Fisher v. Pratt, 1:17-cv-13248 (NLH/KMW)
| Decision Date | 24 August 2018 |
| Docket Number | No. 1:17-cv-13248 (NLH/KMW),1:17-cv-13248 (NLH/KMW) |
| Parties | DANIEL D. FISHER, SR., Plaintiff, v. STEVEN PRATT, NEW JERSEY STATE FIRE MARSHAL OFFICE, and SOUTHAMPTON TOWNSHIP FIRE DEPARTMENT, Defendants. |
| Court | U.S. District Court — District of New Jersey |
DANIEL D. FISHER, SR.
PEMBERTON, NJ 08068
Appearing pro se
BETSY G. RAMOS
CAPEHART & SCATCHARD
LAUREL CORPORATE CENTER
8000 MIDLANTIC DRIVE - C.S. 5016
SUITE 300
On behalf of Defendants Steven Pratt and Southampton Township Fire Department
On behalf of Defendant New Jersey State Fire Marshal Office
This matter arises from the demolition of Plaintiff Daniel Fisher, Sr.'s house following a fire. Before the Court are a Motion to Dismiss by Defendant New Jersey State Fire Marshal (the "State Defendant") and a Motion to Dismiss or, in the alternative, for a more definite statement by Defendants Steven Pratt and Southampton Township Fire Department (the "Fire Department Defendants"). Also before the Court is Plaintiff's Motion for Leave to Amend.
For the reasons that follow, the Court will grant the State Defendant's Motion to Dismiss, the Court will grant in part and deny in part the Fire Department Defendants' Motion to Dismiss, and the Court will deny, without prejudice, Plaintiff's Motion for Leave to Amend.
The Court takes its facts from Plaintiff's First Amended Complaint. Around 12:35 AM on December 16, 2016, Plaintiff smelled wood burning in his bedroom, which housed a chimney. Plaintiff did not see smoke or fire in his bedroom. Plaintiff proceeded to his dining room, which had a wood stove directly under his bedroom. Plaintiff put the wood fire out and then checked the front and sides of the chimney for excessive heat, finding it cool to the touch.
Plaintiff then returned to his bedroom, where he found a fire burning next to the chimney. Using two fire extinguishers, Plaintiff attempted to put out the fire. After trying unsuccessfully to use a garden hose to put out the fire after the fire extinguishers ran out, Plaintiff dialed 9-1-1. Fifteen to twenty minutes later, a fire truck from the Pemberton Borough Fire Department arrived, followed by the Southampton Township Fire Department and others.
Plaintiff makes various allegations regarding the insufficiency of the firefighting efforts. He alleges "[t]he initial firefighting efforts were misdirecting the water to the east/northeast side of the north end of the house on the second floor." He also alleges at one point "they simply stopped putting water onto the fire for two to three minutes, allowing it to spread into another bedroom on the west side of the house."
Around 2:00 AM, Plaintiff was taken to Virtua Hospital Emergency Room to be treated for smoke inhalation. Plaintiff returned to his home later that morning, where firefighters were still present. Plaintiff was "confronted by a man who stated to [him] that [his] house had to be torn down th[at] very day." Another fireman identified the individual as Steve Pratt, the Chief of the Vincentown Fire Department. Pratt informed Plaintiff "that both the County and New Jersey State FireMarshals" visited the property and "recommended that the house needed to be torn down." While Plaintiff asked to speak to them, Pratt refused to call them or give Plaintiff their contact information. Plaintiff also told Pratt he wanted a structural engineer to examine his house. Pratt told Plaintiff his house was a danger to children. After removing some items from his house, Plaintiff pleads he had a second conversation with Pratt:
Pratt . . . stated to me . . . that he was also an investigator from the State Fire Marshal's Office in Trenton and that he had the backing of both the County and State Fire Marshal's Office, as a representative of both entities had been here while I was in the hospital between 2 AM to 6 AM. Mr. Pratt also stated that the house had to be torn down today, and he had the authority to do so, and he didn't want Southampton Township's fire department to have to come back here again.
