Cinaglia v. Levin

Page 1

RICHARD CINAGLIA, Plaintiff, v. SUSAN BASS LEVIN, et al., Defendants.

Civil Action No. 02-1308(JEI).

United States District Court, D. New Jersey.

F. MICHAEL DAILY, JR., Sentry Office Plaza, Westmont, NJ, Attorney for Plaintiff.

DAVID SAMSON, ATTORNEY GENERAL OF NEW JERSEY, By: Patricia E. Stern, Deputy Attorney General, R.J. Hughes Justice Complex, Division of Law, Trenton, NJ, Attorney for Defendants.

FELIX P. GONZALEZ, Office of the City Attorney, Camden, NJ, Attorney for Defendant City of Camden.

OPINION

JOSEPH E. IRENAS, S.U.S.D.J.

Presently before the Court is Defendants' Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on Plaintiff's claims alleging violation of his constitutional rights under the First, Fifth and Fourteenth Amendments. Plaintiff opposes summary judgment and requests, in the alternative, leave to file an amended complaint asserting a claim based on the Impairment of Contracts Clause, Art. I, § 10, of the United States Constitution. For the reasons set forth below, the Court will grant Defendants' Motion for Summary Judgment. The Court will also exercise its discretion under Federal Rule of Civil Procedure 15(a) to deny Plaintiff's Cross-Motion for Leave to Amend with respect to Plaintiff's proposed Impairment of Contracts Clause claim.

I.

Plaintiff, Richard Cinaglia, was employed by the City of Camden ("Camden") as Chief Financial Officer ("CFO") and Comptroller for twenty-seven (27) years. On May 10, 2000, following an order by the Honorable Francis J. Orlando, A.J.S.C. that Camden had "grossly failed to comply with the Local Fiscal Affairs Law and the Local Budget Law, and that this gross failure has substantially jeopardized [Camden's] fiscal integrity," City of Camden v. Kenny, 336 N.J. Super. 53, 56, 763 A.2d 777, 779 (App. Div. 2000), the Local Finance Board ("Board") adopted a resolution for the purpose of placing Camden under its supervision pursuant to the Supervision Act, N.J.S.A. 52:27BB-55 et seq.

On January 23, 2001, Camden's business administrator, Norton Bonaparte ("Bonaparte"), requested that the Board review the office of the CFO. Bonaparte also recommended to the Board that Plaintiff be removed from his position in order to improve compliance with financial reporting standards.

On February 14, 2001, the Board held a meeting regarding Bonaparte's request and recommendation. At this meeting, testimony was taken from Bonaparte, as well as David Miller, a state auditor, and Plaintiff. Bonaparte testified regarding his concerns about Camden's accounting practices, and recommended that Plaintiff be removed from his position as CFO. Bonaparte also stated that he asked Plaintiff to resign and that Plaintiff had refused to do so. Miller's testimony dealt with the audits, Camden's computer system, and the responsibilities of the CFO under the Camden City Code. Plaintiff testified that a number of problems interfered with the office's ability to keep proper financial accounts. No further action was taken at this meeting.

On June 25, 2001, the Board conducted a hearing wherein it was decided that it was necessary to Camden's financial rehabilitation to remove Plaintiff from the CFO position. Plaintiff, who was represented by counsel at this hearing, again testified to the various problems that interfered with the office's ability to keep proper financial accounts. Plaintiff also reiterated his testimony regarding Camden's computer system. Several other people, including Bonaparte and Miller, also testified at this meeting.

On June 29, 2002, Camden's City Council met to consider the Board's resolution. However, the City Council failed to take action to remove Plaintiff from his position. On July 3, 2001, the Acting Director, Anthony Cancro, issued an order directing that Plaintiff be removed from his position as CFO/Comptroller, pursuant to the Board's statutory authority under N.J.S.A. 52:27BB-66.1, and in accordance with the Board's resolution of June 25, 2001.

