NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DiSTRICT OF NEW JERSEY

NORAY BAKLAYAN, ET AL,

Plaintiffs,

Civil Action No. 11-03943 (CCC)

V.

OPINION

ALFARO ORTIZ, ET AL.,

Defendants.

CECCIH, District Judge:

I. INTRODUCTION

This matter comes before the Court by way of motion to dismiss Plaintiffs Nora

Baklayan (“Baklayan”) and Talar Baklayan’s (“Plaintiff Wife”) (collectively “Plaintiffs”)

Complaint (the Complaint”). This motion was filed by Defendants Alfaro Ortiz and Stephen

Pringle (collectively the “Defendants”), pursuant to Federal Rule of Civil Procedure I 2(b)(6).

The Court has considered the submissions made in support of and in opposition to the instant

motion. No oral argument was heard. Fed. R. Civ. P. 78. For the foregoing reasons, Defendants’

motion to dismiss is granted. Counts Two through Seven of Plaintiffs’ claims are dismissed

without prej udice, and Count Eight is dismissed with prejudice. 1

The Court considers any new arguments not presented by the parties in their papers or at oral

argument to be waived. See Brenner v. Local 514, (Jailed J3hd. 0! Carpenters & Joiners, 927

F.2d 1283, 1298 (3d Cir. 1991) (“It is well established that failure to raise an issue in the district

court constitutes a waiver of the argument.”).

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IL FACTS AND PROCEDURAL HISTORY

Plaintiff Norav Baklayan is a naturalized U.S. citizen. (Compi. ¶ 5.) He is originally

from Lebanon. but entered the United States with his family when he was six years old in 1977.

(Compi. ¶ 6.) Mr. Baklayans wife, Talar Bakiavan is also a plaintiff in this matter. (Compi. ¶

9.)

Defendant Alfaro Ortiz is the Director of the Department of Corrections of Essex County.

New Jersey. (Compi. ¶ 10.) Plaintiffs assert that, as part of his job, Defendant Ortiz is charged

with the responsibilities of training and supervising Essex County correctional officers, and

administering and implementing Essex County policies, practices, and customs. (Compl. ¶ 11.)

I)efendant Ortiz is being sued in his individual capacity.

Defendant Stephen Pringle is the Associate Warden of Custody of the Department of

Corrections of Essex County. New Jersey. (Compl. ¶ 12.) Plaintiffs claim that Defendant

Pringle’s position requires him to oversee all programs and operations applicable to custody,

inmate management, and release at Essex County Correctional Facility. (Compl. ¶ 13.)

Defendant Pringle is being sued in his individual capacity.

The relevant arrest and detention began on January 7, 2010. at approximately 4 p.m.

(Compl. ¶ 21,) Baklayan was driving his vehicle on the New Jersey Garden State Parkway when

he was stopped by a New Jersey Highway Patrol Trooper for allegedly talking on a handheld cell

phone while driving. (Compl, ¶ 22.) The State Trooper ran a check on Baklayan’s driver’s

license and license plate. (Compi. ¶ 25.) The check revealed an outstanding warrant for

Bakiavan’ s arrest in the State of Missouri. (Compi. ¶ 26.) l3aklayan was then placed under arrest

and transported to the Bloomlield Police Station on the Garden State Parkway in Essex County,

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where he was detained for fingerprinting and photographs. (Compi. ¶ 35.) A few hours later,

Bakiavan was transferred to the Essex County Jail. (Compi. ¶ 34.) The Complaint alleges that

jail personnel did not make a note of Baklayan’s anti-inflammatory medication. (Compi. ¶ 36.)

The Complaint further alleges that Baklayan was denied his anti-inflammatory medication by a

con’ectional officer. and that he was forced to sleep on the floor because there were not enough

beds. (Compi. ¶ 40-48.)

The next day, on January 8. 2010, Baklayan’s New Jersey counsel telephoned the Essex

County Jail to provide notice of representation. (Compi. ¶ 55.) During the same conversation,

counsel advised jail personnel of Baklayan’ s citizenship status, and offered to present Baklayan’ s

valid U.S. Passport in person. (Compi. ¶ 57.) According to the Complaint, jail personnel

declined to view Baklayan’s passport. (Compi. ¶ 58.)

