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Diaz v. City of Passaic

United States District Court, D. New Jersey

January 28, 2019

RICHARD DIAZ, Plaintiff,
CITY OF PASSAIC, et al, Defendants.

         Not for Publication



         The current matter comes before the Court on the motions to dismiss filed by (1) Gary Schaer, Peter Rosario, and Zaida Polanco[1] (collectively the "Individual Defendants") (D.E. 32) and (2) the unopposed motion of Alex Blanco (D.E. 39). Plaintiff Richard Diaz opposed the Individual Defendants' motion (D.E. 35), and the Individual Defendants filed a brief in reply (D.E. 39).[2] The Court reviewed all the submissions in support and in opposition, and considered the motions without oral argument pursuant to Fed.R.Civ.P. 78(b) and L. Civ. R. 78.1(b). For the reasons stated below, the Individual Defendants' motion is GRANTED and Blanco's motion is GRANTED IN PART and DENIED in part.


         This matter involves allegations that Plaintiff, the former Public Safety Director for Passaic, New Jersey (the "City" or "Passaic"), was unlawfully removed from his position as political retribution for his mayoral campaign. Plaintiff, a former officer and later chief of the Passaic Police Department, became the City's Public Safety Director in 2013. Am. Compl. ¶3. Polanco is a council member with Passaic, Rosario is a commissioner on the City's board of education, Blanco is the former mayor of Passaic, and Schaer is the president of the City's council. Id. ¶ 8. Schaer is also allegedly the political "boss" of the City and "has de facto control over the City government through political influence as City Council President and as a member of the New Jersey Assembly, through his patronage power, and through his ability to influence State aid decisions about and for the City." Id.¶ 9.

         In September 2016, after a meeting with Defendants Schaer and Blanco, Diaz was placed on administrative leave with pay. Id. ¶14. Plaintiff was suspended based on allegations that he interfered with City personnel during an investigation into a sexual harassment complaint from a City employee. Id.¶14-15. Plaintiff contends that the charges against him are false. Id. ¶ 22. In fact, Plaintiff alleges that the sexual harassment investigation occurred in August 2016, when Plaintiff was on vacation for "a majority" of the month. Id.¶ 19.

         Diaz was suspended "days after" he announced his candidacy for City mayor. After his candidacy announcement, Defendants Rosario and Polanco "visited the Plaintiff as [sic] advised that [Defendant Schaer] was not happy." Id. ¶19. Prior to his suspension, Diaz never received any written or verbal notice of the City's intent to suspend him. In addition, the City failed to provide Diaz with a disciplinary hearing. Plaintiff allegedly remains on administrative leave and has not received a formal disciplinary charge from the City. Id. ¶¶ 21-22.

         On January 30, 2017, non-party Roy Bordamonte, a sergeant with the Passaic Police Department, was summoned to Internal Affairs ("IA") by non-party Detective John Rodriguez. Bordamonte was present when Diaz announced his candidacy for mayor. Id. ¶ 23. Bordamonte was informed that he was a potential witness in an IA investigation about a police report that Bordamonte had prepared and which was found in Plaintiffs desk after the suspension. Id. ¶¶ 24-25. On February 15, 2017, Bordamonte received a target letter from the IA alleging a minor rule infraction for giving confidential information to a civilian. Plaintiff maintains that police reports are not per se confidential and that he is not a civilian. Id. ¶¶26-27. Rodriguez purportedly advised Bordamonte that the IA proceeding "was directed by 'upstairs, '" a euphemism within the Passaic Police Department for the Mayor's Office. Id. ¶¶ 26, 28. On February 17, 2017, another IA officer also told Bordamonte that the investigation was coming from the Mayor's Office. Id. ¶ 29. On March 21, 2017, Bordamonte received a revised target letter and a Preliminary Notice of Discipline seeking his termination. Bordamonte's termination was allegedly in retaliation for his refusal to testify against Plaintiff as to Plaintiffs interference in the sexual harassment investigation and for reporting efforts to coerce Bordamonte to give perjured testimony against Plaintiff. Id.¶ 30.

