JOHN MICHAEL VAZQUEZ, District Judge.
This matter concerns alleged discrimination by public officials. Plaintiff Muhammed Ojibara brings this action against the City of Irvington,
At the outset, the Court notes that the Plaintiff's FAC is difficult to understand at times. For example, paragraph seven on page three reads in its entirety: "Defendant, New Jersey Transit is[.]" FAC at 3, ¶ 7. No other information is provided. New Jersey Transit is not listed as a Defendant in this action, nor is the Court provided any context for this incomplete sentence.
Plaintiff, who is of Nigerian-descent, applied to become a fire fighter in the Irvington Fire Department but was denied the position on or before September 14, 2016. FAC at 4, ¶ 1-3. Plaintiff also alleges that on September 19, 2016, Detective Wesley "directed Plaintiff to come into the Police Station where he and two unknown police officers arrested Plaintiff for charges of violating Administrative Code. By allegedly refusing to pay prescribed ______ in Jersey City and Newark." Id. at 4, ¶ 4 (emphasis omitted). The underlined section in the quote is at it appears in the FAC; the Court does not know what information Plaintiff intended to insert into the blank space. Plaintiff also does not clarify what "Administrative Code," or alleged violation thereof, he is referring to. Plaintiff alleges that his arrest was unlawful because the arrest was "not [pursuant to] charges for which a warrant could issue or for which an arrest made [sic] by [sic] made." Id. at ¶ 5 (emphasis omitted). Plaintiff alleges that Defendants unlawfully disqualified Plaintiff from consideration for the fire fighter position "for reasons which were false as said alleged offenses were not crimes and would not and could not be disqualifying offenses." Id. at 4, ¶ 7 (emphasis omitted). Again, Plaintiff does not give a description of the alleged offenses. Plaintiff also fails to indicate why the unnamed charges were false.
On August 30, 2018, Plaintiff filed the FAC in the Superior Court of New Jersey, alleging nine counts: (I) "negligent, reckless, wanton disregard for Plaintiff's rights"; (II) "unlawful stop, search, and arrest [under] New Jersey Constitution, Article I, Paragraphs 1, 5, 7"; (III) "false arrest and false charges and imprisonment"; (IV) "New Jersey Constitutional Violation, Peper v. Princeton, 77 N.J. (1978)"; (V) "infliction of severe emotional distress"; (VI) "violation of N.J.S.A. 10:5-12-f[:] places of public accommodations"; (VII) "misuse and abuse of process" under 42 U.S.C. §§ 1983, 1985, 1986, 1988; (VIII) violation of the New Jersey Civil Rights Act ("NJCRA"), N.J.S.A. 10:6-2(c); and (IX) "state created danger." FAC at 5-16. Defendants then removed the action to this Court. D.E. 1. Defendants' indicated that the Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 as to Count VII, which alleges violations of 42 U.S.C. §§ 1983, 1985, 1986, and 1988. D.E. 1 ¶¶ 3-4. Defendants then filed the current motion. D.E. 5. Plaintiff opposed this motion, D.E. 14, and Defendants replied, D.E. 17.
In deciding a Rule 12(b)(1) motion for lack of subject-matter jurisdiction, a court must first determine whether the party presents a facial or factual attack because the distinction determines how the pleading is reviewed.
For a facial attack, "the Court must consider the allegations of the complaint as true," much like a Rule 12(b)(6) motion to dismiss. Bd. of Trs. of Trucking Emps of N. Jersey Welfare Fund, Inc. v. Caliber Auto Transfer, Inc., No. 09-6447, 2010 WL 2521091, at *8 (D.N.J. June 11, 2010) (quoting Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006)). The burden is on the Plaintiff to prove the Court has jurisdiction. Id. (citing Petruska, 462 F.3d at 302). Thus, the district court must find that "the allegations on the face of the complaint, taken as true, allege sufficient facts to invoke the jurisdiction of the District Court" to overcome a facial attack. Culver v. U.S. Dep't of Labor Occupational Safety & Health Admin., 248 F. App'x 403, 406 (3d Cir. 2007) (citing Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006)).
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a defendant to move to dismiss a count for "failure to state a claim upon which relief can be granted[.]" To withstand a motion to dismiss under Rule 12(b)(6), a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint is plausible on its face when there is enough 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). 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.
In evaluating the sufficiency of a complaint, a district court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). A court, however, is "not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions disguised as factual allegations." Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). If, after viewing the allegations in the complaint most favorable to the plaintiff, it appears that no relief could be granted under any set of facts consistent with the allegations, a court may dismiss the complaint for failure to state a claim. DeFazio v. Leading Edge Recovery Sols., 2010 WL 5146765, at *1 (D.N.J. Dec. 13, 2010).
