Opinion
CIVIL NO. 98-1729 (JBS).
June 29, 1999
Stuart J. Lieberman, Esq., Goldshore Wolf, Plainsboro, N.J., Attorney for Plaintiffs.
John J. Farmer, Jr., Attorney General of New Jersey, by: Robert A. Marshall, Deputy Attorney General, Trenton, N.J., Attorney for Defendants.
O P I N I O N
Plaintiffs James Rapisardi and the Estate of Rosario Rapisardi bring this action under 42 U.S.C. § 1983, alleging that the New Jersey Department of Environmental Protection ("DEP") and employees John and Jane Does, 1-10, violated or otherwise deprived them of their Fourteenth Amendment constitutional rights, including procedural due process, substantive due process, and equal protection, when defendants assessed civil administrative penalties against them for the unlawful filling of wetlands. They additionally argue that defendants are liable for state malicious prosecution and abuse of process violations. Now before the Court are two motions. First, the defendants seek dismissal of the Complaint. Second, plaintiffs seek leave to amend the Complaint. For the reasons stated herein, defendants' motion to dismiss will be granted, and plaintiffs' motion to amend the Complaint will be denied.
I. BACKGROUND
The facts as alleged in the Complaint are as follows. The New Jersey Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-3 ("Act"), which became effective on July 1, 1988, protects wetlands in various ways, and in particular it gives the DEP the power to fine individuals who violate the Act. On February 14, 1991 and March 14, 1991, the DEP charged plaintiff James Rapisardi and his father, Rosario Rapisardi, now deceased, the owners of farmland in Gloucester County, New Jersey, with violating the Act three times by allegedly filling wetlands and wetland buffer areas. The DEP fined plaintiffs $120,000.00 for each violation and threatened them with criminal charges.
After a contested hearing before the Office of Administrative Law, the administrative law judge ("ALJ") determined that the plaintiffs had violated the Act by filling in three areas on their farm: a 1.69 acre area which included a farm and an adjacent dead orchard which was once filled with apple and peach trees (the "pond area"); a 0.01 acre area near a pole barn area that was constructed by June 28, 1988 to replace an old post and beam barn (the "pole barn area"); and a .75 acre area near overgrown seedbeds containing old seedhouses and concrete potato beds (the "seedbed area"). The ALJ assessed an aggregate civil administrative penalty of $15,000.00 and ordered plaintiffs to submit a restoration plan to the DEP. The Commissioner of the DEP adopted this as a Final Decision on September 20, 1995.
The plaintiffs appealed the ALJ's decision to the Appellate Division, which proceeded to affirm the violations with respect to the irrigation pond area but reverse as to the pole barn and seedbed areas. The New Jersey Supreme Court denied certification on February 17, 1998. Plaintiffs are now subject only to an order to pay civil administrative penalties and restore the 1.69 acre pond area.
On April 8, 1998, plaintiffs filed the instant Complaint, alleging violations of 42 U.S.C. § 1983 by the DEP and various John and Jane Doe employees for willfully and maliciously depriving plaintiffs of due process. According to the plaintiffs, both the pole barn and seedbed areas are exempt from regulation under the Act because they were undertaken pursuant to a Nationwide Permit issued by the Army Corps of Engineers, and defendants, who had actual knowledge that such areas were exempt from regulation, nonetheless pursued "an unwarranted and illegal enforcement campaign against the plaintiffs . . . ." (Compl. ¶ 35.) The Complaint also asserts state law claims of malicious prosecution and abuse of process.
Defendants filed a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Defendants argue that defendant DEP is immune pursuant to the Eleventh Amendment to the United States Constitution, that claims against defendants John and Jane Does must be dismissed because of qualified immunity, and that the Court should decline supplemental jurisdiction over remaining state law claims.
