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Nieves-Hall v. City Of Newark

United States District Court, D. New Jersey

September 26, 2019

Lieutenant Grissel Nieves-Hall, Plaintiff,
v.
City of Newark, Anthony Ambrose and Captain Camilo Mos, Defendants.

          OPINION

          Kevin McNulty United States District Judge

         Lieutenant Grissel Nieves-Hall of the Newark Police Department alleges First Amendment retaliation and other employment-related claims. Before the Court are three motions to dismiss her complaint for failure to state a claim, pursuant to Fed.R.Civ.P. Rule 12(b)(6), brought by defendants the City of Newark, Director of Public Safety Anthony Ambrose, and Captain Camilo Mos. (DE 3, 6, 11). For the reasons provided below, defendants' motions to dismiss are granted in part, but for the most part denied.

         I. Factual Allegations[1]

         The allegations of the complaint are assumed to be true only for purposes of this motion to dismiss.

         Plaintiff Nieves-Hall is currently an employee of the Newark Police Department ("NPD"). (Compl. ¶ 6) She was hired on February 27, 1995, and has since been promoted within the NPD. She currently holds the rank of Lieutenant. (Id.) She has no disciplinary record and has received awards for her service. [Id.) Defendant Camilo Mos served as Police Captain for the City of Newark ("the City") and was Lt. Nieves-Hall's immediate supervisor. (Id. ¶ 4) Defendant Anthony Ambrose is the Director of Public Safety for the City. (Id. ¶ 3)

         Lt. Nieves-Hall states that she was "a very outspoken supporter of Newark mayoral candidate Shavar Jeffries (Jeffries)" and that she exercised "her U.S. Constitutional First Amendment Freedom of Speech and Assembly" to support Jeffries and speak out on his behalf. (Id. ¶ 7) Lt. Nieves-Hall asserts that she appeared in a commercial on Jeffries' behalf in which she endorsed his candidacy. (Id. ¶ 8) Defendant Ambrose is alleged to have been a supporter of Jeffries' opponent, Ras Baraka, who ultimately was elected mayor and appointed Ambrose Director of Public Safety. (Id. ¶ 7)

         Lt. Nieves-Hall broadly asserts that the City has allowed Director Ambrose and Capt. Mos "to abuse, harass, humiliate, excoriate, denounce, castigate, exploit, degrade, debase (and impetuously transfer) [her] for several years now, without properly or thoroughly monitoring their activities or investigating" her complaints. (Id. ¶ 9) She alleges that the City allowed Director Ambrose and Capt. Mos to retaliate against her without stepping in, making her "day to day life within the NPD virtually impossible, intolerable and unbearable, " and creating "an atmosphere of lawlessness within the NPD." (Id. ¶ 10)

         More specifically, Lt. Nieves-Hall asserts that her troubles began in April 2016, in response to her support of Jeffries. (Id. ¶¶ 11, 12) On April 16, 2016, Capt. Mos "began to curse and scream at the plaintiff because she refused to follow his illegal order." (Id. ¶ 13) She does not specify what this "illegal order" was, but states that Capt. Mos refused to listen to her "attempt[] to explain the illegality of his order." (Id.) It was at this time, she alleges, that she realized Capt. Mos had a "preconceived" and "irrational bent/propensity toward her." (Id.)

         On May 4, 2016, she again received a call from Capt. Mos in which he spoke to her in a degrading manner and ordered her to "'go to the fucking hospital and find out' certain things about that prisoner." (Id. ¶ 14)

         Despite these incidents, on August 24, 2016 Nieves-Hall was promoted to Lieutenant and was assigned to the police academy, where for some time she had no contact with Capt. Mos. (Id. ¶ 15)

         On October 5, 2016, Lt. Nieves-Hall received another call from Capt. Mos in which he directed her "to take a police action" that she claims was a "pragmatic impossibility." (Id. ¶¶ 16-17) She alleges that she tried to calmly explain this to Capt. Mos; he replied, "I don't want to hear any fucking excuses, I'm the Captain, make it happen." (Id. ¶ 17)

