taxes for properties that were traditionally lower in value." (Id. at ¶ 25). To support this contention, Plaintiff explains that on January 19, 2016, Susan Hodes, the owner a neighboring condominium, informed Plaintiff that she was able to lower her tax assessment by meeting with Butow. (Id. at ¶ 26). Hodes is "Jewish and Caucasian." (Id.) Plaintiff claims that they both are "similarly situated" because they both own similar property, and both require the services of the tax assessor in relation to their property. (Id. at ¶ 27). Plaintiff alleges that "Defendants denied him the services that they extended to Ms. Hodes on account of his religion, ethnicity, and skin color." (Id. at ¶ 28).

         Plaintiff alleges the following counts in his amended complaint: (1) violation of his right to Procedural Due Process against all Defendants; (2) violation of his right to Equal Protection (Religion) against Representative McClinton;[1] (3) violation of his right to Equal Protection Violation (Ethnicity) against Defendants; (4) Discrimination in Real-Estate Related Transactions Against all Defendants (42 U.S.C. § 3605); and (5) and a violation of the Open Public Records Act. N.J.S.A § 47:1A-1.


         On a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), the Court is required to accept as true all allegations in the Complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Third Circuit set forth a three-part analysis for determining whether not a complaint may survive a motion to dismiss for failure to state a claim:

First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).

         "This means that [the] inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). While a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. Iqbal, 556 U.S. at 678-79; see also Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997). A complaint should be dismissed only if the well-pleaded alleged facts, taken as true, fail to state a claim. See In re Warfarin Sodium, 214 F.3d 395, 397-98 (3d Cir. 2000). The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir.), cert, denied, 531 U.S. 1149 (2001).

         "The pleader is required to 'set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist.'" Kost v. Kozakewicz,1 F.3d 176, 183 (3d Cir. 1993) (quoting 5A Wright & Miller, Fed. Practice & Procedure: Civil 2d ยง 1357 at 340). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, ... . Factual allegations must be enough to raise a right to relief above the speculative level, ... on ...

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