Salaam v. Small

• Decision Date: 25 February 2022
• Docket Number: Civil Action 21-12191 (CPO)
• Parties: NASHID J. SALAAM, Plaintiff, v. MARTY SMALL, SR., et al., Defendants.
• Court: U.S. District Court — District of New Jersey

NASHID J. SALAAM, Plaintiff,
v.
MARTY SMALL, SR., et al., Defendants.

Civil Action No. 21-12191 (CPO)

United States District Court, D. New Jersey

February 25, 2022

Terrell A. Ratliff Samuel Jackson Lento Law Group, P.C. New Jersey 3000 Atrium Way Suite 200 Mt. Laurel, N.J. 08054 On behalf of Plaintiff Nashid J. Salaam.

Tracy Riley Law Offices of Riley & Riley Executive Court 2 Eves Drive Suite 109 Marlton, N.J. 08053 On behalf of Defendants Marty Small, Sr., City of Atlantic County, and Alexis Waiters.

OPINION

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Christine P. O'Hearn United States District Judge

INTRODUCTION

Pending before the Court is a Motion to Dismiss (ECF No. 14) filed by Defendants Marty Small, Sr., City of Atlantic City, and Alexis Waiters, collectively (“Defendants”), ^[1] arguing that Counts III (Monell Claim for Failure to Train and Supervise), IV (Civil Conspiracy to Interfere with Civil Rights), V (Gross Negligence), VI (Negligence), VII (Violation of the New Jersey Worker Freedom From Employer Intimidation Act, N.J.S.A. § 34:19-9 et seq.), and VIII (Common Law Civil Conspiracy) of the Amended Complaint (ECF No. 12) filed by Nashid J. Salaam (“Plaintiff”), should be dismissed for procedural deficiencies and failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court heard argument on February 16, 2022, pursuant to Local Rule 78.1.

For the reasons discussed below, the Court will GRANT Defendants' Motion.

I. PROCEDURAL HISTORY

Because the parties both raise timeliness and procedural issues related to their respective filings, the Court will review the timing of each pleading and response. Plaintiff filed a Complaint on June 6, 2021. (ECF No. 1). With Plaintiff's consent, Defendants requested and received additional time to respond to the Complaint (Stipulation and Order, ECF Nos. 9, 10) and thereafter filed a Motion to Dismiss on July 29, 2021, (ECF No. 11). Twenty-one days later, on August 19, 2021, Plaintiff filed an Amended Complaint (ECF No. 12). In response thereto, twenty-one days later, on September 10, 2021, Defendants filed a Second Motion to Dismiss the Amended

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Complaint, the Motion the Court now addresses. (ECF No. 14). In their Motion, Defendants seek the dismissal of Counts III (Monell Claim for Failure to Train and Supervise), IV (Civil Conspiracy to Interfere with Civil Rights), V (Gross Negligence), VI (Negligence), VII (Violation of the New Jersey Worker Freedom From Employer Intimidation Act, N.J.S.A. § 34:19-9 et seq.), and VIII (Common Law Civil Conspiracy), but agree that Counts I (First Amendment Violations), II (Monell Claim for Unconstitutional Custom or Policy), and IX (Violation of the New Jersey Civil Rights Act, N.J.S.A 10:6-2(c)) state a claim. Plaintiff's Brief in Opposition was filed on September 27, 2021, (ECF No. 15), and, finally, Defendants' Reply Brief was filed on October 1, 2021, (ECF No. 16).

II. FACTUAL BACKGROUND^[2]

Plaintiff is an employee of the Defendant Atlantic City working as a Laborer for the City's Public Works Department. (Am. Compl., ECF No. 12 ¶ 12). On August 7, 2019, Plaintiff suffered a work-related injury requiring him to undergo physical therapy. (Am. Compl., ECF No. 12 ¶¶ 14, 15). Upon completion of physical therapy, and at his maximum medical improvement, Plaintiff's Functional Capacity Examination (“FCE”) indicated that he was capable of medium Physical Demand Level, in other words, lifting no more than fifty pounds. (Am. Compl., ECF No. 12 ¶¶ 17, 18). Plaintiff subsequently received notice from Defendant Waiters, the Director of Human Resources for Atlantic City, recommending his termination given his inability to perform his job duties. (Am. Compl., ECF No. 12 ¶¶ 8, 19). Plaintiff elected to undergo a second FCE and received a result of medium plus Physical Demand Level. (Am. Compl., ECF No. 12 ¶¶ 20, 21). Despite

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this increase in functional capacity, Plaintiff was still not permitted to return to work. (Am. Compl., ECF No. 12 ¶¶ 22, 24). This pattern-Plaintiff requesting to return to work and being denied- continued, with Plaintiff's most recent request being denied on August 19, 2021. (Am. Compl., ECF No. 12 ¶ 49).