At 1:20 p.m. on January 8, 2010, the St. Louis County Police Department transmitted an

electronic message to the Essex County Jail, stating that the arrest warrant for Baklayan had been

recalled by the St. Louis County Court. (Compi. ¶ 59, Ex 1.) At about 2:30 p.m. on the same

day. the Office of the Essex County Prosecutor transmitted a facsimile advising the jail that the

warrant for Baklayan’s arrest had been recalled. (Compl. ¶ 60, Ex. 2.)

On January 9. 2010, counsel personally appeared at the Essex County Jail to request

Baklayan’s release, (Compl. ¶ 62.) Jail personnel advised counsel that the Department of

Homeland Security, Immigration and Customs Enforcement (“ICE”) had placed an immigration

hold on Baklavan and, therefore, he could not be released. (Compl. ‘. 63.) Counsel repeated his

statement that Baklayan was a naturalized U.S. Citizen, and that on account of his citizenship

status h. could not bL subject to am immiglatlon hold (Compl ‘ 66 ) Counsel also plesentLd

Baklayan’s valid and current U.S. passport. (Compl. ¶ 67.)

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On January 11. 2010, after four days of incarceration at the Essex County Jail, ICE sent a

facsimile to the jail stating that “a detainer will not be placed on [Bakiavan].” (Compi. ¶ 72.) On

that same day, Bakiavan was released. (Compi. ¶{ 73.)

On July 8, 2011, Plaintiffs filed a complaint in the United States District Court for the

District of New Jersey, alleging violations of the U.S. Constitution. the New Jersey Constitution,

the New Jersey Law Against Discrimination, and state common law, (Compl. ¶ 88, 97, 106, 109,

116, 127, 128.) The Complaint names additional defendants in this matter who are not included

in the present motion: the Department of Homeland Security, Immigration and Customs

Enforcement; Scott A. Weber, Field Office Director of the Immigration and Customs

Enforcement Office of Detention and Removal in Newark, New Jersey; Ladeon Francis,

Immigration Enforcement Agent at the Immigration and Customs Enforcement Office of

Detention and Removal in Newark. New Jersey; and John Doe, an unnamed law enforcement

agent at the Essex County Jail. (Compl. ¶ 1020.)2

III. STANDARD OF REVIEW

In deciding a motion to dismiss pursuant to Fed. R. Civ, P. 12(b)(6), a court is required to

accept as true all allegations in the complaint and to view all reasonable inferences that can be

drawn therefrom in the light most favorable to the plaintiff. See, e.g., Asheroft v. Jqbai, 556 U.S.

662. 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009); Bell All. Corp. v. Twoinb!y. 550 U.S.

544. 555. 127 5. Ct. 1955, 167 L. Ed. 2d 929 (2007); Oshiver v. Levin, Fishbein, Sec/ran &

Berman. 38 F.3d 1380, 1384 (3d Cir. 1994). To survive a motion to dismiss. a complaint must

state a plausible claim for relief. Jqbal, 129 S. Ct, at 1950. The complaint need not provide

2 Plaintiff also references the Essex County Jail as a defendant throughout the Complaint,

(Compi. ¶ 20, 75, 108-110, 113), but has failed to include the jail as a defendant in the case.

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detailed factual allegations. however, a plaintiffs obligation to provide the grounds of his

entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Be//At!. Coip.. 550 U.S. at 555. Thus. assuming that

the factual allegations in the Complaint are true, those “allegations must be enough to raise a

right to relief above a speculative level.” i’d.