         Two days later, on October 7, 2016, Lt. Nieves-Hall reported to Capt. Mos's office to turn in reports. After reading one report, Capt. Mos "became visibly distraught and upset, and stated Vhat the fuck is this, I didn't ask you for this report."' (Id. ¶ 18). Lt. Nieves-Hall states that Capt. Mos then "stood up in a clear and unmistakable threatening manner" and continued yelling at her stating "you don't like taking orders from me, it's just me and you here, I'm going to charge you with insubordination, I don't need problems from you, you are a fucking problem like the rest of them." (Id. ¶ 18) Capt. Mos's behavior, in her view, constituted violations of N.J. Stat Ann §§ 2C:12-1 (assault), 2C:33-2 (disorderly conduct), and 2C:33-4 (harassment). (Id.) Capt. Mos is then alleged to have said "I don't need you, you can do whatever you want, I don't need you." (Id.) Lt. Nieves-Hall states that she then told Capt. Mos that she would be requesting a transfer from his command. (Id.)

         Lt. Nieves-Hall asserts that after her request for a transfer, "the hostile work environment became increasingly heightened." (Id.) She alleges that from around April 2016 through the filing of the initial complaint in November 2018, Capt. Mos would use a patrolman or a field sergeant subordinate to her to communicate to her and give her orders in an effort to undermine her authority and embarrass her. (Id. ¶¶ 20-21)

         Lt. Nieves-Hall filed complaints with the Newark Office of Affirmative Action ("OAA"). (Id. ¶ 24) Lt. Nieves-Hall suggests that OAA refused to investigate some of her complaints, while commencing a "bogus/sham internal affairs investigation of Capt. Mos to 'cover' itself." (Id. ¶ 25) Lt. Nieves-Hall alleges that OAA only interviewed a few people then closed its "mock" investigation. (Id. ¶ 25)

         Lt. Nieves-Hall alleges that Director Ambrose was aware of Capt. Mos's behavior towards her. (Id. ¶ 22) She also alleges that Director Ambrose failed to take any action and abandoned her so that she was still subject to Capt. Mos's behavior. (Id.)

         From around April 2018 to November 2018, Lt. Nieves-Hall was offered new positions on three occasions, but each time was denied the position by Director Ambrose without explanation. (Id. ¶¶ 26-28) She states that she was first denied a transfer to the sixth precinct in April 2018, then was denied the position of executive officer of the communications division, and then just prior to filing the complaint was denied a transfer to the Special Victims' Division under a new captain. (Id.)

         Ultimately, Lt. Nieves-Hall attributes Capt. Mos's and Director Ambrose's conduct to her support of Jeffries. (Id. ¶¶ 30-31) Because of this support, she says, defendants have mistreated her in an effort to get her to resign from NPD. (Id. ¶ 32)

         On November 14, 2018, Lt. Nieves-Hall filed a complaint in Essex County Superior Court. Lt. Nieves-Hall then voluntarily dismissed her complaint without prejudice. On April 12, 2019, Lt. Nieves-Hall filed her complaint in this Court. (DE 1)

         The complaint asserts six claims:

Count One: First Amendment retaliation, 42 U.S.C. § 1983 (against all defendants) (Compl. ¶¶33-34);
Count Two: Claim parallel to Count One under the New Jersey Civil Rights Act, N.J. Stat. Ann. § 10-6-2(C) (against all defendants) (Compl. ¶¶ 35-40);
Count Three: Violation of the New Jersey Conscientious Employee Protection Act, N.J. Stat. Ann. § 34:19-1, et seq. ("CEPA") (against all defendants) (Compl. ¶¶ 41-49);
Count Four: Violation of New Jersey Worker Freedom from Employer Intimidation Act, N.J. Stat. Ann. § 34:19-9 (against all defendants) (Compl. ¶¶ 50-51);
Count Five: Intentional infliction of emotional distress (against Capt. Mos) (Compl. ¶¶ 52-54); and
Count Six: First Amendment Retaliation, 42 U.S.C. § 1983 (against City of Newark) (Compl. ¶¶ 55-64).