Plaintiff and Defendant Small have a “contentious history.” (Am. Compl., ECF No. 12 ¶ 26). In 2019 and 2020, Defendant Mayor Small, Mayor of Atlantic City, was campaigning for reelection. (Am. Compl., ECF No. 12 ¶ 28). Knowing Plaintiff had a friend who held significant political influence in the area, Defendant Small asked for Plaintiff's help on his campaign efforts in both years. (Am. Compl., ECF No. 12 ¶¶ 28, 29, 32). Plaintiff refused both requests and alleges that “[t]hese refusals put Plaintiff on [Defendant] Small's list of disfavored individuals.” (Am. Compl., ECF No. 12 ¶¶ 33, 34).

The relationship between the two was further strained in the Summer of 2020 when Plaintiff was observed in public with Defendant Small's political challenger. (Am. Compl., ECF No. 12 ¶ 35, 37). Plaintiff was providing security services for the challenger while she went door-to-door canvassing. (Am. Compl., ECF No. 12 ¶ 36). Another Atlantic City employee reported Plaintiff's activity to Defendant Small. (Am. Compl., ECF No. 12 ¶ 37).

As a result of Plaintiff's lack of political support for him, Defendant Small issued a “discrete mandate to high level Human Resources employees, including Defendant Alexis Waiters [Head of Human Resources for Atlantic City], to ‘Keep him out, '” and was “directly responsible for keeping Plaintiff from being permitted to return to work.” (Am. Compl., ECF No. 12 ¶¶ 37, 41). This practice of politically motivated retaliation was allegedly known among Atlantic City employees and affected many people beyond just Plaintiff. (Am. Compl., ECF No. 12 ¶ 60).

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III. LEGAL STANDARD

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Rule 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). A pleading is sufficient if it contains “a short and plain statement of the claim showing that the pleader is entitled to relief.” F.R.C.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); then citing 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: (1) take note of the elements a plaintiff must plead to state a claim; (2) identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth; and (3) assume the veracity of well-pleaded factual allegations, and then determine whether they plausibly give rise to an entitlement for relief. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 664, 675, 679 (2009)) (alterations, quotations, and other citations omitted).

A district court, in deciding a motion to dismiss, asks “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.” Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our decision in Twombly expounded the pleading standard for ‘all civil actions' . . . .”);

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Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in the coffin for the ‘no set of facts' standard that applied to federal complaints before Twombly.”). “A motion to dismiss should be granted if the plaintiff is unable to plead ‘enough facts to state a claim to relief that is plausible on its face.'” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at 570).

IV. DISCUSSION

For the following reasons, the Court will GRANT Defendants' Motion to Dismiss pursuant to Rule 12(b)(6) for Failure to State a Claim. Counts IV (Civil Conspiracy to Interfere with Civil Rights), V (Gross Negligence), VI (Negligence), and VII (Violation of the New Jersey Worker Freedom From Employer Intimidation Act, N.J.S.A. § 34:19-10) will be dismissed with prejudice since amendment would be futile. The remaining Counts, III (Monell Claim for Failure to Train and Supervise), VII (Violation of the New Jersey Worker Freedom From Employer Intimidation Act, N.J.S.A. § 34:19-12), and VIII (Common Law Civil Conspiracy), will be dismissed without prejudice.

A. Timeliness of Submissions

Both parties have made untimely filings in this matter, namely, Defendants' Motion to Dismiss (ECF No. 14) and Plaintiff's brief in opposition (ECF No. 15). Both parties ask the Court to disregard the others' late submission.

Regarding the Motion (ECF No. 14), Federal Rule of Civil Procedure 15, details the time to respond to an amended pleading as “within the time remaining to respond to the original pleadings or within 14 days after service of the amended pleading, whichever is later.” Defendants concede that their Motion was late when filed on September 10, 2021, twenty-one days after Plaintiff's Amended Complaint was filed and they did not seek formal leave to file a late response,

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by stipulation or otherwise. Initially, Defendants initially argued that Plaintiff's Amended Complaint was filed late, thus absolving Defendants' error in filing a late responsive motion. This argument holds no merit...