Johnson v. City of Clifton

1

TEO JOHNSON, TEO T. POWELL, ZENA L. POWELL a.k.a. THE JOHNSON-POWELL GROUP, LLC, Plaintiffs, v. CITY OF CLIFTON, CLIFTON POLICE DEPARTMENT, and THE CITY OF CLIFTON ABC LICENSING BOARD, Defendants.

Civil Action No. 20-20118 (CCC)

United States District Court, D. New Jersey

June 29, 2023

NOT FOR PUBLICATION

OPINION

CLAIRE C. CECCHI, U.S.D.J.

This matter comes before the Court by way of Plaintiffs Teo Johnson, Zena L. Powell, and Teo T. Powell's (together “Plaintiffs”) and Defendants City of Clifton Clifton Police Department, and City of Clifton Board of Alcoholic Beverage Control's (“Clifton ABC” and together, “Defendants”) cross-motions for summary judgment. ECF Nos. 66, 69-76. Defendants filed an opposition to Plaintiffs' motion. ECF No. 78. The Court decides this matter without oral argument pursuant to Fed.R.Civ.P. 78(b). For the reasons set forth below Plaintiffs' motion for summary judgment is DENIED and Defendants' motion for summary judgment is GRANTED.

I. BACKGROUND^[1]

This action concerns the denial of a person-to-person liquor license transfer application submitted by the Johnson Powell Group, LLC in the City of Clifton, Passaic County, New Jersey. ECF No. 1-2 at 1; Def. SMF ¶ 6. The Johnson Powell Group is an entity comprised of two individuals, Plaintiffs Teo Johnson and Teo T. Powell. Def. SMF ¶ 6; ECF No. 66-3, Ex. C at 25. The transfer application also listed Plaintiff Zena L. Powell as an operator of the business. Id. at 18. Plaintiffs sought transfer of an existing liquor license, license number 1602-44-004-004, from S&S Liquors, LLC to the Johnson Powell Group. Id. at 22; ECF No. 1-2 at 1.

Clifton ABC is the entity established “to regulate the sale and licensing of alcoholic beverage licenses within the City of Clifton.” Def. SMF ¶ 7 (citing N.J.S.A. 33:1-5). On or about October 9, 2020, Plaintiffs filed, via their counsel Robert F. Green, Esq., a transfer application with Clifton ABC's board secretary, Michele Butler.^[2] Def. SMF ¶ 9; ECF No. 1-7 at 30. Several days later, on October 13, 2020, Ms. Butler notified Mr. Green that Plaintiffs' application contained a number of deficiencies that required fixing. ECF No. 1-3 at 19-20. On October 20, 2020, Ms. Butler alerted Mr. Green to several additional issues on the application that needed resolution. Def. SMF ¶ 11; ECF No. 1-3 at 15-18. And on October 26, 2020, Ms. Butler received a “seller's consent to transfer” form, which completed Plaintiff's transfer application. Def. SMF ¶ 12; ECF No. 66-3, Ex. D at ¶ 7.

On or around the next day, Ms. Butler sent Plaintiffs' application to then-Detective Glen Arthur of the Clifton Police Department, ECF No. 66-3, Ex. D at ¶ 7, a current Sergeant and former liaison officer to Clifton ABC, ECF No. 66-3, Ex. E at ¶ 1. Sergeant Arthur was tasked with completing a background investigation of the applicant pursuant to N.J.S.A. 33:1-25. Def. SMF ¶ 13; ECF No. 66-3, Ex. D at ¶ 2. Among other things, Sergeant Arthur's investigation involved reviewing Plaintiffs' application, “reviewing criminal history record information search results of the applicant's members obtained from the State Bureau of Identification . . . and the Federal Bureau of Investigation [(“FBI”)],” and interviewing the applicant's members. Def. SMF ¶ 14.

Applicants are also required to order fingerprint searches through a third party and provide the results of those searches to the Clifton Police Department. Id. at ¶ 15.

On or about December 4, 2020, Sergeant Arthur learned from documentation provided by the FBI that Plaintiff Teo Johnson had previously been convicted of, and served a ten-year prison sentence for, a drug-related charge under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Def. SMF ¶ 22. This conflicted with Plaintiffs' transfer application, which indicated that no member of the Johnson Powell Group had ever been convicted of a criminal offense. Pl. SMF ¶ 9; ECF No. 66-3, Ex. C at 20. After making this discovery, Sergeant Arthur contacted Deputy Attorney General Richard Karczewski, who informed him that (1) Plaintiff Teo Johnson's RICO conviction “would be considered a crime involving moral turpitude,” and (2) Plaintiffs' inconsistent application response would constitute a disqualifying misrepresentation. Def. SMF ¶¶ 23-25. Sergeant Arthur also confirmed that Plaintiffs had not applied for a disqualification removal order, which could qualify the Johnson Powell Group for a liquor license notwithstanding the criminal conviction. Id. at ¶ 26.

