1

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DONALD LEE, et al., 

 Plaintiffs,

 

v.

TOMAS PADILLA, et al., 

 Defendants.

Civil Action Number: 2:11-1463

OPINION

HON. WILLIAM J. MARTINI

OPINION

I. INTRODUCTION

On March 15, 2011, Plaintiffs Donald Lee, Patrick O’Connor, Allen DeLeone, and 

Vincent Riotto, officers of the Hackensack Police Department (“HPD”), filed a ten-count 

civil rights against Defendant HPD Chief of Police, C. Kenneth Zisa, and others, alleging 

that the Defendants violated their constitutional rights.1

Presently before the Court is Defendant Zisa’s Rule 12(b)(6) motion to dismiss the 

Complaint. For the reasons elaborated below, the motion will be GRANTED in part, and 

 1 Prior to instituting this action, HPD officers instituted six other civil rights actions 

against Chief Zisa and others. See Ferraioli v. City of Hackensack, Civil Action No. 2:09-

cv-2663 (filed June 2, 2009 D.N.J.) (WJM-MF); Aiellos v. Zisa, Civil Action No. 2:09-

cv-3076 (filed June 24, 2009 D.N.J.) (WJM-MF); Borntrager v. Zisa, Civil Action 

No. 2:09-cv-6495 (filed Dec. 23, 2009 D.N.J.) (WJM-MF); Finley v. City of Hackensack, 

Civil Action No. 2:10-cv-0512 (filed Jan. 28, 2010 D.N.J.) (WJM-MF); Hermann v. Zisa, 

Civil Action No. 2:10-cv-2349 (filed May 7, 2010 D.N.J.) (WJM-MF); Campos v. Zisa, 

Civil Action No. 2:10-cv-2568 (filed May 18, 2010 D.N.J.) (WJM-MF). These six law 

suits have been consolidated for pretrial purposes. Lee v. Padilla, the instant litigation,

was not consolidated with them. However, some of the Plaintiffs in Lee overlap with the 

plaintiffs in the consolidated matters; some of the Defendants in Lee overlap with the 

defendants in the consolidated matters; and, finally, some of Plaintiffs’ theories of 

liability in Lee overlap with the theories of liability put forward by plaintiffs in the 

consolidated matters. 

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DENIED in part. 

Specifically: 

Count I: Lee’s First Amendment claim against Zisa will be dismissed.

Count II: Lee’s CEPA claim will be dismissed against Defendants Zisa, Padilla, and the 

City of Hackensack. I.e., Count II will be dismissed.

Count IV: O’Connor’s First Amendment claim against Zisa will be dismissed. 

Count VI: Riotto’s Due Process claim against Zisa will be dismissed. 

Count VII: Riotto’s federal conspiracy claim will be dismissed.

Count VIII: Riotto’s civil conspiracy claim against Zisa will be dismissed.

Count IX: Lee’s Free Speech/Freedom of Association-related claim against Zisa will be 

dismissed. O’Connor’s Free Speech/Freedom of Association-related claim against Zisa 

will be dismissed. Riotto’s Due Process-related claim against Zisa will be dismissed. 

The following counts will go forward: 

Count I: Lee’s First Amendment claim against Padilla will proceed.

Count III: O’Connor’s CEPA claim will proceed. 

Count IV: O’Connor’s First Amendment claim will proceed against Defendants Padilla, 

Molinelli, Bergen County Prosecutor’s Office, County of Bergen, and the City of 

Hackensack, but not against Zisa. 

Count V: DeLeone’s First Amendment claim will proceed against Zisa and Padilla. 

Count VI: Riotto’s Due Process claim will proceed against all Defendants except Zisa. 

Count VIII: Riotto’s civil conspiracy claim will proceed against all Defendants except 

Zisa. 

Count IX: Plaintiffs’ claim under NJCRA will go forward except in relation to Lee’s Free 

Speech/Freedom of Association-related claim against Zisa; except in relation to 

O’Connor’s Free Speech/Freedom of Association-related claim against Zisa; and except 

in relation to Riotto’s Due Process-related claim against Zisa. 

Count X: Plaintiffs’ claim against the City of Hackensack will go forward.