In addition to filing opposition papers, plaintiffs filed a motion seeking leave to amend the Complaint. Plaintiffs' proposed Amended Complaint would name more specifically some of the individual John Doe defendants, Robert Pacione and Scott Weiner (in his official capacity). According to the proposed Amended Complaint, defendant is liable because Pacione conducted inspections of the plaintiffs' property on February 14, 1991 and March 14, 1991, and he and other as-of-yet-unknown individuals later maliciously "saw to it that the DEP falsely issued to plaintiffs Notices of Violation carrying penalties of ONE HUNDRED AND TWENTY THOUSAND DOLLARS ($120,000) per violation." (Amended Compl. ¶ 24.) Plaintiffs also allege that defendant Scott Weiner, a former DEP Commissioner who was charged with overseeing investigative operations at the DEP, is liable because he failed to "properly control the malicious prosecution by Defendant Pacione and the other DEP employees." (Id. at ¶ 42.) Ostensibly, the DEP would be liable for failure to supervise.
For the reasons stated herein, plaintiffs motion for leave to amend the Complaint will be denied and defendants' motion to dismiss will be granted.
II. DISCUSSION
A. Fed.R.Civ.P. 12(b)(6) Standard
A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A district court must accept any and all reasonable inferences derived from those facts. Unger v. National Residents Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991); Gutman v. Howard Sav. Bank, 748 F. Supp. 254, 260 (D.N.J. 1990).
It is not necessary for the plaintiff to plead evidence, and it is not necessary to plead the facts that serve as the basis for the claim.Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977); In re Midlantic Corp. Shareholder Litigation, 758 F. Supp. 226, 230 (D.N.J. 1990). The question before the Court is not whether the plaintiff will ultimately prevail; rather, it is whether he can prove any set of facts in support of his claims that would entitle him to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). "Although the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Center v. Brown, 466 U.S. 147, 150 n. 3 (1984) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Therefore, in deciding a motion to dismiss, a court should look to the face of the complaint and decide whether, taking all of the allegations of fact as true and construing them in a light most favorable to the nonmovant, plaintiff's allegations state a legal claim. Markowitz v. Northeast Land Co., 906 F.2d at 103.
B. Eleventh Amendment Immunity
Defendants first argue that all claims must be dismissed against the DEP because the DEP is immune from suit. The Eleventh Amendment to the United States Constitution immunizes a state and its entities from suit in federal court unless such immunity has been specifically waived. U.S. Const. Amend. XI; Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989); Pennshurst State School Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Defendant DEP, which is a department of the State of New Jersey, has not waived its immunity from federal suits for claims arising under § 1983. As such, the Complaint will be dismissed as to plaintiff's § 1983 claims against the DEP.
As to claims against DEP arising under state law, this court lacks supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3), as discussed in subpart II.D, below.
C. Count One: 42 U.S.C. § 1983
Defendants also argue that plaintiffs' § 1983 claim against the individual defendants should be dismissed because the individual defendants are protected by qualified immunity and because plaintiffs' claim is barred by New Jersey's two-year statute of limitations. However, the Court need not reach the issues of qualified immunity or the statute of limitations because the Court finds that the Complaint fails to state a claim under § 1983 altogether, and thus this case must be dismissed.
In their initial brief, defendants argue that the Complaint should be dismissed because it fails to give unnamed individual defendants "notice of their personal involvement in the alleged wrongs," see Mannington Mills, Inc. v. Shinn , 877 F. Supp. 921 (D.N.J. 1995), rather naming individuals broadly and failing to assign specific wrongful conduct. (Defs.' Br. at 7-8.) After reading the proposed Amended Complaint, as well as plaintiff James Rapisardi's Certification and Supplemental Certification however, all of which name defendants more specifically and add additional allegations (such as that another DEP official told defendant Pacione that the DEP's position amounted to a baseless charge) (Rapisardi Certif. at ¶ 8)), it is clear that plaintiffs have provided sufficient notice. Indeed, it appears from the defendants' reply brief that defendants have abandoned this argument.
