United States District Court, D. New Jersey
McNulty United States District Judge
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.
allegations of the complaint are assumed to be true only for
purposes of this motion to dismiss.
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)
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.
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)
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."
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.
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)
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)
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
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)
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.
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.)
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.)
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)
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)
complaint asserts six claims:
• Count One: First Amendment
retaliation, 42 U.S.C. § 1983 (against all defendants)
• 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.
• 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.
• Count Five: Intentional infliction of
emotional distress (against Capt. Mos) (Compl. ¶¶
• Count Six: First Amendment
Retaliation, 42 U.S.C. § 1983 (against City of Newark)
(Compl. ¶¶ 55-64).
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)
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).
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).
"[t]he plausibility standard is not akin to a
'probability requirement'. . .
for more than a sheer possibility." Iqbal, 556
U.S. at 678.
Counts 1 (All defendants) and 6 (City of Newark) - 42 U.S.C.
§ 1983 Claims
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.
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)).
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.
Count 1 - liability under § 1983
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)
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)).
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).
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. The City separately asserts that Lt.
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 ...