Baldeo v. City of Paterson, Civ. No. 18-05359 (KM) (ESK)

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Writing for the CourtKEVIN MCNULTY, U.S.D.J.
PartiesSIRRANO KEITH BALDEO, Plaintiff, v. CITY OF PATERSON, COUNCILMAN WILLIAM MCKOY, COUNCILWOMAN RUBY N. COTTON, COUNCILWOMAN MARITZA DAVILA, COUNCILMAN MICHAEL JACKSON, COUNCILMAN DOMINGO MENDEZ, COUNCILMAN KENNETH M. MORRIS, JR., COUNCILMAN ANDRE SAYEGH, COUNCILMAN LUIS VELEZ, COUNCILMAN SHAHIN KHALIQUE, COUNCILMAN MOHAMMAED AKHTARUZZAMAN, COUNCILMAN JULIO TAVAREZ, and JOHN DOES A-Z, Defendants.
Docket NumberCiv. No. 18-05359 (KM) (ESK)
Decision Date31 December 2020

SIRRANO KEITH BALDEO, Plaintiff,
v.
CITY OF PATERSON, COUNCILMAN WILLIAM MCKOY, COUNCILWOMAN RUBY N. COTTON,
COUNCILWOMAN MARITZA DAVILA, COUNCILMAN MICHAEL JACKSON, COUNCILMAN DOMINGO MENDEZ,
COUNCILMAN KENNETH M. MORRIS, JR., COUNCILMAN ANDRE SAYEGH,
COUNCILMAN LUIS VELEZ, COUNCILMAN SHAHIN KHALIQUE,
COUNCILMAN MOHAMMAED AKHTARUZZAMAN,
COUNCILMAN JULIO TAVAREZ, and JOHN DOES A-Z, Defendants.

Civ. No. 18-05359 (KM) (ESK)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

December 31, 2020


OPINION

KEVIN MCNULTY, U.S.D.J.:

Plaintiff Sirrano Keith Baldeo publishes a local newspaper and has been a frequent critic of the Paterson City Council. He alleges that the Council1 has taken various actions against him and his newspaper. In response, he has sued the Council under 42 U.S.C. § 1983 and the New Jersey Civil Rights Act ("NJCRA"), N.J. Stat. Ann. § 10:6-2, for violations of his federal and state constitutional rights. The Council moves for summary judgment. (DE 39.)2 For the following reasons, the motion is GRANTED.

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I. BACKGROUND

A. Facts

Baldeo published a newspaper called The New Jersey Pulse (formerly The Paterson Pulse) that covered issues in Northern New Jersey. (Baldeo Dep. at 11:13-22.) He also ran a Facebook page called "The New Jersey Pulse News Opinions and Editorial." (Id. at 69:7-11.) In articles and posts, he described personal disputes with Councilmembers, criticized the Council, and otherwise voiced his opinions on Paterson's governance. (E.g., DE 39-8.) He also attended Council meetings to air his issues. (Baldeo Dep. at 144:19-21.) What happened at three Council meetings as well as certain actions by Councilmembers form the basis for his claims. I describe each separately below.

1. March 22, 2016 Meeting

Mr. Baldeo testified that he attended a Council meeting on March 22, 2016 where he accused the Council of "[h]aving their own demons." (Id. at

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142:9-43:2.) After that statement, he was removed from the Council Chamber and prevented from speaking further. (Id. at 150:4-51:4.)3

2. April 5, 2016 Meeting

Mr. Baldeo attended an April 5, 2016 special meeting of the Council. The meeting was led by Council President William McKoy and was confined to certain topics, such as school drop-off zones. (Mtg. Tr. at 3:23-7:10.) One portion of the meeting was dedicated to public comment. (McKoy Decl. ¶ 2.) The Council usually circulated a sign-up sheet prior to meetings for members of the public who wished to speak. The Council would then recognize those individuals during the public comment period. (Id.)

For this meeting, no one had signed the sheet, so at one point President McKoy asked if any members of the public wished to address any of the designated topics. (Mtg. Tr. at 16:15-18:8.) A Paterson resident named Ernest Rucker indicated his desire to speak, and President McKoy recognized him. (Id. at 18:9-14.) Mr. Rucker stated that Mr. Baldeo had written negative things about him, and he criticized Mr. Baldeo's actions against the Council. (Id. at 18:13-20:23.)

When Mr. Rucker finished, he indicated that someone else, a Mr. Donald Lynch, wanted to speak. Mr. Baldeo interjected, stating "There's a few things I have to say because he didn't put his hand up." (Id. at 20:25-21:5.) President McKoy nonetheless recognized Mr. Lynch, who made similar criticisms of Mr. Baldeo. (Id. at 21:8-22:24.)

When Mr. Lynch finished, President McKoy moved to close the public portion of the meeting. (Id. at 22:25-23:1.) Mr. Baldeo again spoke up and said, "I have to speak, sir." (Id. at 23:2.) But the Councilmembers moved forward with a roll call vote to close the public portion, with all voting in favor. (Id. at 23:3-24:3.) The public portion was closed, and no members of the public spoke again. (Id.)