Finally, all conduct by Chief Zisa pre-dating March 15, 2009 or post-dating April 30, 

2010 under any remaining count is barred for the purpose of establishing liability against 

Zisa.

II. FACTUAL BACKGROUND ALLEGED IN THE COMPLAINT

The gravamen of the Complaint is that the Hackensack Chief of Police, Defendant Zisa,

engaged in a pattern of extortion, against other HPD officers, i.e., Plaintiffs, seeking, 

among other things, political donations to further Zisa’s political career and the political 

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career of those allied with him, including candidates for office within the Policemen’s 

Benevolent Association (“PBA”) of Hackensack. It is further alleged that those who were 

not allied with Zisa, including those officers who refused to donate to Zisa and his allies’

political campaigns, were subject to retaliation and threats of retaliation in violation of 

Plaintiffs’ First Amendment free speech and freedom of association rights.2 More 

specifically, Plaintiffs have put forward a ten-count Complaint. Count I is a First 

Amendment claim, asserted under Section 1983,3 brought by Plaintiff Lee against 

Defendants Zisa and Tomas Padilla. Count II is a Conscientious Employee Protection Act 

(CEPA) claim brought by Plaintiff Lee against Defendants Zisa, Padilla, and the City of 

Hackensack. Count III is a CEPA claim brought by Plaintiff O’Connor against multiple 

Defendants. Count IV is a First Amendment claim, asserted under Section 1983, brought 

by Plaintiff O’Connor against multiple Defendants. Count V is a First Amendment claim, 

asserted under Section 1983, brought by Plaintiff DeLeone against Defendants Padilla 

and Zisa. Count VI is Fourteenth Amendment claim, asserted under Section 1983, by 

Plaintiff Riotto against all Defendants. Count VII is a conspiracy claim, under Section 

1985,4

III. STANDARD OF REVIEW

brought by Plaintiff Riotto against all Defendants. Count VIII is a state common 

law conspiracy claim brought by Plaintiff Riotto against all Defendants. Count IX is a 

New Jersey Civil Rights Act claim brought by all Plaintiffs against all Defendants. And 

Count X is a Section 1983 claim brought by all Plaintiffs against the City of Hackensack.

The Defendant’s motion to dismiss is brought pursuant to the provisions of Fed. R. Civ. 

P. 12(b)(6). This rule provides for the dismissal of a complaint, in whole or in part, if the 

plaintiff fails to state a claim upon which relief can be granted. The moving party bears 

the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 

744, 750 (3d Cir. 2005), and dismissal is appropriate only if, accepting all of the facts 

alleged in the complaint as true, the plaintiff has failed to plead “enough facts to state a 

claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007) (abrogating “no set of facts” language found in Conley v. Gibson, 355 U.S. 41, 45-

46 (1957)). The facts alleged must be sufficient to “raise a right to relief above the 

speculative level.” Twombly, 550 U.S. at 555. This requirement “calls for enough fact[s]

to raise a reasonable expectation that discovery will reveal evidence of” necessary 

elements of the plaintiff’s cause of action. Id. Furthermore, in order satisfy federal 

pleading requirements, the plaintiff must “provide the grounds of his entitlement to

relief,” which “requires more than labels and conclusions, and a formulaic recitation of 

the elements of a cause of action will not do.” Phillips v. Cnty. of Allegheny, 515 F.3d 

224, 231 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 555).

 2 For a fuller development of the facts, the Court refers to the decisions already issued in 

the consolidated matters. See supra note 1. 

3 42 U.S.C. § 1983.

4 42 U.S.C. § 1985. 

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In considering a motion to dismiss, the court generally relies on the complaint, attached 

exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007). 

The court may also consider “undisputedly authentic document[s] that a defendant 

attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the 

[attached] document[s].” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 

1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the 

complaint and whose authenticity no party questions, but which are not physically 

attached to the pleading, may be considered.” Pryor v. Nat’l Collegiate Athletic Ass’n, 

288 F.3d 548, 560 (3d Cir. 2002). 

IV. ANALYSIS

Chief Zisa puts forward a number of defenses. This opinion discusses each in turn.5

A. Statute of Limitations

This action was filed on March 15, 2011. Defendant asserts that a two-year statute of 

limitations applies “to all of the Plaintiffs’ claims.” Pl.’s Br 14 (emphasis added). 

