United States District Court, D. New Jersey
MICHAEL VAZQUEZ, U.S.D.J.
current matter comes before the Court on the motions to
dismiss filed by (1) Gary Schaer, Peter Rosario, and Zaida
Polanco (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.
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.
FACTUAL AND PROCEDURAL
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.
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.
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. ¶¶
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.
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. 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
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.
MOTION TO DISMISS STANDARD
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.
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).
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).
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
asserts claims pursuant to 42 U.S.C. § 1983 and the
NJCRA, N.J.S.A. 10:6-2. Section 1983, in ...