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3. April 7, 2016 Meeting

Mr. Baldeo attended and attempted to film an April 7, 2016 meeting. In the Council Chamber, there is a rail, much like that in a courtroom, that separates the Councilmembers' bench from the public seating. (Video 1 at 0:00-1:00.) Mr. Baldeo placed his camera on that rail, and President McKoy repeatedly instructed him prior to the start of the meeting that, although he could film, he was not permitted to set his camera up on the railing. (Id.) President McKoy explained that it had long been the policy of the Chamber that nothing from the public was to be set on the rail (paper, food, etc.). (Id.)

As the meeting went on, Mr. Baldeo failed to comply, so President McKoy instructed the police officer in the Chamber that Mr. Baldeo could either comply with his requests or be escorted out. (Video 2 at 9:00-15.) The officer approached Mr. Baldeo and spoke with him. (Id. at 9:15-30.) During that conversation, President McKoy stated that he was not requesting that Mr. Baldeo stop filming, only that he remove the camera from the railing. (Id. at 9:45-52.) When Mr. Baldeo continued to debate with the officer, President McKoy asked that he be removed. (Id. at 10:45-50.) Mr. Baldeo then left the Chamber. (Id. at 11:30-12:00.)

4. Newspaper Removal

City Hall has a dedicated space on the first floor where the public may leave newspapers for distribution. (McKoy Decl. ¶ 5.) Mr. Baldeo alleges that President McKoy removed his newspapers from City Hall. (Compl. ¶ 17.) He states that he left his newspaper outside the Council Chamber on the third floor, and that before the April 7 meeting, President McKoy took those copies and placed them in the trash. (Id. ¶ 18; Pl. SMF ¶ 73.) President McKoy states that he did not direct anyone to remove Mr. Baldeo's newspapers and that he "did not remove all of [Mr. Baldeo's] newspapers from City Hall." (McKoy Decl. ¶¶ 6-7.)

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5. Police Protection Request

Following these events, Mr. Baldeo alleges that he wrote a letter to the Paterson Police Department and Mayor's Office requesting individual police protection at future meetings. No one responded to his request, and he stopped going to meetings out of fear for his personal safety. (Compl. ¶¶ 23-25; Baldeo Dep. at 176:2-10; DE 39-6 ¶ 16.) Nonetheless, police officers are usually present at Council meetings. (See Video 2 at 9:00-15.)

6. "Ban" on Receiving Notices

Mr. Baldeo alleges that the Council provides notices and information about meetings to local newspapers, but removed his newspapers from the distribution list in retaliation. (Compl. ¶ 27.) This claim seems to be based on the New Jersey Open Public Meetings Act ("OPMA") (see Baldeo Dep. at 188:23-190:1), which provides that, prior to a meeting, a public body must provide advance notice and an agenda to at least two newspapers. N.J. Stat. Ann. §§ 10:4-8(d), 10:4-9(a). For some time, the Council provided notice to multiple newspapers (more than the statutory minimum), including The New Jersey Pulse and The Paterson Pulse. (See Video 1 at 3:20-30.) But, according to Mr. Baldeo, the Council voted in July 2016 to remove his newspapers from the distribution list, and a clerk "informed him that the order to remove his newspaper came from the Council President McKoy." (Pl. SMF ¶ 81.) President McKoy, however, states that he never ordered that Mr. Baldeo's newspapers be "banned." (McKoy Decl. ¶ 7.)

7. Private Investigator

Finally, Mr. Baldeo alleges that the Council hired a private investigator, Harry Melber, to conduct surveillance of him and Mrs. Baldeo. (Compl. ¶ 34; see also Baldeo Dep. at 83:19-22.) However, Mr. Baldeo has not presented any evidence—in fact, he has denied possession of any—showing that the Council hired Mr. Melber. (See Baldeo Dep. 113:22-115:22.)

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B. Procedural History

Over two years after the first Council meeting described above, Mr. Baldeo and his wife sued the Council as well as the City attorney and business administrator (plus John Doe defendants). (Compl. ¶¶ 1-4.) The Baldeos asserted (1) a § 1983 claim for federal constitutional violations, (2) a NJCRA claim for federal and state constitutional violations, (3) a § 1985(3) claim, and (4) various tort claims. (Id. ¶¶ 38-82.) I dismissed the tort claims with prejudice, the claims against the City attorney and business administrator without prejudice, and the claims by Mrs. Baldeo without prejudice. Baldeo v. City of Paterson, Civ. No. 18-5359, 2019 WL 277600, at *1 (D.N.J. Jan. 18, 2019).

The Complaint has not been amended, so what remain are Mr. Baldeo's § 1983 and NJCRA claims against the Council (Counts 1 and 2). Those counts lump all the acts described above together and assert indiscriminately that they violate the First, Fifth, and Fourteenth Amendments to the U.S. Constitution, and Article I, Paragraphs 1, 6, and 18 of the New Jersey Constitution. (Compl. ¶¶ 37-50.) After discovery, the Council moves for summary judgment on those claims. (DE 39.)

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a motion for summary judgment, a court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . . the burden on the moving party may be discharged by 'showing'—that is, pointing out to

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the district court—that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

Once the moving party has met that threshold burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must...

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