Defendants argue that the Court does not have subject matter jurisdiction over this matter "[t]o the extent that Plaintiff wishes to appeal his removal from the Eligibility List," as Plaintiff "must do so in the New Jersey Superior Court, Appellate Division." Def. Br. at 20 (emphasis added). Indeed, "[t]he exclusive method for review of action or inaction of a [New Jersey] State administrative agency ... is by direct appeal to [to the Appellate Division]." In re Failure by the Dep't of Banking & Ins. to Transmit a Proposed Dental Fee Schedule to OAL, 336 N.J.Super. 253, 261 (App. Div. 2001) (citing N.J. Ct. R. 2:2-3(a)(2)). The FAC does not appear to make such a claim. Plaintiff seeks money damages for alleged discrimination; he does not seek an injunction ordering that he be hired as a fire fighter in Irvington. See FAC at 6-16. In other words, Plaintiff is not appealing CSCB's decision to remove Plaintiff from the Eligibility List in this action.
Turning to the plausibility of Plaintiff's claims, the Court notes at the outset that Plaintiff's FAC is replete with conclusory allegations. The FAC's actual factual allegations are limited and include that (1) CSCB disqualified Plaintiff from consideration for a position in the Irvington Fire Department because of certain unidentified offenses that Plaintiff allegedly committed; and that (2) Detective Wesley arrested Plaintiff for unidentified violations of an unidentified administrative code. FAC at 4, ¶¶ 4, 7. As explained below, the factual allegations are insufficient to meet the plausibility standard.
Plaintiff first brings a claim for "negligent, reckless, wanton disregard for Plaintiff's rights." FAC at 5-6, ¶¶ 1-4. "To establish a prima facie case of negligence, a plaintiff must establish the following elements: (1) duty of care, (2) breach of that duty, (3) proximate cause, and (4) damages." D'Alessandro v. Hartzel, 422 N.J.Super. 575, 579 (App. Div. 2011). Plaintiff makes a number of conclusory allegations as to Defendants' alleged breach. See FAC at 6, ¶ 4(a)-(f) ("Failed to properly evaluate, assess and control their staff"; "Failed ... to take proper, appropriate and/or necessary measures"; "Failed ... to properly train, supervise and monitor"; "Engaged in dilatory tactics"; "Otherwise deviated from the acceptable standard of care"). However, Plaintiff fails to make any specific allegation as to the conduct of Defendants Cobb, Gorczyca, and O'Mullan — other than that they are members of CSCB, generally. Id. at 2, ¶ 3. Such allegation is insufficient to plausibly allege that Defendants Cobb, Gorczyca, or O'Mullan breached a duty owed to Plaintiff.
Moreover, Plaintiff fails to plausibly allege that CSCB breached any duty to Plaintiff. The core of Plaintiff's claim is that CSCB "disqualif[ied] Plaintiff for reasons which were false as said alleged offenses were not crimes and would not and could not be disqualifying offenses." FAC at 4, ¶ 7. However, Plaintiff does not identify the alleged offenses,
Plaintiff next brings a claim for "unlawful stop, search, and arrest [under] New Jersey Constitution, Article I, Paragraphs 1, 5, 7."
Plaintiff also sues for "false arrest and false charges and imprisonment." FAC at 8, ¶¶ 1-3. Plaintiff appears to allege that Defendants "signed Complaints against Plaintiff, which resulted in alleged warrants which resulted in Plaintiff's arrest by Irvington Police." Id. at 8, ¶ 3. Again, however, Plaintiff does not plausibly allege that CSCB had any authority vis-a-vis the arrest of Plaintiff. Count III is dismissed without prejudice.
Plaintiff includes a claim for "New Jersey Constitutional Violation, Peper v. Princeton, 77 N.J. (1978)." FAC at 8-10, ¶¶ 1-10. In Peper, the Supreme Court of New Jersey recognized that New Jersey courts can "enforce rights recognized by the New Jersey Constitution, even in the absence of implementing legislation." 77 N.J. at 76. Thus, the New Jersey Supreme Court allowed a cause of action for discrimination under N.J. Const., Art. I, ¶ 1. Id. at 80. Such discrimination claims require "disparate treatment" or "disparate impact." Id. at 81. Disparate treatment is when "[t]he employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin," and in this type of claim, "[p]roof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment." Id. Disparate impact "involves employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity," Id. at 81-82. Such claims do not require proof of a discriminatory motive. Id. Plaintiff does not plausibly plead disparate treatment or disparate impact. Plaintiff alleges that Defendants denied Plaintiff employment as a fire fighter in Irvington because he was "a black man with a, [sic] African name." FAC at 9, ¶ 4. This allegation is conclusory.
