Defalco v. Rutgers Univ. Police Dep't, Civil Action No. 15-6607 (MAS) (LHG)

Decision Date10 March 2017
Docket NumberCivil Action No. 15-6607 (MAS) (LHG)
PartiesRe: Defalco v. Rutgers University Police Department, et al.
CourtU.S. District Court — District of New Jersey




All counsel of record

Dear Counsel:

This matter comes before the Court on Defendants Rutgers University Police Department ("RUPD"), Rutgers University ("Rutgers"), Ken Cop ("Cop"), and Michael J. Rein's ("Rein") (collectively, "Defendants") Motion to Dismiss. (ECF No. 18.) Plaintiff William Defalco ("Plaintiff") opposed the Motion (ECF No. 22) and filed a Cross-Motion to Amend (ECF No. 23). Defendants replied. (ECF No. 24.) As Plaintiff failed to appear for the March 8, 2017 oral argument the Court scheduled in this matter (ECF No. 25), the Court decides the matter without oral argument pursuant to Local Civil Rule 78.1. The Court has carefully considered the parties' submissions, and for the reasons stated below, Defendants' Motion to Dismiss is GRANTED and Plaintiff's Cross-Motion to Amend is DENIED.


Plaintiff was employed by Rutgers and served as a police officer in at RUPD. (First Am. Compl. ¶¶ 1-2, ECF No. 5.) At RUPD, Cop was the Chief of Police and Rein served as the Deputy Chief. (Id. ¶¶ 3-4.)

On July 23, 2012, Plaintiff announced his candidacy for Vice President of Lodge 62 of the New Jersey Fraternal Order of Police ("FOP Local 62"), a bargaining union for police officers employed by Rutgers. (Id. ¶¶ 7, 9.) Plaintiff claims that, beginning days after the announcement of his candidacy, he received undeserved discipline and he was wrongfully accused of misconduct associated with his employment on several occasions. (Id. ¶¶ 11-47.) Plaintiff alleges that agrievance he filed with his union in regards to his alleged wrongful discipline was not investigated appropriately. (Id. ¶¶ 25, 46.) Plaintiff also filed several Internal Affairs complaints against non-party supervising officers alleging violations of RUPD's professional standards that he alleges were summarily dismissed without proper investigation. (Id. ¶¶ 26, 30, 47.) Plaintiff alleges that an Internal Affairs complaint filed against him by Rein was pretextual, unfounded, and filed only as a form of retaliation in response to Plaintiff's complaints. (Id. ¶¶ 47-48.) Plaintiff asserts that he was passed over for a promotion and transferred to the night shift without explanation. (Id. ¶¶ 44, 45.) Plaintiff alleges that the acts taken against him were in retaliation for his union membership, and in retaliation for filing charges against his superior officers at RUPD. (Id. ¶ 48.) Plaintiff contends that he had never been subjected to discipline prior to his public declaration that he intended to campaign for a leadership role in the union.2 (Id. ¶ 10.)


When considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court conducts a three-part analysis. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). "First, the court must 'tak[e] note of the elements a plaintiff must plead to state a claim.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Second, the court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Third, once the well-pleaded facts have been identified and the conclusory allegations disregarded, a court must determine "whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief." Id. at 211 (quoting Iqbal, 566 U.S. at 679). A complaint must contain sufficient facts to "put the defendant on notice of the nature of the plaintiff's claim." In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 320 n.18 (3d Cir. 2010) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 565 n.10 (2007)). It is the defendants' burden to show that no claim has been presented. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

A. Count One: Due Process

Count One alleges a violation of due process in Defendants' investigation of allegations against Plaintiff and seeks relief under 42 U.S.C. § 1983. (See First Am. Compl. ¶¶ 50-57.) Plaintiff alleges that Rutgers and RUPD were required by N.J.S.A. § 40A:14-181 to adopt internal affairs policies and procedures consistent with the IAPP issued by the New Jersey Attorney General's Office. (Id. at ¶¶ 52-54.) At the time of the incidents alleged in the Complaint, N.J.S.A. § 40A:14-181 applied to "[e]very law enforcement agency." N.J.S.A. § 40A:14-181 (1997) (amended 2015). The statute required the agencies to adopt policies consistent with the IAPP. Id. On September 1, 2015, the statute was amended, however, to apply to "[e]very law enforcementagency, including a police department of an institution of higher education." N.J.S.A. § 40A:14-181 (emphasis added).