While Plaintiff appealed his dismissal from the Comptroller position to the State Merit System Board of the Department of Personnel, he did not, however, appeal his removal from the CFO position. Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendants removed Plaintiff from his tenured position as Chief Financial Officer for the City of Camden in violation of his due process and equal protection rights. The complaint also alleges that Defendants' conduct was retaliatory in nature in violation of Plaintiff's First Amendment rights to freedom of speech. Plaintiff seeks injunctive relief, compensatory damages, and attorney's fees pursuant to 42 U.S.C. § 1988.

II.

"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). However, "a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but...must set forth specific facts showing that there is a genuine issue for trial." Id. at 248 (citation omitted).

III.

To establish a claim under Section 1983, a plaintiff must demonstrate a violation of a right protected by the Constitution or laws of the United States that was committed by a person acting under the color of state law. See Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). The first step in evaluating a section 1983 claim is to "identify the exact contours of the underlying right said to have been violated" and to determine "whether the plaintiff has alleged a deprivation of a constitutional right at all." County of Sacramento v. Lewis, 523 U.S. 833, 841, 118 S.Ct. 1708, 140 L.Ed.2d 1042 (1998).

Defendants contend that, as government officials, acting pursuant to the authority granted to them by the Supervision Act, they are entitled to qualified immunity from suits brought under 42 U.S.C. § 1983. See Sherwood v. Mulvihill, 113 F.3d 396, 398-99 (3d Cir. 1997). An individual is immune if his or her conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 399. Where a defendant asserts this defense in a motion for summary judgment, the plaintiff has the initial burden to prove that defendant's conduct violated some clearly established right. Id. Thus, the inquiry must begin with the question of whether the plaintiff's allegations are sufficient to establish "a violation of a constitutional right at all." Id. (citation omitted). Only if a plaintiff carries this initial burden must the defendant then demonstrate that he had an objectively reasonable belief in the lawfulness of his or her conduct. Id.

A.

Count I of Plaintiff's Complaint rests on an alleged violation of Plaintiff's First Amendment rights. According to the allegations in the complaint, Plaintiff claims that his constitutional rights to free speech were violated because Defendants suspected that he was involved in the distribution of a news letter critical of Defendants. In Plaintiff's Brief in Opposition to Defendants' Motion for Summary Judgment, he voluntarily abandons this claim, in light of the Third Circuit's decision in Ambrose v. Township of Robinson, 303 F.3d 488 (2002), due to his inability to assert that he participated in any type of protected conduct.

B.

Count II of the Complaint alleges that Plaintiff's due process rights under the Fifth and Fourteenth Amendments were violated by Defendants' actions in ordering the removal of Plaintiff from his position as Camden's CFO. In order to establish that removal from a position of public employment violated due process, Plaintiff must prove: (1) that he was deprived a property or liberty interest encompassed by the Fourteenth Amendment, and (2) that the state deprived him of the protected interest without requisite notice or some type of hearing. Independent Enterprises Inc. v. Pittsburgh Water and Sewer Authority, 103 F.3d 1165, 1177 (3d Cir. 1997).

Plaintiff contends to have a clearly established right to his position as Camden's CFO, under N.J.S.A. 40A:9-140.8, which grants tenure to a municipality's CFO after reappointment to that position following four consecutive years of service. Plaintiff argues that by acting pursuant to their authority under N.J.S.A. 52:27BB-66.1, enacted four years after the tenure act, Defendants retroactively applied an Act in violation of Plaintiff's constitutional rights to due process when they removed him from the CFO position. Plaintiff argues that, by knowingly violating Plaintiff's constitutional rights, Defendants are not entitled to qualified immunity.

In order to have a property interest protected by the constitution, Plaintiff must be able to demonstrate a "legitimate claim of entitlement" to tenure. Harel v. Rutgers, 5 F.Supp.2d 246, 272 (D.N.J. 1998) (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). State law governs the question whether a constitutionally protected property right has been established. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15

(1974). It is undisputed that at the time of his removal, Plaintiff held a tenured position

Assuming, arguendo, that Plaintiff has been deprived of a...