Plaintiff next brings a claim for intentional infliction of emotional distress ("IIED"). FAC at 10-11, ¶¶ 1-5. An IIED claim requires a plaintiff to show that:
Ungvarsky v. Ungvarsky, No. 14-1852, 2015 WL 8373128, at *3 (N.J. Super. Ct. App. Div. Dec. 10, 2015) (quoting Segal v. Lynch, 413 N.J.Super. 171, 191 (App. Div. 2010)). Here, Plaintiff fails to plausibly allege any specific action by Defendants Cobb, Gorczyca, O'Mullan, or CSCB that unjustifiably wronged Plaintiff, let alone rose to the level of outrageousness required for an IIED claim. Count V is dismissed without prejudice.
Plaintiff also asserts a claim for "violation of N.J.S.A. 10:5-4, 10:5-12-f[:] places of public accommodations." FAC at 11-12, ¶¶ 1-6. Section 10:5-4 provides that "[a]ll persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, ... without discrimination because of race, ..., subject only to conditions and limitations applicable alike to all persons." N.J.S.A. § 10:5-4. Section 10:5-12(f) deems it unlawful for an "employee of any place of public accommodation ... to discriminate against any person in the furnishing thereof ... on account of the[ir] race...." N.J.S.A. § 10:5-12(f). As noted, Plaintiff's allegations as to racial discrimination are entirely conclusory. Count VI is dismissed without prejudice.
Plaintiff next raises a claim for misuse and abuse of process under 42 U.S.C. §§ 1983, 1985, 1986, and 1988. FAC at 12-13, ¶¶ 1-6. Abuse of process is "the misuse or misapplication of the legal procedure in a manner not contemplated by law." Simone v. Golden Nugget Hotel & Casino, 844 F.2d 1031, 1036 (3d Cir. 1988). In support of his claim, Plaintiff alleges that "[a]ll charges were dismissed against Plaintiff." FAC at 12, ¶ 2. Plaintiff does not provide any more context for this prior legal action taken against Plaintiff, which appears to serve as the basis for this count. Plaintiff also makes no plausible allegation as to the role of Defendants Cobb, Gorczyca, O'Mullan, or CSCB in this prior proceeding. Plaintiff fails to plausibly plead an abuse or misuse of process by these Defendants.
More fundamentally, Plaintiff does not explain how his alleged abuse of process claim fits within the parameters of Sections 1983, 1985, 1986, and/or 1988. If Plaintiff mistakenly cited those statutes, and instead meant to assert a state law abuse of process violation, then this Court would apparently lack subject-matter jurisdiction. Without a cause of action pursuant to Title 42 of the United States Code, there would apparently be no basis for federal question jurisdiction pursuant to 28 U.S.C. § 1331. Count VII is dismissed without prejudice.
Plaintiff next claim is for violations of the NJCRA, N.J.S.A. § 10:6-2(c). FAC at 13-14, ¶¶ 1-7. The NJCRA provides as follows:
N.J.S.A. § 10:6-2(c). To establish an NJCRA violation in a case such as this, a plaintiff must show that (1) the New Jersey Constitution or laws of New Jersey conferred a substantive right; (2) the defendant deprived the plaintiff of this right; and (3) the defendant was acting under color of law when doing so. Tumpson v. Farina, 218 N.J. 450, 473 (2014). Here, as explained above, Plaintiff has not plausibly shown how Defendants deprived him of any substantive right conferred by the New Jersey Constitution. Count VIII is dismissed without prejudice.
Finally, Plaintiff brings a claim for "state created danger." FAC at 14-16, ¶¶ 1-9. The following elements are essential for a state-created danger claim:
Here, Plaintiff fails to plausibly plead at least the second and fourth elements. Without a description of the disqualifying offenses, the Court cannot conclude that Plaintiff plausibly alleged that Defendants acted with a degree of culpability that shocks the conscience. Additionally, Plaintiff has not plausibly alleged that Defendants created more of a danger to Plaintiff by disqualifying him from the Irvington Fire Department than ignoring the alleged offenses and allowing Plaintiff to become a fire fighter. Finally, even the conclusory allegations appear to fall far short of situations in which state-created danger liability attaches. See, e.g., Gormely v. Wood-El, 218 N.J. 72 (2014). Count IX is dismissed without prejudice.
In sum, the Court grants Defendants CSCB, Cobb, Gorczyca, and O'Mullan's motion to dismiss Plaintiff's FAC. All Counts as to these Defendants are dismissed without prejudice. Plaintiff has thirty (30) days to file a Second Amended Complaint, if he so chooses, consistent with this Opinion. If Plaintiff does not do so, the counts will be dismissed with prejudice.
As noted, the Court denies Defendants' "Eligibility List" argument as to subject-matter jurisdiction. However, while Plaintiff referenced certain federal statutes in the FAC, it is not clear that he is actually relying on any federal statute in light of his allegations. If Plaintiff is not relying on a federal statute or law, then he should so clarify in a Second Amended Complaint. If Plaintiff is not asserting a federal question, then this Court would apparently lack subject-matter jurisdiction, with the result being that the case would be remanded to the Superior Court of New Jersey.
An appropriate Order accompanies this opinion.