IV. DISCUSSION

Plaintiffs’ Complaint includes claims under § 1981, § 1983, § 1985(3), the New Jersey

Civil Rights Act and the New Jersey Anti-Discrimination Act, as well as a claim under New

Jersey common law, Defendants Ortiz and Pringle move to dismiss Plaintiffs’ claims for failure

to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). (Ortiz Br. 4.) Defendants assert that the

Complaint fails to present allegations that they played an affirmative part in any alleged

misconduct sufficient to satisfy Ashcrofl v. Iqbal, 129 S. Ct. 1937. Moreover, Defendants assert

that government entities and supervisors cannot be held liable under the federal constitutional

claims, specifically, § 1983, solely on the theory of respondeat superior. They contend that in

order for liability to attach, there must be proof of personal involvement in the alleged

wrongdoings. (Ortiz Br. 5.) Defendants argue that the Complaint should be dismissed as it fails

to allege facts supporting the inference that Defendants had “personal involvement” in any

alleged misconduct. (Ortiz Br. 5.) Defendants also contend that Plaintiffs’ tort claims should be

dismissed for failure to file a Notice of Tort Claim. as required by the New Jersey Tort Claims

Act (NJTCA), N.J.S,A. § 59:8-8(b). 3(Ortiz Br, 3.) Defendants do not address each of Plaintiffs’

claims individually; rather they address their arguments to the Complaint in its entirety.

The NJTCA notice requirement applies only to Count Eight of the Complaint (Plaintiff Wi1’s

state common law loss of consortium claim). The procedural requirements of the New Jersey

Tort Claims Act, N.J.S.A. § 59:1-1, “[do] not apply to federal or state constitutional claims

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Finally, Defendants assert that the claims against Defendants Ortiz and Pringle should be

dismissed because the detention was legal. Defendants first argue that, since jail personnel

complied with the statutory and regulatory guidelines that govern ICE detainers, the detention

was legal. (Ortiz. R. Br. 2.) Section 287.7(d) of the Code of Federal Regulations directs an

agency complying with an ICE detainer request to “maintain custody of the alien for a period not

to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of

custody’ by the defendant.” Thus. Defendants argue, the detention was “within the federal rules.”

(Ortiz Br. 5.) Defendants further argue that there was no illegal conduct and no constitutional

violation because a 48 hour detention generally satisfies § 1983. (Ortiz Br. 5.) Because the Court

is relying on independent grounds to dismiss Plaintiffs’ motion, the Court will not make a

determination as to the legality of the ICE detention at this time.

A. Count Two—Violation of 42 U.S.C. § 1981

In Count Two of the Complaint, Plaintiffs assert that “Defendants’ actions constitute a

violation of the Civil Rights Act, 42 U.S.C. § 198l.” (Compi. ¶ 87.) To state a claim under §

1981, a plaintiff must demonstrate that: (1) he is a member of a racial minority; (2) the defendant

intended to discriminate against him on the basis of race; and (3) the discrimination concerned

one or more of the activities enumerated in § 1 981, including the right to make and enforce

contracts. Leuallen v. Pauisboro, No. 99-4353, 2001 U.S. Dist. LEXIS 22631 at *15 (D,N.J,

because a state may not abrogate an individual’s constitutional rights.” Kirkland v. Morgievich,

No 04 1651 2008 S Dist LEXIS 101472 at *28 (D N J Dec 15 2008) (citing Count

Concrete Corp. v. Roxbury. 442 F.3d 159, 174 (3d Cir. 2006) and Owens v. Fe/g/n, 394 N.J.

Super. 85, 86, 925 A,2d 106 (App. Div. 2007)). The NJTCA does not apply to statutory claims

under the New Jersey Civil Rights Act. Owens. 394 N.J. Super. at 97. Nor does the notice

requirement apply to claims under the New Jersey Law Against Discrimination. Fuchilici v

Layman, 109 N.J. 319, 337-38, 537 A,2d 652(1988).

Count One of the Complaint alleges violations of the Equal Protection and Due Process clauses

of the Constitution (Compi ‘ 84 ) Ihis claim is assLrted against Defendants lCI \\ eber and

Francis. not Ortiz and Pringle. Accordingly, it will not be addressed by the Court at this time.