Even if plaintiffs' § 1983 claim against the DEP was not barred by reason of Eleventh Amendment immunity, as the court found above, the plaintiffs' failure to state a cognizable § 1983 claim would be an alternative basis for dismissal.
Plaintiffs are correct, as the Appellate Division of the Superior Court determined, that they had the right to fill the seedbed and pole barn areas of the farm without pre-approval by the DEP. Under New Jersey law, while acknowledgment must generally be obtained before filling work is commenced,
Projects for which . . . (3) permit applications have been approved by the U.S. Army Corps of Engineers prior to the effective date of this act [July 1, 1988], which projects would otherwise be subject to State regulation on or after the effective date of this act, shall be governed only by the Federal Act, and shall not be subject to any additional or inconsistent substantive requirements of this act[.]
N.J.S.A. 13:9B-4d. More specifically, N.J.A.C. 7:7A-2.7(g) makes it clear that the permits approved by the U.S. Army Corps of Engineers need not necessarily be individual permits:
Activities authorized under United States Army Corps of Engineers Nationwide Permits prior to July 1, 1988 shall not require a freshwater wetlands permit from the Department provided the property owner can demonstrate that a Nationwide Permit provided authorization for a particular site and use prior to July 1, 1988.Id. A federal nationwide permit is "a permit by regulation, allow[ing] certain activities which have relatively insignificant impact on wetlands without further review by the Corps." M. Alfieri Co. v. Department of Environmental Protection and Energy, 269 N.J. Super. 545, 550 (App.Div. 1994) (citing 33 C.F.R. § 323.2(h)), aff'd o.b., 138 N.J. 642 (1995). See also A.R. Criscuolo Assoc. v. Department of Environmental Protection, 249 N.J. Super. 290, 296 (App.Div. 1991). If a project falls within a nationwide permit, individuals may proceed with it without first seeking authorization, 33 C.F.R. § 330.1, although the Corps will verify, upon request, that a proposed activity falls within the permit.
Here, at the time in which plaintiffs allege in the Complaint that they were filling the pole barn area (beginning prior to July 1, 1988), their alleged activity would have been protected by Nationwide Permit No. 26 ("Permit No. 26"), then codified at 33 C.F.R. § 330.5(a)(26) (1988), and now codified at 33 C.F.R. App. A § 330(26). That permit regulates isolated wetlands as follows:
* If ten or more acres of wetlands will be lost or adversely modified, the activity may not proceed.
* If between one and ten acres of wetlands will be lost or adversely modified, prior notification to the Army Corps of Engineers is required.
* If less than one acre of wetlands will be lost or adversely modified, the activity may proceed without any further notification.See id. See also A.R. Criscuolo Assoc., Inc. v. DEP, 249 N.J. Super. 290, 300 (App.Div. 1991) (if less than one acre in size, no notification or authorization is needed for filling activity).
Taking the facts as alleged as true, as I must do when faced with a motion to dismiss, the sizes of the pole barn and seedbed areas are .01 and .75 acres, respectively, and all filling activity began prior to July 1, 1988, the Act's effective date. These alleged facts place plaintiffs' land within the "less than one acre" category of filling which does not require any prior notification to, or authorization from, the Army Corps of Engineers. The law as applicable to the land in question is clear that no prior notification is needed when the land in question is less than one acre in size, and, therefore, the Appellate Division was correct in finding that plaintiffs had the legal right to fill that land without prior authorization, contrary to the DEP's view.