Plaintiffs do not contest that a two-year limitations period – cutting off causes of action 

accruing before March 15, 2009 – applies here. Rather, Plaintiffs contend that 

Defendants’ actions from that early period are part-and-parcel of a series of “continuing 

violations.” However, it appears that the rule in this circuit is that “individually 

actionable [First Amendment] allegations cannot be aggregated . . . . [Rather], First 

Amendment retaliation claims are always individually actionable, even when relatively 

minor.” O’Connor v. City of Newark, 440 F.3d 125, 127-28 (2006). Thus, allegations 

relating to events predating March 15, 2009 are not actionable against Chief Zisa. For this 

reason Lee’s First Amendment claim relating to the contested PBA election is barred. 

B. Chief Zisa was on Administrative Leave After April 30, 2010

Chief Zisa was placed on administrative leave on April 30, 2011. Much of the wrongful 

conduct pled by Plaintiff Riotto postdates that event. No well-pled post April 30, 2011 

allegations by Riotto would establish, if proven, any personal wrongdoing by Zisa. Hence 

they cannot form a basis of liability. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d 

Cir. 1988). 

C. Lee’s First Amendment Claims

Lee asserts a First Amendment claim grounded in retaliation suffered in consequence of 

his failing to support the pro-Zisa candidate in the June 2008 PBA election. However, his 

brief points to no allegations that he suffered any consequences in regard to the election, 

much less well-pled allegations in regard to the time period between March 15, 2009 and 

April 30, 2011. 

 5 Certain of the defenses asserted here have already been asserted and discussed in detail 

in decisions in the consolidated matters. See supra note 1. 

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Lee also alleges that Chief Zisa installed audio and visual recording devices (which were 

in public view) on the premises of Hackensack Police Department headquarters. Lee 

complained to Zisa that such devices were illegal. Lee alleges that he suffered retaliation 

for lodging these complaints. A valid First Amendment free speech claim requires that 

the retaliation arises in consequence of protected speech addressing a matter of public 

concern. Connick v. Myers, 461 U.S. 138, 146 (1983). Where the retaliation is in 

consequence of speech amounting to “complaints about [the] conditions of employment,” 

no claim may be asserted. Stroman v. Colleton Cnty. Sch. Dist., 981 F.2d 152, 156 (4th 

Cir. 1992). Here the speech related to the administration of government offices and the 

speech was not directed to the public, but was directed to Chief Zisa. It would seem to 

follow that the free speech claim fails.6

Finally, Lee asserts a First Amendment freedom of association claim. See Elrod v. Burns, 

427 U.S. 347, 359 (1976); Branti v. Finkel, 445 U.S. 507 (1980); Rutan v. Republican 

Party of Ill., 497 U.S. 62 (1990). He argues that he Zisa retaliated against him for 

associating with the plaintiffs in Aeillos. This theory of liability fails under Twombly, as 

the contours of that “association” are not sufficiently developed. 

D. O’Connor’s First Amendment Claims

Defendant argues that O’Connor’s First Amendment claim fails because he fails to allege 

that Zisa took any actions against him. Plaintiff’s opposition brief fails to respond to this 

argument. As such, Plaintiff’s count is waived or abandoned. Cf. Conroy v. Leone, 316 

Fed. Appx. 140, 144 n. 5 (3d Cir. Mar. 9, 2009) (“We find this undeveloped argument 

has been waived.”); Clay v. Holy Cross Hosp., 253 F.3d 1000, 1002 n. 1 (7th Cir. 2001) 

(holding that perfunctory and undeveloped arguments, and arguments unsupported by 

pertinent authority, are waived). 

E. DeLeone’s First Amendment Claim

Defendant argues that DeLeone’s First Amendment claim fails because the purported 

retaliation was in connection with DeLeone’s mere professional association with Aiellos 

and Ferraioli plaintiffs and because DeLeone associated with other HPD officers during 

their disciplinary review. Even assuming that such associations fail to state a claim, 

 6 Plaintiffs cite Ferraioli v. City of Hackensack, 2010 WL 4421098, at *5 (Feb. 2, 2010 

D.N.J.) (Chesler, J.), as contrary authority. In Ferraioli, Judge Chesler allowed a cause of 

action grounded in speech about job conditions to proceed as a free speech claim where 

the conduct relating to the job conditions allegedly was instituted in direct retaliation for 

the exercise of protected speech and association rights. I.e., the contested PBA elections. 