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Dec. 5. 2001). Plaintiffs do not indicate which Defendants they are referring to, nor do they

identify which of Defendants’ actions violated § 1981. Plaintiffs offer nothing more than the

conclusorv statement that “defendants’ actions were motivated by racial animosity and by the

desire to injure, oppress and intimidate [Baklayan] because of his race, ethnicity, and/or national

origin.” (Compi. ¶ 88.) They have failed to allege support that Defendants Pringle and Ortiz had

a racial motive or were in any’ way aware of or involved in the decision to detain Baklayan

pursuant to the detainer. Without more, their allegation must fail as requiring further factual

enhancement. See Ashcrofl v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868

(2009) (citing Bell At!. Corp. v. Twombly, 550 U.S. 544, 557, 127 S. Ct. 1955, 167 L. Ed. 2d 929

(2007)). As such, this allegation is insufficient to support the plausible inference that Defendants

violated § 1981.

B. Count Three — Violation of 42 U.S.C. § 1985(3)

Plaintiffs next assert that Defendants conspired to violate Baklayan’s constitutional rights

in violation of § 1985(3). (Compi. ¶ 91.) To state a claim under § 1985(3). a plaintiff must show:

(1) a conspiracy; (2) motivated by a racial or class based

discriminatory animus designed to deprive, directly or indirectly,

any person or class of persons to the equal protection of the laws;

(3) an act in furtherance of the conspiracy; and (4) an injury to

person or property or the deprivation of any right or privilege of a

citizen of the United States.

Aside from its manifest vagueness, additional pleading deficiencies also plague Count Two.

First. Plaintiffs have structured Count Two as a cause of action under § 1981. (Compl. ¶ 87.) It

is well settled that § 1981 does not provide a private cause of action against state actors. .fett v.

Dallas Independent School District, 491 U S. 701, 109 5. Ci. 2 702, 105 L. Ed. 2d 598 (1 989;

McGovern v. Civ ofPhiladelphia, 554 F3d 114 (3d Cir, 2009,) C’parties asserting a violation of

Section 1981 by state actors must proceed through section 1983.”). Even assuming Plaintiffs are

proceeding through § 1983, which is mentioned numerous times elsewhere in the Complaint,

Plaintiffs have failed to present factual allegations sufficient to state a claim against Defendants

Ortiz and Pringle.

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cI’iiied Broth. OfCarpenters and Joiners v. Scott, 463 US. 825. 828-29. 103 S. Ct. 3352. 77 L.

Ed. 2d 1049 (1983), Once again, Plaintiffs fail to present any factual allegations that suggest the

existence of a conspiracy or agreement between Defendants. Plaintiffs also fail to allege any

facts that suggest a discriminatory animus on the part of Defendants. Plaintiffs merely state that

“[by] reason of their respective positions, status and functions, defendants Ortiz and Pringle’s

decision, made in concert, were acting [sic] de facto to deprive [Baklayan] of equal protection

under the law and his right to be free from unreasonable seizures, resulting in violation of his

constitutional rights.” (Compl. ¶ 91.) Such allegations, devoid of sufficient factual matter, are

not sufficient to satisfy the pleading standards. Accordingly, Count Three is dismissed for

failure to state a claim upon which relief can be granted.

C. Count Four — Violation of 42 U.S.C. § 1983 (False Imprisonment)

In Count Four of the Complaint, Plaintiffs allege that Defendants violated Baklayan’s

constitutional rights by subjecting him to false imprisonment in violation of 42 U.S.C. § 1983.

To state a claim under § 1983, a complaint must allege that the defendant had personal and

individual involvement in the alleged wrong. Jqbal, 129 5. Ct. 1937, at 1948 (‘Because vicarious

liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government

official defendant. though the official’s own individual actions, has violated the Constitution.”);

see also Arnold v. State ofNew Jersey. No. 03-3997, 2007 U.S. Dist. LEXIS 33982, (D.N.J.

May 9, 2007) (“The plaintiff must allege that the defendant had personal involvement in the

alleged wrongs. and liability cannot be predicated solely on the operation of respondent

superior.”) (citing Parrat v Taylor, 451 U.S. 527, 537. 101 S. Ct. 1908, 68 L. Ed, 2d 420, n.3

(1981)).