On December 4, 2020, Sergeant Arthur also interviewed Plaintiffs Teo T. Powell and Teo Johnson as part of his investigation. Pl. SMF ¶ 9. During this interview, Sergeant Arthur informed them that he was aware of Plaintiff Johnson's 1995 RICO conviction and subsequent period of incarceration, which Plaintiff Johnson confirmed. Def. SMF ¶ 29. At that time, Sergeant Arthur informed Plaintiffs Powell and Johnson that the RICO conviction and misrepresentation on their application were grounds for disqualification and that “his recommendation, via the Police Department's chain of command would be to deny” Plaintiffs' application. Def. SMF ¶ 30. The next day, Sergeant Arthur asserts that he informed Plaintiffs' counsel, Mr. Green, of his findings and recommendation to deny Plaintiffs' application. Id. at 32.

Defendants assert that Plaintiffs and Mr. Green were notified that their transfer application was placed on the agenda for the ABC Board's December 9, 2020, monthly meeting and that they were entitled to appear and be heard. Id. at ¶ 34; see also Pl. SMF ¶ 8. Neither Plaintiffs nor their counsel appeared before the ABC Board on December 9th and the Board denied the Johnson Powell Group's transfer application. Def. SMF ¶¶ 33-34. On December 16, 2020, Ms. Butler provided Mr. Green with written notice that the Johnson Powell Group's application had been denied “on the basis of the disqualifying discrepancies found during the course of the Clifton Police Department's investigation.” Id. at ¶ 35; see also ECF No. 72-3.

Plaintiffs initiated the instant action on December 21, 2020. ECF No. 1. The complaint, brought under 42 U.S.C. § 1983, alleges violations of the Fourth, Fifth, Ninth and Fourteenth Amendments. Id. at 3. In addition to the § 1983 claim, the complaint alleges statutory violations of (i) 18 U.S.C. § 242 for deprivation of rights; (ii) 42 U.S.C. § 1985 for conspiracy to interfere; (iii) 42 U.S.C. § 1986 for neglect to prevent; and (iv) Title VII of the Civil Rights Act of 1964. ECF No. 1 at 3. Interpreting their complaint liberally, Plaintiffs' claims are predicated on three grounds: (1) Defendants denied Plaintiffs' transfer application on bases that violated their constitutional rights, id. at 3-4 (Section II(B) & (D)); (2) Defendants conspired to delay Plaintiffs' application process resulting in Plaintiffs suffering economic harm, id. at 4 (Section II(D); Section III(A) & (B)); and (3) Defendants denied Plaintiffs' application after unlawfully obtaining a sealed record of Plaintiff Teo Johnson's 1995 RICO conviction, id. at 4 (Section II(D); Section III(C)). Fact discovery closed in this case on March 31, 2022. See ECF No. 47. Defendants moved for summary judgment on September 30, 2022, ECF No. 66, and Plaintiffs moved for summary judgment on October 17, 2022, ECF No. 69.

II. LEGAL STANDARD

a. Summary Judgment Under Fed.R.Civ.P. 56

Summary judgment is appropriate if the “depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers or other materials” demonstrate that there is no genuine issue as to any material fact, and, construing all facts and inferences in a light most favorable to the non-moving party, “the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) see also Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986); Fed.R.Civ.P. 56(a).

The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has satisfied this burden, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Grp. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). In order to meet its burden, the non-moving party must “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,' designate ‘specific facts showing that there is a genuine issue for trial.'” Celotex, 477 U.S. at 324 (citation omitted); see also Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial,” summary judgment is appropriate. Celotex, 477 U.S. at 322. Importantly, summary judgment is also appropriate “if the non-moving party provides merely conclusory or speculative evidence.” Beard v. Norfolk S. Ry. Corp., No. 18-CV-1801, 2020 WL 2616670, at *2 (M.D. Pa. Mar. 12, 2020). Indeed, “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 Fed.Appx. 896, 899 (3d Cir. 2007); see also Beard, 2020 WL 2616670, at *3 (“[O]nly evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.”).

“The standard by which the court decides a summary...