NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DENNIS CRUZ, 

Plaintiff,

v. 

COUNTY OF BERGEN, THE BERGEN

COUNTY POLICE DEPARTMENT,

CHIEF JOHN SCHMIDIG and JOHN

DOES 1-4,

Defendants.

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Hon. Dennis M. Cavanaugh

 OPINION

Civ. No. 10-3322 (DMC) (JAD)

DENNIS M. CAVANAUGH, U.S.D.J.:

This matter comes before the Court upon the motion of Defendants County of Bergen, the

Bergen County Police Department (the “Police Department”) and Chief John Schmidig (“Chief

Schmidig”) for partial dismissal of claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure. No oral argument was heard pursuant to Rule 78. For the reasons stated below,

Defendants’ motions are granted in part and denied in part.

I. BACKGROUND

Plaintiff Dennis Cruz is a Bergen County Police Officer of Cuban descent. Pl.’s Br. 1. 

During his term of employment with the Police Department, Plaintiff alleges that he was

continuously subjected to race-based discrimination and harassment – including racial slurs and

derogatory comments – at the hands of his superior officers, Sergeants Steven Malone

(“Malone”) and Richard Cleri (“Cleri”). Compl. ¶¶ 15-19. Malone and Cleri purportedly

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“micro-managed Plaintiff and consistently gave him undesirable assignments.” Compl. ¶ 20. 

The harassment and retaliatory conduct reached such an extent that in 2009, Plaintiff

suffered from an anxiety attack. Compl. ¶ 29. Subsequently, Plaintiff was informed that he was

the subject of two internal investigations, one involving his mental health, and another based on

“false allegations against him.” Compl. ¶ 30. 

On or about April 24, 2009, Plaintiff was ordered to undergo a mental evaluation in order

to determine his fitness for duty. Compl. ¶ 31. Pending the results of the psychological exam,

Plaintiff was instructed by Chief Schmidig to report to headquarters for a special assignment in

his full Class “A” uniform excluding his gun belt. Compl. ¶ 36. Allegedly, the donning of a

uniform without a gun belt “attracts unnecessary attention to an officer, which was the purpose of

Chief Schmidig’s order.” Id. Plaintiff claims that previously, two Caucasian officers had been

on special assignment at headquarters and were permitted to appear in civilian attire. Id. 

Plaintiff was made to undergo a second psychological exam on August 12, 2009, without

first being told if he had passed the first exam. Compl. ¶ 41. He was eventually cleared for duty

in September 2009 and given back his firearm and ammunition. Compl. ¶ 43. Plaintiff has never

been advised as to whether the second internal affairs matter has been closed, or as to the results

of that investigation. Compl. ¶ 44.

Plaintiff attempted to complain of the harassment and discriminatory treatment to

superior officers on numerous occasions to no avail. Compl. ¶ 21. He also tried, on numerous

occasions, to meet with Chief Schmidig regarding the hostile work environment. Plaintiff,

however, never did meet with Chief Schmidig. Id. 

The present action was instituted on June 29, 2010 seeking declaratory and injunctive

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relief, and money and punitive damages to redress deprivation of civil rights afforded under 42

U.S.C. §§ 1981 and 1983, the New Jersey Civil Rights Act (“NJCRA”), and the New Jersey Law

Against Discrimination (“LAD”).

II. STANDARD OF REVIEW

In deciding a motion under Rule 12(b)(6), the district court is “required to accept as true

all factual allegations in the complaint and draw all inferences in the facts alleged in the light

most favorable to the [Plaintiff].” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir.

2008). “[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the

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.” Id. To survive a motion to dismiss, the complaint must state a plausible claim. Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1950 (2009). Thus, assuming that the factual allegations in the complaint

are true, those “[f]actual allegations must be enough to raise a right to relief above a speculative

level.” Bell Atl. Corp. 550 U.S. at 555.

III. DISCUSSION

A. Claims Against Chief John Schmidig

1. Counts III and IV: Section 1983

Chief John Schmidig asserts that the individual claims against him are “barred by the

U.S. Supreme Court’s recent decision in Ashcroft v. Iqbal, which explicitly held that there is no

individual supervisory liability under Section 1983.” Defs.’ Br. 7. 