The Court finds that the statute did not apply to RUPD prior to the 2015 amendment.3 The Court's review of the legislative material does not lead to the conclusion that the amendment was a mere clarification. In a prior amendment, the legislature considered campus police departments in another context while drafting an amendment, but declined to add them in this section. Furthermore, the latest version of the IAPP, amended prior to the amendment of the statute, states that it is "primarily intended for implementation by county and municipal agencies" and other agencies should "consult with their legal advisors before implementing specific provisions of the policy." Farella v. Rutgers Univ. Police Dep't, No. 09-4910, 2010 WL 2346660, *7 (D.N.J. June 9, 2010) (citation omitted). Instead, it appears that 2015 the amendment was made with the specific purpose of including campus police departments. Additionally, none of the factors listed in Johnson v. Roselle EZ Quick, LLC point to retroactivity. The Court, therefore, concludes that the statute was not intended as a mere clarification but for the statute to apply to campus police departments. In other words, prior to the 2015 amendment, RUPD was not required to adopt policies consistent with the IAPP.

Moreover, Plaintiff is unable to proceed on a due process claim based upon a violation of policies consistent with the IAPP even if RUPD was required to adopt IAPP at the time of allegations of wrong doing occurred. To prevail on a Section 1983 procedural due process claim, a plaintiff must demonstrate (1) that he was deprived of a protected liberty or property interest under the Fourteenth Amendment, and (2) that the procedures afforded to him failed to comport with the requirements of due process. Hill v. Borough of Kutztown, 455 F.3d 225, 233 (3d Cir. 2006).

Plaintiff alleges, and the Court accepts as true for the purpose of this motion, that RUPD adopted a policy consistent with the IAPP on March 17, 2004, but failed to properly investigate and adjudicate his complaints. (See First Am. Compl. ¶ 8.) Failing to comply with internal rules consistent with the IAPP guidelines, however, does not result in a denial of an officer's due process rights. O'Rourke v. City of Lambertville, 405 N.J. Super. 8, 18-19 (App. Div. 2008). Therefore, even if Rutgers and RUPD were required to have a policy consistent with the IAPP in effect at the time of the pursuant to N.J.S.A. § 40A:14-181, Plaintiff does not have a due process claim for a violation of those policies. The Court dismisses Count One.

B. Count Two: Free Association

Count Two alleges a violation of Plaintiff's right to free association pursuant to the United States and New Jersey Constitutions, seeking relief under Section 1983. (First Am. Compl. ¶¶ 59-62.) Plaintiff must allege "(1) that [he] works for a public agency in a position that does not require a political affiliation; (2) [he] maintained an affiliation with a political party; and (3) that his political affiliation was a substantial or motivating factor in the adverse employment decision." Goodman v. Pa. Turnpike Comm'n, 293 F.3d 655, 663-64 (3d Cir. 2002). Here, Plaintiff has not sufficiently plead that his union membership was a substantial or motivating factor in the adverse employment actions taken against him. The Court finds that Plaintiff only makes vague and unsupported conclusory statements about Defendants' motivations. As such, his statement that the discrimination was based upon his membership is the type of speculation that is not permitted under Twombly. See Twombly, 550 U.S. at 555. The Court, therefore, finds that Plaintiff fails to establish an essential element of the claim and dismisses Count Two.

C. Count Three: Free Speech

Count Three alleges retaliation for Plaintiff exercising his First Amendment right of free speech by filing a grievance with his union. (First Am. Compl. ¶¶ 64-67.) In order to recover for retaliation for exercising his right to free speech, a plaintiff must allege that "(1) the plaintiff[] engaged in protected conduct; (2) the plaintiff[] [was] retaliated against; and (3) the protected conduct was a substantial or motivating factor in the retaliation." Bradshaw v. Twp. of Middletown, 296 F. Supp. 2d 526, 537 (D.N.J. 2003). A plaintiff must also show that he spoke as a private citizen on a matter of public concern. Connick v. Myers, 461 U.S. 138, 147 (1983). If a plaintiff does not speak as a private citizen, or if the speech does not address a matter of public concern, it is not appropriate for federal courts to review personnel decisions of public agencies. Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 386 (2011). Here, Plaintiff alleges that he faced retaliation for grievances he filed about police misconduct. (See First Am. Compl. ¶ 46.) A plaintiff is not speaking as a private citizen when he files an employment grievance, "but rather as employee[] voicing private...

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