Falcone v. Dickstein

• Decision Date: 06 September 2022
• Docket Number: Civil Action 3:22-cv-921
• Parties: GEORGE FALCONE, Plaintiff, v. NEAL DICKSTEIN, personally and in his capacity as the Superintendent of Freehold Public Schools, MICHELLE LAMBERT, personally and in her capacity as the President of the Freehold Board of Education, MICHAEL S. AMOROSO, personally and in his capacity as the Vice President of the Freehold Board of Education, DEBRA COSTANZA, personally and in her capacity as a member of the Freehold Board of Education, ELENA O'SULLIVAN, personally and in her capacity as a member of the Freehold Board of Education, MARY COZZOLINO, personally and in her capacity as a member of the Freehold Board of Education, MEG THOMANN, personally and in her capacity as a member of the Freehold Board of Education, NEIL GARGIULO, personally and in his capacity as a member of the Freehold Board of Education, KERRY VENDITTOLI, personally and as a member of the Freehold Board of Education, FREEHOLD BOARD OF EDUCATION, FREEHOLD TOWNSHIP POLICE DEPARTMENT, MYROSLAV AFELDI, personally and in his capacity as a Freehold Township Police Officer, JOHN DOES 1-25, said names being fictitious, Defendants.
• Court: U.S. District Court — District of New Jersey

GEORGE FALCONE, Plaintiff,
v.
NEAL DICKSTEIN, personally and in his capacity as the Superintendent of Freehold Public Schools, MICHELLE LAMBERT, personally and in her capacity as the President of the Freehold Board of Education, MICHAEL S. AMOROSO, personally and in his capacity as the Vice President of the Freehold Board of Education, DEBRA COSTANZA, personally and in her capacity as a member of the Freehold Board of Education, ELENA O'SULLIVAN, personally and in her capacity as a member of the Freehold Board of Education, MARY COZZOLINO, personally and in her capacity as a member of the Freehold Board of Education, MEG THOMANN, personally and in her capacity as a member of the Freehold Board of Education, NEIL GARGIULO, personally and in his capacity as a member of the Freehold Board of Education, KERRY VENDITTOLI, personally and as a member of the Freehold Board of Education, FREEHOLD BOARD OF EDUCATION, FREEHOLD TOWNSHIP POLICE DEPARTMENT, MYROSLAV AFELDI, personally and in his capacity as a Freehold Township Police Officer, JOHN DOES 1-25, said names being fictitious, Defendants.

Civil Action No. 3:22-cv-921

United States District Court, D. New Jersey

September 6, 2022

MEMORANDUM AND ORDER DISMISSING THE COMPLAINT

PETER G. SHERIDAN, U.S.D.J.

1

This case is before the Court on Defendants' motions to dismiss, (ECF Nos. 6, 12), Plaintiff George Falcone's Amended Complaint, (ECF No. 5). One motion is by the Freehold Township Police Department and Officer Myroslav Afeldi (“Police Defendants”), (ECF No. 6), and the other is by the Freehold Board of Education (“BOE”), its members, and the Freehold Public Schools (“BOE Defendants”), (ECF No. 12). The dispute between the parties originates with BOE's mask mandate, issued pursuant to executive orders issued by Governor Philip D. Murphy during the COVID-19 pandemic. The Amended Complaint primarily alleges the Defendants violated Falcone's constitutional rights to freedom of speech and expression by (1) retaliating against his maskless attendance of a BOE meeting, and (2) by cancelling a subsequent meeting in anticipation of his maskless attendance. Oral argument was held on July 20, 2022.

Because Falcone lacks standing to bring his claims, the Amended Complaint is dismissed under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of jurisdiction. In sum, Falcone's alleged injuries are not traceable to Defendants because the BOE was required to impose a mask mandate pursuant to executive orders issued by Governor Murphy.^[1]

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I.

The initial question before the Court is that ofjurisdiction. Soc'y Hill Towers Owners' Ass 'n v. Rendell, 210 F.3d 168, 175 (3d Cir. 2000). Judicial authority requires the existence of a case or controversy. U.S. Const. art. III, § 2. The question is critical to address fully before any discussion of the merits of the case. A judgment on the merits without jurisdiction would essentially amount to an advisory opinion, which the Supreme Court has long held to be counter to the role of federal courts. Muskrat v. United States, 219 U.S. 346, 362 (1911); Hayburn's Case, 2 Dall. 409 (1792).

Article III constitutional standing requires the following three elements: (1) the plaintiff must have suffered an injury in fact that is actual or imminent, not conjectural or hypothetical; (2) the injury has to be fairly traceable to the challenged action of the defendant; and (3) it must be likely that the injury will be redressed by a favorable decision.^[2] Lujan v. Defs. of Wildlife, 504 U.S. 555, 56061 (1992). The injury must also be “particularized” by “affect[ing] the plaintiff in nonmoving party to ‘determine whether they plausibly give rise to an entitlement to relief.'” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). However, a court “may consider documents integral to or explicitly relied upon in the complaint, or any undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.” In re Asbestos Prods. Liab. Litig. (No. VI), 822 F.3d 125, 133 (3d Cir. 2016) (internal quotation marks omitted).

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a personal and individual way”; it also must be “concrete” and “actually exist.” Spokeo, Inc. v. Robins, 578 U.S. 330, 339-40 (2016).^[3]

Relevant here, the injury must be traceable in the sense that it would not have been caused “but for” the acts of the defendants. See Pitt News v. Fisher, 215 F.3d 354, 361 (3d Cir. 2000). Further, the injury must not be “the result of the independent action of some third party not before the court . . . .” Bennett v. Spear, 520 U.S. 154, 167 (1997). “If the injury-in-fact prong focuses on whether the plaintiff suffered harm, then the traceability prong focuses on who inflicted that harm.” Toll Bros. v. Twp. of Readington, 555 F.3d 131, 142 (3d Cir. 2009).

II.

Falcone submits that he was injured in two ways that relate to the BOE's mask mandated:^[4]

(1) He received a summons for trespassing after appearing at a February 8, 2022, BOE meeting without wearing a mask.^[5] He submits his

4

masklessness was a form of speech or

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