Defendants' reliance on the Appellate Division's unpublished decision in New Jersey Department of Environmental Protection v. Toufayan , No. A-3111-94T2, slip op. (N.J.Super.Ct. App. Div. April 25, 1996), certif. denied , 146 N.J. 70 (1996) , is unavailing. In Toufayan , the Appellate Division reviewed the Criscuolo decision, noting that it described N.J.S.A. 13:9B-4d(3) as exempting prior approved permits, and that it also relied upon N.J.A.C. 7:7A-2.7(g) to exempt activities prior to July 1, 1988 which were exempted by nationwide permits. Id . , slip op. at 4-5 . The Appellate Division in Toufayan noted that it had reservations about the DEP's authority to establish this exemption, which might be broader than the statutory exemption. Id . The Court, however, noted that it was not deciding that issue because appellants had failed to comply with N.J.A.C. 7:7A-2.9(b)6i, because appellants had not submitted a copy of the relevant Nationwide permit to the DEP. Id .
The Toufayan case, however, does not mean that the law was not clearly established. In the first instance, Toufayan is an unpublished decision which is not precedential in value, see New Jersey Court Rule 1:36-3 (unpublished decisions neither serve as precedent nor bind any court). Moreover, however, Toufayan addressed a situation in which filling activity began long after July 1, 1988, so the regulatory exemption for filling prior to July 1, 1988 would not apply to the appellants there in any case. The Toufayan decision, then, in no way affects the clarity of the regulations or Criscuolo as it speaks to activities begun prior to July 1, 1988, as is alleged to be the case here.
However, just because it was clear as a matter of New Jersey state regulations that plaintiffs had the right to fill these two areas does not mean that plaintiffs have a § 1983 claim for malicious prosecution against the DEP and the individual officers who instituted and continued action against the plaintiffs for fines for their filling activity. Indeed, even if the plaintiffs have stated a cause of action for malicious prosecution under New Jersey tort law, as a result of the Supreme Court's opinion in Albright v. Oliver, 510 U.S. 266 (1994), plaintiffs have not necessarily stated a malicious prosecution claim under § 1983. We must therefore examine whether the Complaint states a cognizable claim for malicious prosecution under § 1983.
As explained infra , the Court makes no findings with regard to the state law claims.
42 U.S.C. § 1983 does not itself provide substantive rights, but rather it provides a vehicle for vindicating federal rights which have been violated by state actors. Id. at 271. The first question the Court must ask is what specific federal constitutional or statutory right has been violated. Graham v. Connor, 490 U.S. 386, 394 (1989). One type of violation which might lead to a § 1983 suit is a violation of the substantive sphere of the due process protections of the Fourteenth Amendment to the United States Constitution. See County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1713 (1998). Before the Supreme Court reached its decision in Albright, the Third Circuit held that plaintiffs could bring § 1983 actions by alleging the elements of state malicious prosecution, see Lee v. Mihalich, 847 F.2d 66, 69-70 (3d Cir. 1988), because malicious prosecution was a violation of substantive due process. See Gallo v. City of Philadelphia, 161 F.3d 217, 221 (1998).
The Albright decision changed the legal landscape. In Albright, a state court dismissed charges against someone who had been arrested pursuant to an arrest warrant on drug charges and surrendered to the authorities without admitting guilt, and the wrongly charged person brought a § 1983 malicious prosecution action against the police officer who had obtained the arrest warrant against him. Albright, 510 U.S. at 268-270. A plurality of the members of the Supreme Court agreed with Chief Justice Rehnquist's opinion that the § 1983 suit should be dismissed. According to the plurality opinion, "[w]here a particular amendment `provides an explicit textual source of constitutional protection' against a particular sort of government behavior, `that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims.'" Id. at 273 (quoting Graham, 490 U.S. at 394.) In that particular case, Chief Justice Rehnquist said, the appropriate Amendment would have been the Fourth Amendment. 510 U.S. at 273.