Here, by contrast, Plaintiffs merely make the generic claim that the audio and visual 

recording devices were put in place in order to chill free speech. But, there are no wellpled allegations suggesting that Zisa had the recording equipment placed on the premises 

in retaliation for the exercise of any particular protected speech or association by 

Plaintiffs. 

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DeLeone also alleged that he suffered retaliation by Zisa in consequence of his (that is, 

DeLeone’s) support of PBA candidates opposed by Zisa. Such allegations state a claim. 

See, e.g., Ferraioli v. City of Hackensack, 2010 WL 4421098, at *4-8 (Feb. 2, 2010 

D.N.J.) (Chesler, J.). 

F. Lee’s CEPA Claim

As explained, Chief Zisa ordered the installation of recording devices on the premises of 

the HPD headquarters. Lee complained to Zisa about the placement of these devices, and 

further alleges that he suffered retaliation for lodging these complaints. Lee now asserts a 

CEPA claim, i.e., a whistleblower claim. 

In order to allege a CEPA claim, a Plaintiff 

does not [have] to show that a law, rule, regulation or clear mandate of 

public policy actually would be violated if all the facts he or she alleges are 

true. Instead, a plaintiff must set forth facts that would support an 

objectively reasonable belief that a violation has occurred. In other words, 

when a defendant requests that the trial court determine as a matter of law 

that a plaintiff’s belief was not objectively reasonable, the trial court must 

make a threshold determination that there is a substantial nexus between the 

complained-of conduct and a law or public policy identified by the court or 

the plaintiff.

Dzwonar v. McDevitt, 828 A.2d 893, 901 (N.J. 2003). Plaintiff Lee has failed to identify 

what statute, rule, regulation, or clear mandate of public policy was violated (or was 

reasonable to believe was violated) by Zisa’s placing recording devices on HPD 

premises. The suggestion that the Wire Tap statute was violated is not well supported. It 

appears that the CEPA claim fails. 

G. Riotto’s Fourteenth Amendment Claim

Plaintiff Riotto asserts a Fourteenth Amendment procedural due process claim against 

Zisa. The thrust of the allegation is that after Riotto brought a complaint against Salcedo, 

Zisa appointed Salcedo to investigate alleged wrongdoing by Riotto, and made this 

appointment while knowing that Riotto had already filed his complaint against Salcedo. 

Salcedo investigated disciplinary charges against Riotto for allegedly failing to timely 

report threats by one HPD officer against another. The disciplinary hearing was presided 

over by James Murphy, a retired Superior Court judge. Riotto was represented by 

counsel. Salcedo testified against Riotto at the hearing, apparently over Riotto’s 

attorney’s objections. 

Plaintiff Riotto does not deny that he had notice and an opportunity to be heard. Rather, 

he denies that he had a neutral adjudicator (a purported friend of Zisa) and he argues that 

Salcedo was biased against him. More importantly, he argues that Zisa is responsible for 

the denial of a fair hearing because Zisa appointed Salcedo to investigate Riotto. 

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However, the decision to admit Salcedo’s evidence at the hearing was Murphy’s, not 

Zisa’s. Second the decision to recommend Riotto for demotion was Murphy’s, not Zisa’s. 

Third, Riotto fails to elaborate any actual harm arising in connection from Riotto’s 

purported bias. He puts forward no testimony tending to establish that Salcedo lied or 

even that he substantially shaded the truth to Riotto’s disadvantage. Finally, Riotto has 

access to administrative and appellate review in which to correct any purported error by 

Murphy. In these circumstances the due process claim fails. See O’Neill v. City of 

Philadelphia, 32 F.3d 785, 790-91 (3d Cir. 1994) (“We have been given no reason why a 

litigant in a state administrative proceeding should be permitted to forego state-court 

[administrative or] judicial review of the agency’s decision in order to apply for relief in 

federal court.”); cf. Patsy v. Florida Bd. of Regents, 457 U.S. 496 (1982) (holding that 

exhaustion is not required where the proceeding is remedial, as opposed to coercive).