After this conversation, smoke started coming out of the roof of the house. Plaintiff told Pratt "to have the operator of the excavator peel some of the roofing away where the smoke was so the firemen could put out what was burning." The house was thereafter demolished.
Plaintiff filed a Complaint with this Court on December 15, 2017, followed by a December 28, 2017 Amended Complaint. The December 28, 2017 First Amended Complaint appears to assert causes of action under 42 U.S.C. §§ 1983 and 1985. Plaintiff asks for monetary compensation from Defendants.
On January 29, 2018, the Fire Department Defendants filed a Motion to Dismiss or, in the alterative, for a more definitestatement. On February 14, 2018, the State Defendant filed a Motion to Dismiss. On February 20, 2018, Plaintiff filed a Second Amended Complaint. The Court issued a March 14, 2018 Order requiring Plaintiff to file a formal motion with the Court asking for leave to file the February 20, 2018 Second Amended Complaint. Plaintiff thereafter filed a Motion for Leave to Amend on March 27, 2018.
The Court has federal question subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331.
The Court begins with the State Defendant's Motion to Dismiss, which argues for dismissal pursuant to the Eleventh Amendment. The Court will apply Federal Rule of Civil Procedure 12(b)(1). See Polanco v. Omnicell, Inc., 988 F. Supp. 2d 451, 460 n.7 (D.N.J. 2013); Morasco v. Pa. Dep't of Transp., No. 98-3613, 1998 U.S. Dist. LEXIS 19491, at *5 (E.D. Pa. Dec. 11, 1998) (). "Rule 12(b)(1) challenges are either facial or factual attacks." Abulkhair v. Office of Attorney Ethics, No. 16-3767, 2017 U.S. Dist. LEXIS 79754, at *9 . The Court construes the State Defendant's pre-answer challenge as a facial challenge. "The defendant may facially challenge subject matter jurisdiction by arguing that the complaint, on its face, does not allege sufficient grounds to establish subject matter jurisdiction." Id. "Under this standard, a court assumes that the allegations in the complaint are true, and may dismiss the complaint only if it appears to a certainty that the plaintiff will not be able to assert a colorable claim of subject matter jurisdiction." Id.
The Court will grant the State Defendant's Motion to Dismiss, as Plaintiff's claims against the State Defendant are barred by the Eleventh Amendment. The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. "That amendment has been interpreted to make states generally immune from suit by private parties in federal court." MCI Telecomm. Corp. v. Bell Atl.-Pa., 271 F.3d 497, 503 (3d Cir. 2001). "This immunity extends to state agencies and departments." Id.
The Court finds Eleventh Amendment immunity applies to the State Defendant. The State Defendant represents that the New Jersey State Fire Marshal Office "is part of the Division ofFire Safety within the Department of Community Affairs." "The Department of Community Affairs is a principal department 'established in the Executive Branch of the State Government.'" Rhett v. Evans, 576 F. App'x 85, 88 (3d Cir. 2014) (quoting N.J.S.A. 52:27D-1). The Third Circuit has previously found claims against "the Department of Community Affairs . . . [to be] barred by the Eleventh Amendment." Id.
"Eleventh Amendment immunity is subject to three exceptions: 1) congressional abrogation, 2) state waiver, and 3) suits against individual state officers for prospective relief to end an ongoing violation of federal law." MCI Telecomm, 271 F.3d at 503. None of these exceptions are available here.2 The Court will grant the State Defendant's Motion to Dismiss.
The Court next considers the Fire Department Defendants' Motion to Dismiss or, in the alternative, for a more definite statement.
When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . ." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (citations omitted) (first citing Conley v. Gibson, 355 U.S. 41, 47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
To determine the sufficiency of a complaint, a court must take three steps. First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Second, the court should identify allegations that, "because they are no more thanconclusions, are not entitled to the assumption of truth." Third, "whe[n] there are...
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