United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
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).
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.)
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).
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).
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; (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.
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
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).
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
§ 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 ...