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Here, Plaintiffs merely assert that Defendants “exercised or acted in concert to exercise

force or the express or implied threat of force to restrain, detain or confine [Baklayan].” (Compi

¶ 101). Plaintiffs do not allege any additional facts that might be relevant to Defendants’

individual involvement in the alleged incident, such as whether Defendants were present during

Baklayan’s detention or whether they spoke with Baklayan or his counsel. Plaintiffs allegation,

offered without further factual delineation, is insufficient to support the inference that

Defendants participated in the alleged false imprisonment. See Iqbal, 129 S. Ct. at 1949

(quoting Twombly, 550 U.S. at 557).

A liberal reading of the Complaint could find that Plaintiffs are asserting a theory of

supervisory liability. 6The Third Circuit recognizes two forms ofsupervisory liability relevant to

this action. Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010) (citing A.M v.

Luzerne County Juvenile DeL Ctr., 372 F.3d 572, 586 (3d Cir. 2004)). First, as “policymakers,”

supervisors can be liable for constitutional violations if “with deliberate indifference to the

consequences, [they] established and maintained a policy, practice, or custom which directly

caused [the] constitutional harm.” A.M, 372 F.3d at 586 (quoting Stoneking v. Bradford Area

Sc/i. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). Supervisors can also be liable through “personal

direction or ... actual knowledge and acquiescence,” however, “allegations of participation or

actual knowledge and acquiescence. . . must be made with appropriate particularity.” Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). But see Davis v. Danberg, No. 11-265,2012

U.S. Dist. LEXIS 2167, *9 (D. Del. Jan 6, 2012) (noting that the Third Circuit has yet to rule on

whether Iqbal narrowed the standard for supervisory liability in § 1983 suits).

6Pltiffs offer brief and generalized descriptions of Defendants’ supervisory and management

responsibilities. (Compl. ¶ 11, 13.) In Count Four, Plaintiffs assert that Defendants “knew or

should have known they were detaining Baklayan without legal authority to do so.” (Compl. ¶ 104.)

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The only facts offered anywhere in the Complaint in support of a supervisory theory of

liability are the descriptions of Defendants’ jobs: Plaintiffs state that Defendant Ortiz was

‘charged with ultimate responsibility for the training and supervision of Essex County

correctional officers, and for the administration and implementation of the Essex County

Department of Corrections policies, practices, and/or customs,” and that Defendant Pringle was

“charged with overseeing all programs and operations applicable to custody, inmate management

and release from Essex County Correctional Facility.” (Compl. ¶fflJ 11-13.) It would be too great

a leap for the Court to infer from these cursory job descriptions that Defendants were somehow

aware of and acquiescent to the alleged misconduct, or that they were responsible for the policy

or procedure which resulted in the alleged misconduct and deliberately indifferent to its result,

and that they are therefore liable under § 1983. Certainly, Defendants’ respective positions make

it possible that they knew of Baklayan’s detention, but the Supreme Court has noted that, ‘where

well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,

the complaint has alleged but it has not shown that the pleader is entitled to relief.” Iqbai, 129 S.

Ct. at 1950 (citations omitted).

D. Count Five -Violation of 42 U.S.C. § 1983 (Failure to Supervise)

Count Five alleges that Defendants failed to prevent the alleged unconstitutional conduct

by ‘knowing1v, recklessly, or with gross negligence” failing to Instruct. supervise, control, and

discipline” their subordinates from: (I) unlawfully harassing Baklayan: (2) unlawfully

implementing an immigration hold on a U.S. citizen; (3) conspiring to violate l3aklayan’s rights;

and (4) otherwise depriving Baklavan of his rights. (Compl. ¶ 109.) As with Count Four,

Plaintiffs fail to allege any personal involvement in the alleged wrongdoing. See Rode, 845 F.2d

1195.

