Hilliard v. New Jersey Army Nat. Guard, Civ. A. No. 79-3174.

• Decision Date: 12 May 1981
• Docket Number: Civ. A. No. 79-3174.
• Citation: 527 F. Supp. 405
• Parties: Gary HILLIARD, Plaintiff, v. NEW JERSEY ARMY NATIONAL GUARD, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

527 F. Supp. 405

Gary HILLIARD, Plaintiff, v. NEW JERSEY ARMY NATIONAL GUARD, et al., Defendants.

Civ. A. No. 79-3174.

United States District Court, D. New Jersey.

May 12, 1981.

Martin & Hart, East Orange, N. J. by Arthur N. Martin, Jr., East Orange, N. J., for plaintiff.

John J. Degnan, Atty. Gen. of N. J., Trenton, N. J. by Thomas F. Marshall, Deputy Atty. Gen., Trenton, N. J., for defendants New Jersey Army Nat. Guard, Brigadier General Peter Amodio and Major General Wilfred C. Menard, Jr.

Schneider, Schneider & Balt, Teaneck, N. J. by Peter D. Ciancia, Teaneck, N. J., for defendants Township of Teaneck, Werner Schmid, Joseph Kilmurray and Brian Burke.

OPINION

MEANOR, District Judge.

Plaintiff brings this action pursuant to the Civil Rights Act of 1866, as amended, 42 U.S.C. §§ 1983, 1985; the Veteran's Reemployment Rights Act, 38 U.S.C. § 2021 et seq. (hereinafter "VRRA") and the U.S. Const. amend. XIV, seeking declaratory judgment of his rights thereunder, back pay and vacation pay.

Jurisdiction is predicated upon 28 U.S.C. §§ 1331, 1343(1) and 38 U.S.C. § 2022.

Defendants now move for summary judgment or, in the alternative, dismissal of this action as to New Jersey Department of Defense's Chief of Staff, Major General Wilfred C. Menard, Jr.; Deputy Chief of Staff, Brigadier General Peter Amodio; Township of Teaneck Police Department; Teaneck Police Department's Chief of Police Joseph Kilmurray; Police Captain Brian Burke; Teaneck Township Manager Werner Schmid; New Jersey Army National Guard and the Township of Teaneck.

I. FACTUAL BACKGROUND

Plaintiff was initially employed by the Township of Teaneck as a police officer in February 1974. In 1977, while so employed, plaintiff joined the New Jersey Army National Guard (hereinafter "NJANG"). On numerous occasions, plaintiff requested military leave from the Police Department in order to attend NJANG Officer Candidate School. Plaintiff sought the Township's permission before applying for active duty training because it has been the policy of the NJANG for the last ten years to require a public employee to obtain the consent of his employer before directing the Guard member to active duty, for training or for other purposes, so as to minimize interference with the activities of local government. (NJANG Reg. 351-2)

The Township regularly refused permission;¹ nevertheless, on one occasion NJANG ordered plaintiff to officer candidate school at the completion of which he was commissioned as Second Lieutenant.

Plaintiff returned to the police force and early in 1979 asked Teaneck for a military leave of absence in order to attend a special training course given at Fort Belvoir, Virginia which would last three and one-half months. The Township denied this request.

Plaintiff then formed the American Scene Corporation naming himself as the sole incorporator, stockholder and owner. He then reapplied to NJANG for the training course at Fort Belvoir listing the American Scene Corporation as his sole employer. Unaware that plaintiff was still an employee of the Teaneck Police Department, NJANG issued orders to plaintiff on April 4, 1979, directing him to report for full-time training duty at Fort Belvoir, Virginia for the period May 13, 1979 to August 22, 1979 (102 days). Plaintiff sent a copy of his orders to the Police Department which was received on May 10, 1979 and reported for duty at Fort Belvoir on May 13, 1979.

On May 15, 1979, Joseph Kilmurray, Chief of the Teaneck Police Department, wrote to Major General Wilfred Menard, Jr., Chief of Staff of the New Jersey Department of Defense, to find out why the Police Department was not contacted for permission in accordance with NJANG policy. In response, General Menard stated that plaintiff's orders were issued on the basis of his application in which he did not list the Township of Teaneck as an employer.

Taking the position that plaintiff was absent without leave from the Police Department, Chief Kilmurray wrote to plaintiff on May 31, 1979 ordering him to return to his job or face dismissal from the police force. Plaintiff was also asked to resign from the Department. Plaintiff responded by letter on June 8, 1979 stating that he intended to return to his position in the police force on August 23, 1979. Plaintiff was then notified by the Teaneck Police that he would be carried on its records as being on leave of absence without pay until he returned to the police force.