It is well-established that “Government officials may not be held liable for the

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unconstitutional conduct of their subordinates under a theory of respondeat superior.” Iqbal, 129

S. Ct. at 1948. Thus, “a plaintiff must plead that each Government-official, through the official’s

own individual actions, has violated the Constitution.” Id. In his Complaint, Plaintiff asserts that

“[d]espite Plaintiff’s complaints and the fact that superior officers, including Captain Malakas

and Chief Schmidig, were aware of Plaintiff’s allegations, Defendants never conducted any

investigation or took any remedial action to stop the discrimina[tion] and otherwise end the

hostile work environment that existed in the [Police Department].” Compl. ¶ 26. Plaintiff does

not allege that he ever actually spoke with Chief Schmidig about the harassment, instead, the

Complaint states that Plaintiff attempted to complain to the Chief. Compl. ¶¶ 21, 27 (emphasis

added). These allegations are insufficient to state a claim under § 1983 as the Supreme Court has

specifically rejected the theory that “a supervisor’s mere knowledge of his subordinate’s

discriminatory purpose amounts to the supervisor’s violating the Constitution.” Iqbal, 129 S. Ct.

at 1949.

Of the allegations specifically directed towards Chief Schmidig, only one — that related

to the order for Plaintiff to wear a Class A uniform without a gun belt — is the type of direct act

that, if proven to have a discriminatory purpose, could subject Chief Schmidig to liability. See

id. at 1949 (“[E]ach Government official, his or her title notwithstanding, is only liable for his or

her own misconduct.”). In light of this allegation, the Court finds that it must deny Chief

Schmidig’s motion to be dismissed from Counts III and IV.

2. Counts I and II: LAD

A supervisor can only be individually liable under the LAD if he aids, abets, incites,

compels, or coerces the doing of any of the acts forbidden under the act. N.J.S.A. 10:5-12e. The

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New Jersey Supreme Court has held that the words “aiding and abetting ‘require active and

purposeful conduct.’” Cicchetti v. Morris Cnty. Sherrif’s Office, 194 N.J. 563, 594 (2008)

(quoting Tarr v. Ciasulli, 181 N.J. 70, 83 (2004)). That court has further instructed that:

[I]n order to hold an employee liable as an aider or abettor, a

plaintiff must show that (1) the party whom the defendant aids

must perform a wrongful act that causes an injury; (2) the

defendants must be generally aware of his role as part of an overall

illegal or tortious activity at the time that he provides the

assistance; and (3) the defendant must knowingly and substantially

assist the principal violation.

Tarr, 181 N.J. at 84 (quoting Hurley v. Atlantic City Police Dep’t, 173 F.3d 95, 127 (3d Cir.

1999).

Here, the Complaint alleges that Plaintiff tried to meet with Chief Schmidig but never

did. There are no allegations that Chief Schmidig was ever present when any discriminatory

conduct occurred or that Chief Schmidig was in any way aware that Plaintiff was being

discriminated against. There are also no allegations of acts specifically or genereally imputed to

Chief Schmidig that involved a knowing and substantial assistance to the acts of Plaintiff’s

immediate superior officers. Though the Complaint does allege that Chief Shmidig made

Plaintiff don his uniform without a gun belt, there is no allegation that this order was made for

the purpose of assisting the principal discriminatory conduct. The Court declines to infer that

such a connection exists in the absence of any facts alleging that the Chief actually knew about

any discriminatory conduct. Therefore, the individual LAD claims against Chief Schmidig in

Counts I and II must be dismissed.

B. Claims Against Bergen County Police Department

Defendant contends, and Plaintiff concedes that the claims against the Police Department

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must be dismissed because it is an arm of Defendant Bergen County and as such is not a proper

party in a Section 1983 suit. The Court agrees. See, e.g., PBA Local No. 38 v. Woodbridge

Police Dep’t, 832 F. Supp. 808, 826 (D.N.J. 1993).

C. Claims for Punitive Damages

Defendant contends, and Plaintiff concedes, that the claims for punitive damages against

Bergen County in Counts III and IV must be dismissed because Section 1983 does not permit

such recovery as a matter of law. The Court agrees. City of Newport v. Fact Concerts, Inc., 453

U.S. 247, 271 (1981); Coleman v. Kaye, 87 F.3d 1491, 1506 (3d Cir. 1996). Defendant

further contends that punitive damages are also unavailable against a county entity under the

New Jersey Civil Rights Act (the “NJCRA”). Having reviewed the relevant case law, the Court

agrees. See, e.g., Damiani v. West Deptford Twp., No. 07-2884 (JEI), 2008 WL 656041, at *5

(D.N.J. Mar. 7, 2008) (dismissing claim for punitive damages brought against municipality under

NJCRA as not authorized by statute).

IV. CONCLUSION

For the reasons stated, Defendants’ partial motion to dismiss pursuant to Rule 12(b)(6) is

granted in part and denied in part. 

 S/ Dennis M. Cavanaugh 

Dennis M. Cavanaugh, U.S.D.J.

Date: March 29 , 2011 

Orig.: Clerk 

cc: All Counsel of Record

Hon. Joseph A. Dickson, U.S.M.J.

File

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