United States District Court, D. New Jersey
WILLIAM J. MARTINI. U.S.D.J.
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.
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
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; (2) violations of New Jersey's
Civil Rights Act ("CRA") against the same
Defendants; and (3) defamation by all Defendants.
STANDARD OF REVIEW
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,
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."
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.
Section 1983 Claim (Count One)
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).
Under Color of State Law
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 ...