         In May 2019, each defendant moved to dismiss Lt. Nieves-Hall's complaint for failure to state a claim. (DE 3, 6, 11) Defendant Capt. Mos incorporates by reference the arguments made in the briefing of Director Ambrose and the City. (DE 11-2 at 4) Lt. Nieves-Hall opposes those motions. (DE 15)

         II. Standard

         Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if it fails to state a claim upon which relief can be granted. The defendant, as the moving party, bears the burden of showing that no claim has been stated. Animal Science Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n. 9 (3d Cir. 2011). For the purposes of a motion to dismiss, the facts alleged in the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).

         Federal Rule of Procedure 8(a) does not require that a complaint contain detailed factual allegations. Nevertheless, "a plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." BellAtl Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the complaint's factual allegations must be sufficient to raise a plaintiffs right to relief above a speculative level, so that a claim is "plausible on its face." Id. at 570; see also West Run Student Housing Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

         While "[t]he plausibility standard is not akin to a 'probability requirement'. . .

         it asks for more than a sheer possibility." Iqbal, 556 U.S. at 678.

         III. Discussion[2]

         A. Counts 1 (All defendants) and 6 (City of Newark) - 42 U.S.C. § 1983 Claims

         i. Standard

         Counts 1 and 6 of the complaint allege First-Amendment-based violations of 42 U.S.C. § 1983.

The First Amendment enshrines the right of the people to petition the government for redress of grievances. U.S. CONST, amend I. When that right is infringed upon by state-as opposed to federal-officials, Section 1983 of the Civil Rights Act of 1871 provides a remedy; Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. Section 1983 allows a party who has been deprived of rights, privileges, or immunities secured by the Constitution to seek damages and injunctive relief. See id.

         Section 1983 is not in itself a source of substantive rights; it provides a remedy for violations of rights protected by other federal statutes or by the U.S. Constitution. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). Therefore, in evaluating a § 1983 claim, a court must first "identify the exact contours of the underlying right said to have been violated" and determine "whether the plaintiff has alleged a deprivation of a constitutional right at all." Id. (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)).

         A prima facie case under § 1983 requires a plaintiff to demonstrate that: (1) a person deprived her of a federal right; and (2) the person who deprived her of that right acted under color of state law. Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)). There is no question here that Capt. Mos and Director Ambrose allegedly acted under color of state law; they are police officials who were acting in the course of their official duties when they are alleged to have violated Lt. Nieves-Hall's rights.

         ii. Count 1 - liability under § 1983

         Lt. Nieves-Hall asserts in Count 1 that all defendants violated her "US Constitutional First Amendment rights to Freedom of Speech and Freedom of Assembly" when they retaliated against her for her support of mayoral candidate Jeffries. (Compl. ¶ 34)

         To assert a claim for First Amendment retaliation under § 1983, a plaintiff must allege: "(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action." Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)).

         The case law has adapted First Amendment claims to the peculiar context of public employment. "A public employee must show that, among other things, his or her speech is constitutionally protected. A statement is protected by the First Amendment if: (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have an adequate justification for treating the employee differently from any other member of the general public as a result of the statement he made." Young v. Twp. of Irvington, 629 F.App'x 352, 357 (3d Cir. 2015) (internal citation and quotation marks omitted). Speech concerns a matter of public concern if it can "be fairly considered as relating to any matter of political, social, or other concern to the community." Green v. Philadelphia Hous. Auth., 105 F.3d 882, 885-86 (3d Cir. 1997), as amended (Mar. 13, 1997) (citations omitted). Defendants seemingly concede, however, that Lt. Nieves-Hall was speaking as a citizen when she exercised her First Amendment rights, that she was speaking on a matter of public concern when she publicly supported Jeffries, and that there would have been no justification for their treatment of Lt. Nieves-Hall on the basis of her political statements (if that had occurred, of course).

         Defendants collectively move to dismiss Lt. Nieves-Hall's § 1983 claim because she has not pleaded a deprivation of her own constitutional rights. (DE 3-1 at 16) Capt. Mos asserts that the complaint makes conclusory allegations that do not demonstrate misconduct on his part. (DE 11-2 at 7) Director Ambrose claims that Lt. Nieves-Hall's § 1983 claim must be dismissed because he is entitled to qualified immunity.[3] The City separately asserts that Lt.

         Nieves-Hall has failed to allege the Monell prerequisites for municipal liability, i.e., that she has not alleged that Capt. Mos and Director Ambrose acted pursuant to "some custom or policy of the City to ...


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