H. Riotto’s Federal and State Conspiracy Claims

As to Count VII, the federal conspiracy claim under Section 1985, Riotto fails to oppose 

the defenses put forward by Defendants. As a result, Riotto’s claim is waived or 

abandoned. Cf. Conroy v. Leone, 316 Fed. Appx. 140, 144 n. 5 (3d Cir. Mar. 9, 2009) 

(“We find this undeveloped argument has been waived.”). As to the civil conspiracy 

claim, Count VIII, it fails because the underlying Fourteenth Amendment claim fails. See

Williams v. Fedor, 69 F. Supp. 2d 649, 665 (M.D. Pa. 1999), aff’d, 211 F.3d 1263 (3d 

Cir. 2000); Def.’s Br. 29 (citing Fedor); Pl.’s Br.35 (same). 

I. New Jersey Civil Rights Act 

All the Court’s ruling in regard to Section 1983 and Section 1985 equally apply to 

Plaintiffs’ claims under the New Jersey Civil Rights Act, as to the two bodies of law are 

generally coextensive.

J. Other Relief

Defendant Zisa’s application for relief under res judicata principles is denied as he can 

point to no final judgment in the related actions. The Court notes that the number of 

actions filed by Plaintiffs has continued to balloon over the last three years. Duplicative 

filings burden Defendants and the Court. Should the number of actions brought by the 

same Plaintiffs continue to grow without cause, the Court may revisit this issue or 

consider sanctions under Rule 11. Finally, Zisa’s request to strike certain matters from 

the Pleadings is denied. 

V. CONCLUSION

For the reasons elaborated above, the Court GRANTS in part, and DENIES in part 

Defendant C. Kenneth Zisa’s motion to dismiss.

Specifically: 

Count I: Lee’s First Amendment claim against Zisa is DISMISSED.

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Count II: Lee’s CEPA claim is dismissed against Defendants Zisa, Padilla, and the City 

of Hackensack. I.e., Count II is DISMISSED. 

Count IV: O’Connor’s First Amendment claim against Zisa is DISMISSED. 

Count VI: Riotto’s Due Process claim against Zisa is DISMISSED. 

Count VII: Riotto’s federal conspiracy claim is DISMISSED.

Count VIII: Riotto’s civil conspiracy claim against Zisa is DISMISSED.

Count IX: Lee’s Free Speech/Freedom of Association-related claim against Zisa is 

DISMISSED. O’Connor’s Free Speech/Freedom of Association-related claim against 

Zisa is DISMISSED. Riotto’s Due Process-related claim against Zisa is DISMISSED. 

The following counts will go forward: 

Count I: Lee’s First Amendment claim against Padilla will proceed.7

Count III: O’Connor’s CEPA claim will proceed. 

Count IV: O’Connor’s First Amendment claim will proceed against Defendants Padilla, 

Molinelli, Bergen County Prosecutor’s Office, County of Bergen, and the City of 

Hackensack, but not against Zisa. 

Count V: DeLeone’s First Amendment claim will proceed against Zisa and Padilla. 

Count VI: Riotto’s Due Process claim will proceed against all Defendants except Zisa. 

Count VIII: Riotto’s civil conspiracy claim will proceed against all Defendants except 

Zisa. 

Count IX: Plaintiffs’ claim under NJCRA will go forward except in relation to Lee’s Free 

Speech/Freedom of Association-related claim against Zisa; except in relation to 

O’Connor’s Free Speech/Freedom of Association-related claim against Zisa; and except 

in relation to Riotto’s Due Process-related claim against Zisa. 

Count X: Plaintiffs’ claim against the City of Hackensack will go forward. 

Finally, all conduct by Chief Zisa pre-dating March 15, 2009 or post-dating April 30, 

2010 under any remaining count is barred for the purpose of establishing liability against 

Zisa. 

An appropriate order accompanies this memorandum opinion. 

s/William J. Martini

_______________________

DATE: August 9, 2011 William J. Martini, U.S.D.J.

 7 With regard to each count that goes forward, the Court’s conclusion is subject to any 

motion to dismiss brought by other Defendants which have yet to be adjudicated. 

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