The Third Circuit has interpreted Albright as implying that "prosecution without probable cause is not, in an of itself, a constitutional tort." Gallo, 161 F.3d at 222 (citing Albright, 510 U.S. at 274). Thus, a plaintiff cannot state a § 1983 claim merely by alleging the elements of state tort malicious prosecution. Some courts have construed Albright as allowing plaintiffs to bring § 1983 malicious prosecution claims only if those claims are based on violations of the Fourth Amendment. See, e.g., Uboh v. Reno, 141 F.3d 1000 (11th Cir. 1998); Murphy v. Lynn, 118 F.3d 938 (2d Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1051 (1998); Taylor v. Waters, 81 F.3d 429, 436 n. 5 (4th Cir. 1996). Though the Third Circuit has construed Albright in a broader fashion, such that a plaintiff may state a § 1983 claim by basing malicious prosecution claims in "the Fourth Amendment, the procedural due process clause, or other explicit text of the Constitution," Torres v. McLaughlin, 163 F.3d 169, 173 (3d Cir. 1998), the import of Albright and its progeny is clear: § 1983 malicious prosecution claims are not independent claims, but rather must be rooted in the violation of another constitutional provision. No longer may plaintiffs bring § 1983 claims by alleging that state officials maliciously prosecuted baseless state law or federal regulatory claims against them, unless the alleged misconduct violated a distinct constitutional right.
Plaintiffs have failed to allege such a claim here. As confirmed by the parties' arguments in their briefing on the current motions, plaintiffs' § 1983 claim is based entirely on malicious institution and continuation of fines against the plaintiff which were baseless as a result of state law and federal environmental regulations. Plaintiffs have not alleged that their Fourth Amendment rights were violated, and, indeed, taking all of the facts alleged as true, the defendants did not unconstitutionally search or seize any of plaintiffs' property; rather defendants imposed a fine on the plaintiffs which was upheld in part and rejected in part by later proceedings. Nor have plaintiffs alleged that their Fifth Amendment procedural due process rights were violated. Under the facts as alleged, while the defendants continued to seek fines against the plaintiffs that were, in part, unwarranted, they did not interfere with plaintiffs' ability to receive the process that was due to them, and plaintiffs ultimately received both a trial before an administrative law judge and a hearing by the New Jersey Appellate Division. Plaintiffs received, in short, the process that was due. Nor do plaintiffs claim that defendants' actions amounted to a taking of their property without just compensation, since plaintiffs do not allege that their lands were seized, forfeited, or otherwise distrained.
The fines were warranted in as far as they concern they pond area.
Plaintiffs have alleged only one constitutional basis for a § 1983 action: substantive due process, a constitutional hook to which plaintiffs may turn only if no particular amendment explicitly provides a basis for vindicating their rights. See Graham, 490 U.S. at 395. Though plaintiffs' claim is not "covered" by any other constitutional amendment, and thus plaintiffs may turn to substantive due process, the facts of this case do not state a claim for violation of substantive due process upon which relief can be granted. See County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1715 (1998).
In County of Sacramento v. Lewis, the Supreme Court addressed whether substantive due process principles governed police liability during a high speed chase. In doing so, the Court noted that substantive due process is treated somewhat differently when it concerns what the government may do in its legislative capacity, see Griswold v. Connecticut, 381 U.S. 479 (1965), as opposed to its executive capacity, see Rochin v. California, 342 U.S. 165 (1952). See Lewis, 118 S.Ct. at 1716. When claims concern specific acts by executive officials, as opposed to legislation, only the most egregious official conduct can be said to be `arbitrary in the constitutional sense,'" such that substantive due process is violated. Id. at 1716 (citing Collins v. Harker Heights, 503 U.S. 115, 126 (1992).
