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Salkin v. Labrosse

United States District Court, D. New Jersey

December 13, 2019

RICHARD SALKIN, Plaintiff,
v.
JOHN LABROSSE, et al., Defendants.

          OPINION

          WILLIAM J. MARTINI. U.S.D.J.

         Plaintiff Richard Salkin, the former attorney for the Board of Education of Hackensack, New Jersey, brings this civil rights and defamation action against Hackensack Mayor John Labrosse; Hackensack School Board ("HSB") Members Frances Cogelja, Lance Powell, and Carlos Velez (together, "Candidate Defendants"); their campaign manager Wendy Martinez; Vision Media Marketing ("Vision"); and Vision's principal Philip Swibiniski (collectively, "Defendants"). Plaintiff alleges that during a campaign for three positions on the HSB, Defendants defamed Plaintiff and made statements about his job performance and political affiliations that resulted in his constructive discharge. The matter comes before the Court on Defendants' motions to dismiss the civil rights claims (Counts One and Two). ECF Nos. 62 ("Candidate Defendants' Motion"), 63 ("Labrosse Motion"), 64 ("Swibinski Motion"), & 66 ("Martinez Motion"). For the reasons set forth below, the motions are GRANTED.

         I. BACKGROUND

         The basic facts and procedural history of this matter are set forth in the Court's June 13, 2019 Opinion ("June Opinion"), familiarity with which is assumed. ECF No. 43. In short, Plaintiff alleges that due to the Candidate Defendants' false and defamatory statements made during their 2018 campaign for seats on the HSB, Plaintiff was constructively discharged. In the June Opinion, the Court dismissed Plaintiffs civil rights claims because the conduct at issue occurred while the Candidate Defendants were private citizens acting alone, and thus Plaintiff failed to plead conduct "under color of state law." Id. at 6.

         The Court permitted Plaintiff to amend his Complaint. Plaintiff did so on June 27, 2019. ECF No. 48. Due to a filing error, Plaintiff filed a Third Amended Complaint ("TAC"), ECF No. 53. The TAC asserts three claims: (1) First Amendment retaliation and Section 1983 conspiracy against all Defendants except Vision;[1] (2) violations of New Jersey's Civil Rights Act ("CRA") against the same Defendants; and (3) defamation by all Defendants.

         II. STANDARD OF REVIEW

         Federal Rule of Civil Procedure ("FRCP") 12(b)(6) provides for the dismissal of a complaint if a plaintiff fails to state a claim upon which relief can be granted. The movant bears the burden of showing the complaint must be dismissed. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). "[A]ll allegations in the complaint must be accepted as true, and the plaintiff must be given the benefit of every favorable inference to be drawn therefrom." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). The court does not accept "legal conclusions" as true, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         To survive a 12(b)(6) motion, "a complaint must contain sufficient factual matter ... to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility 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. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.

         III. DISCUSSION

         While Defendants filed four separate motions to dismiss, they all generally argue that Plaintiff failed to state a claim on which relief can be granted because, inter alia, (1) Plaintiff failed to plausibly allege action under color of state law and (2) regardless, Defendants are entitled to qualified immunity. The Court agrees with Defendants.

         A. Section 1983 Claim (Count One)

         To allege a. prima facie case under Section 1983, a plaintiff must demonstrate that a person, acting under color of state law, deprived her of a federal right. Marran v. Marran, 376 F.3d 143, 155-56 (3d Cir. 2004) (citing Berg v. County of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000)). Courts analyze Section 1983 claims in two parts, which may be addressed in either order: whether plaintiff has alleged a violation of a right secured by the Constitution and the laws of the United States and whether the alleged deprivation was committed by a person acting under color of state law. Sprauve v. W. Indian Co. Ltd., 799 F.3d 226, 229 (3d Cir. 2016) (cleaned up).

         1. Under Color of State Law

         The requirement under the second prong that the person act "under color of state law" confines Section 1983 liability to "those who deprive persons of federal constitutional or statutory rights 'under color of any statute, ordinance, regulation, custom, or usage' of a state." Kach v. Hose,589 F.3d 626, 646 (3d Cir. 2009) (quoting Leshko v. Servis,423 F.3d 337, 339 (3d Cir. 2005)). "[M]ere[] private conduct, no matter how discriminatory or wrongful" does not fall within the scope of Section 1983. Sullivan, 526 U.S. at 49 (1999) (quoting Blum v. Yaretsky,457 U.S. 991 (1982)). But a non-government official or entity can act under color of law if "the private party has ...


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