While on Guard duty at Fort Belvoir, plaintiff was recruited to commence active duty with the regular Army in an engineering capacity with the Army Corps of Engineers. Members of the National Guard are required to obtain a conditional release from their state headquarters before they can begin active duty with the regular Army.

Plaintiff was issued orders on July 12, 1979 ordering him to active duty for two years, less training time served, to commence on September 10, 1979. On August 1, 1979, however, these orders were revoked.

According to Brigadier General Peter R. Amodio, Deputy Chief of Staff of the New Jersey Department of Defense, who reviewed the entire sequence of events with Major General Menard, it was decided that plaintiff be given the opportunity to correct his employment misrepresentation on his February 1979 application by effectuating a retroactive resignation from the Teaneck Police Department; such resignation to be a precondition to plaintiff's release to the Army Corps of Engineers.

Plaintiff was thus faced with a career choice. Either he completed his active duty training with NJANG and returned to the Police Department, or he resigned from the Police Department and joined the Army Corps of Engineers. By letter dated August 4, 1979, plaintiff submitted his resignation to Werner Schmid, Teaneck's Township Manager, to be considered retroactively effective from May 13, 1979.² Two days later, on August 6, 1979, plaintiff submitted a handwritten letter to Mr. Schmid which stated:

This is to clarify my resignation dated 4 August 1979. I resign as any patrolman that desires to stop working for Teaneck and start working someplace else. I can not make it any plainer than that. I have already handed in my gun and shields to Lt Finn.

Now would you please accept my resignation and let me go?

On August 3, 1979, Mr. Schmid accepted plaintiff's resignation, effective May 13, 1979, and on August 17, 1979 plaintiff was issued orders to serve with the Army Corps of Engineers from August 23, 1979 to May 1981. Plaintiff is presently serving with the Army in Los Angeles, California.

II. INDIVIDUAL DEFENDANTS

In order to state a claim for relief pursuant to Civil Rights Act sections 1983 and 1985, a plaintiff must set forth, inter alia, specific conduct by the State, or its officials acting under color of State law, which violates a constitutional right of the plaintiff. Gittlemacker v. Prasse, 428 F.2d 1, 3 (3d Cir. 1970).

In Scott v. University of Delaware, 385 F.Supp. 937, 944 (D.Del.1974), the court stated:

In the Third Circuit, it is a settled principle that cases brought pursuant to 42 U.S.C. § 1983 must be specifically pleaded in order to withstand a motion to dismiss. Kauffman v. Moss, 420 F.2d 1270, 1275 & n. 13 (3rd Cir.), cert. denied 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); Negrich v. Hohn, 379 F.2d 213 (3rd Cir. 1967). Broad, conclusory allegations unsupported by specific factual allegations which implicate particular defendants are not sufficient to state a claim upon which relief may be granted. Id., at 215. These principles apply with equal force to actions brought pursuant to 42 U.S.C. § 1985, Fletcher v. Hook, 446 F.2d 14 (3rd Cir. 1971), and 42 U.S.C. § 1981, cf. Kauffman v. Moss, 420 F.2d at 1275.

Although given a period of extension in which to supplement his factual contentions,³ plaintiff was unable to substantiate allegations that defendants Amodio and Menard deprived him of his protected rights. Plaintiff alleges no more than the rendering of a policy determination by the Chief and Deputy Chief of Staff which enabled him to continue on active duty in spite of his fraudulent procurement of orders.

Similarly, Police Chief Kilmurray, Captain Burke, and Township Manager Schmid have not been factually linked to this action. There are no facts which substantiate the existence of a conspiracy by these individuals together, or in combination with any other entity, in hinderance of plaintiff's constitutional or statutory rights, or for the purpose of forcing his resignation.

The Pretrial Order specifies that, "failure to file a supplemental factual statement will result in plaintiff's being precluded from offering additional proofs...."

Plaintiff failed, and is now precluded from endeavoring to keep alive an action against these individuals which has no merit or factual support.

Further, it is clear that the noncorporate, Township of Teaneck Police Department is not a separate entity subject to suit, see 3 McQuillin Municip. Corps. § 12.40 (3d Ed. 1973); Braxton v. Nat'l Capital Housing Auth., 396 A.2d 215 (D.C.App.1978), and is not properly named in this action.

For these reasons, dismissal of the Police Department is warranted as is summary judgment with regard to the above mentioned individual defendants.

III. THE NEW JERSEY ARMY NATIONAL GUARD

The New Jersey Army National Guard must be dismissed from this suit since the eleventh amendment bars suits against the State unless the State has given its consent or there has been a waiver of its immunity. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 56 L.Ed.2d 1114 (1978). The New Jersey Army National Guard is not imbued with the same characteristics as local governing bodies which, under Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), are "persons" subject to liability under § 1983 and thus are not wholly immune, unlike the National Guard, from § 1983 suits.

No consent has been given. See ...