         Diaz filed suit in state court, alleging, among other things, 42 U.S.C. §§ 1983 and 1988 claims against the City, John Doe, and ABC entities. The City removed the matter to this Court on December 15, 2016. D.E. 1. On January 12, 2018, Diaz filed an Amended Complaint that added Defendants Schaer, Blanco, Polanco and Rosario, among others.[4] D.E. 19. The Amended Complaint generally alleges that Defendants violated several of Plaintiffs constitutional rights. Diaz alleges that Defendants' actions were done in retaliation for his mayoral campaign. See generally Am. Compl. To that end, the Amended Complaint asserts the following claims: (1) procedural due process violation pursuant to 42 U.S.C. §§ 1983 and 1988; (2) substantive due process violation pursuant to 42 U.S.C. §§ 1983 and 1988; (3) retaliatory and due process violations under the New Jersey Civil Rights Act ("NJCRA"); (4) equal protection violation under the NJCRA; (5) a Monell claim under the NJCRA; (6) request for injunctive relief against the City; and (7) a claim for respondeat superior. Id.

         Blanco filed an Answer to the Amended Complaint on January 23, 2018 (D.E. 22), then filed his instant motion to dismiss pursuant to Rule 12(b)(6) on April 30, 2018 (D.E. 39). The Individual Defendants filed their motion to dismiss on March 2, 2018. D.E. 31. The Individual Defendants seek to dismiss the Amended Complaint in its entirety arguing that Plaintiff fails to allege specific facts as to each Individual Defendant's wrongful conduct, and also raise specific issues regarding Plaintiffs procedural due process claim (Count One), substantive due process claim (Count Two), equal protection claim (Count Four), and a Section 1985 claim (which does not appear to be pled). D.E. 31.


         Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss for "failure to state a claim upon which relief can be granted." For a complaint to survive dismissal under the rule, it must contain sufficient factual matter to state a claim 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)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although the plausibility standard "does not impose a probability requirement, it does require a pleading to show more than a sheer possibility that a defendant has acted unlawfully." Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal quotation marks and citations omitted). As a result, a plaintiff must "allege sufficient facts to raise a reasonable expectation that discovery will uncover proof of [his] claims." Id. at 789.

         In evaluating the sufficiency of a complaint, district courts must separate the factual and legal elements. Fowler v. UPMC Shady side, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements of the elements of a claim are legal conclusions, and therefore, not entitled to a presumption of truth. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however, "must accept all of the complaint's well-pleaded facts as true." Fowler, 578 F.3d at 210. Even if plausibly pled, however, a complaint will not withstand a motion to dismiss if the facts alleged do not state "a legally cognizable cause of action." Turner v. J.P. Morgan Chase & Co., No. 14-7148, 2015 WL 12826480, at *2 (D.N.J. Jan. 23, 2015).

         A Rule 12(b) motion must be filed before a responsive pleading. Fed.R.Civ.P. 12(b) ("A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed."). A Rule 12(c) motion for judgment on the pleadings, however, may be filed after the pleadings are closed. Fed.R.Civ.P. 12(c). In addition, Rule 12(h) provides that the defense of failure to state a claim may be raised through a Rule 12(c) motion for judgment on the pleadings or a Rule 12(b)(6) motion to dismiss. Fed.R.Civ.P. 12(h). Courts apply the same standard when analyzing the defense of failure to state a claim for a Rule 12(b)(6) motion and a Rule 12(c) motion. Turbe v. Gov't of V.I., 938 F.2d 427, 428 (3d Cir. 1991).

         Here, Blanco answered the Amended Complaint before filing his Rule 12(b)(6) motion. As a result, Blanco's motion is procedurally improper. But given that Blanco could simply re-file the instant motion as a Rule 12(c) motion and because a Rule 12(c) motion for failure to state a claim is reviewed under the same standard as a Rule 12(b)(6) motion, the Court will construe Blanco's motion as having been filed pursuant to Rule 12(c). See, e.g., Rivera v. Camden Bd. of Educ, 634 F.Supp.2d 486, 488 (D.N.J. 2009) (construing motion to dismiss filed after answer as a Rule 12(c) motion).


         Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 and the NJCRA, N.J.S.A. 10:6-2. Section 1983, in ...

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