Therefore, plaintiffs in the instant case could only state a § 1983 claim based on a violation of substantive due process if the actions taken by the DEP officials constitute such an abuse of power that they "shock the conscience." Lewis, 118 S.Ct. at 1716-1717. Taking all of plaintiffs' allegations as true, no reasonable juror could find that the DEP officials' actions "shock the conscience." Though plaintiffs clearly had the right to fill under state regulations (which incorporated federal regulations), the facts as alleged indicate that the DEP officials went onto plaintiffs' land, noted one large filling violation, lumped that violation together with what they erroneously believed to be two smaller filling violations, and proposed to fine the plaintiffs for them all together. When the plaintiffs challenged that view, the defendants did not interfere with the plaintiffs' right to challenge their actions before an ALJ or in the Appellate Division, but rather the defendants simply continued to argue their point of view. In fact, the defendants convinced the ALJ that their view was correct and that the plaintiffs had three separate filling violations. It was not until the Appellate Division reached its decision that defendants were told officially that two of the alleged filling violations were exempt from regulation, and, even then, defendants were partially vindicated because plaintiffs were found to have violated the regulations by filling the pond area without prior authorization. While defendants' view that filling the pole barn and seedbed areas violated New Jersey law was incorrect, no reasonable juror could find under these facts that the officials abused their power in a manner that was so "`brutal' and `offensive' that it did not comport with traditional ideas of fair play and decency." Id. at 1717 (citingBreithaupt v. Abram, 352 U.S. 432, 435 (1957)).
Therefore, the plaintiffs' § 1983 claim against defendants must be dismissed because the plaintiffs have failed to state a constitutional violation upon which the § 1983 claim is based. Accordingly, plaintiffs' § 1983 claim will be dismissed, and this Court need not reach the later issues of qualified immunity or the statute of limitations.
D. State Law Claims
Plaintiffs have also alleged violations of state law: malicious prosecution and abuse of process. However, as the only claim against these defendants over which this Court has original jurisdiction will be dismissed, this Court declines to exercise supplemental jurisdiction over these state law claims. 28 U.S.C. § 1367(c)(3). This Court thus makes no findings with regard to these state law claims, and they will be dismissed without prejudice for lack of subject matter jurisdiction.
E. Amendment
Plaintiffs also seek leave to amend the Complaint to include additional allegations and to name some of the DEP officials alleged to have violated the plaintiffs' rights. Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend his pleading once before a responsive pleading is served, or thereafter upon leave of court or upon consent from his adversary. Id. "[L]eave should be freely given when justice so provides." Id. The trial judge's decision as to the amendment will only be overturned for an abuse of discretion. Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 654 (3d Cir. 1998) (citingHowze v. Jones Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984)). "If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178 (1962).
While the grant of leave to amend should not be automatic, see Dover v. Hartford Accident and Indemnity Co., 151 F.R.D. 570, 574 (D.N.J. 1993), it should be granted absent a showing of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, futility of amendment, etc." Foman, 371 U.S. at 182. The Third Circuit has set a liberal standard for amendment so that "a particular claim will be decided on the merits rather than on technicalities." Dole Arco Chemical Co., 921 F.2d 484, 486-87 (3d Cir. 1990) (citing 6 C. Wright, A. Miller M. Kane, Federal Practice and Procedure: Civil 2d § 1471 (West 1990)).
Here, the plaintiffs' proposed amendment would be futile, for it simply adds additional factual allegations to plaintiffs' § 1983 malicious prosecution claim, which this Court has already noted fails to state a claim upon which relief can be granted. Therefore, the plaintiffs' motion to amend the Complaint will be denied.
III. CONCLUSION
For the foregoing reasons, defendants' motion to dismiss will be granted and plaintiffs' motion for leave to amend the Complaint will be denied. The accompanying Order is entered.
O R D E R
This matter having come before the Court upon defendants' motion to dismiss and upon plaintiffs' motion for leave to amend the Complaint; and the Court having considered the parties' submissions; and for the reasons stated in the Opinion of today's date;
IT IS this day of June 1999, hereby
ORDERED that defendants' motion to dismiss is GRANTED, and Count One of the Complaint will be DISMISSED WITH PREJUDICE, and Counts Two and Three of the Complaint will be DISMISSED WITHOUT PREJUDICE FOR LACK OF SUBJECT MATTER JURISDICTION; and it is
ORDERED that plaintiffs' motion for leave to amend is DENIED.
JUDGMENT is entered for the defendants.