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As mentioned previously, a supervisor may be held liable under § 1983 when he or she

“with deliberate indifference to the consequences, established and maintained a policy, practice,

or custom which directly caused [the] constitutional harm,” A.M, 372 F.3d at 586 (citing

Stoneking, 992 F.2d at 725), or where the supervisor has knowledge of the incident and

acquiesces to it. Rode, 845 F.2d at 1207. Plaintiffs have yet to allege any facts suggesting that

Defendants knew about Baldayan’s predicament or that they established a policy or custom that

resulted in constitutional harms to Balclayan. Accordingly, Count Five is dismissed for failure to

state a claim upon which relief can be granted.

E. Count Six -Violations of the New Jersey Constitution and Civil Rights Act

In Count Six, Plaintiffs allege numerous violations of the New Jersey Constitution and

the New Jersey Civil Rights Act. (Compl. ¶ 116.) The Complaint states that a “de facto policy”

represented by “the actions and/or omissions of the defendants” caused these violations. (Id)

Count Six does not identify which Defendants it is referring to, nor does it provide anything

more than the conclusory allegation that “illegal, unconstitutional and discriminatory acts.

constituted acts of a de facto policy to discriminate, use unlawli.il force, falsely arrest and detain

Baldayan.” (Compl. ¶115.)

The New Jersey Civil Rights Act (NJCRA) provides a private right of action for claims

based on “any substantive rights, privileges or immunities secured by the Constitution or laws of

the United States, or any substantive rights, privileges or immunities secured by the Constitution

or laws of [New Jersey] State.” N.J.S.A. § 10:6-2 (2012). The NJCRA closely tracks the federal

civil rights statutes, and courts interpret the statute “in terms nearly identical to its federal

counterpart: Section 1983.” Chapman v. New Jersey, No. 08-4130, 2009 U.S. Dist. LEXIS

75720, 7 (D.N.J. Aug. 25, 2009).

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Both the NJCRA and § 1983 premise liability on personal involvement in the alleged

misconduct, and neither allow claims premised solely on respondeat superior. Didiano v, Balicki,

No. 10-4483. 2011 U.S. Dist. LEXIS 41785, *3l32 (D.N.J. Apr. 18, 2011) (ln order to state..

a claim against a supervisor for the actions of his or her subordinates under either § 1983 or the

NJCRA, a plaintiff must allege that the supervisor was involved personally, meaning through

personal direction or actual knowledge and acquiescence, in the wrongs alleged.”) (quoting

Gilmore v. Reilly. No. 09-5956, 2010 U.S. Dist. LEXIS 35058. *6 (D.NJ. Apr. 9, 2010) (internal

quotations omitted). Thus, to the extent that Plaintiffs have failed to provide sufficient factual

allegations to support their claims under § 1983, the same pleading deficiency warrants dismissal

of Plaintiffs’ NJCRA claims.

F. Count Seven -Violation of the New Jersey Law Against Discrimination

Count Seven appears to be asserting an equal protection claim, stating that ‘Defendants

policies and practices resulted in Baklayan being subjected to disparate treatment on the basis of

race, ethnicity, and/or national origin.” 7(Compl. ¶ 123.) This claim is brought under the New

Jersey Law Against Discrimination (LAD). N.J.S.A. § 10:5-1 to -42. Both municipal police

departments and individual officers are “public accommodations” within the meaning of LAD.

Ptaszynski v, Uwaneme, 371 NJ, Super. 333, 347, 853 A,2d 288 (App. Div. 2004); Jobes v

Mooresioiin Tiip.. No. 03-4016, 2006 U.S. Dist. LEX1S 78918. *30 (DiNi. Oct. 19, 2006).

Plaintiffs making an equal protection claim under the LAD must present facts alleging that the

individual Defendants’ conduct had a discriminatory effect and that the conduct was motivated

by a discriminatory animus. Bradley v. Uiiited States, 299 F.3d 197, 205 (3d Cir. 2002);

Anderson v. County of Salem, 2010 U.S. Dist. LEX1S 79119, *34 (D.N.J. Aug. 5,2010) (using

Once again, the Complaint fails to identify which I)elndant it is referring to.

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the equal protection standard to analyze a LAD claim for discriminatory arrest); Chisoim v.

Manimon, 97 F, Supp. 2d 615, 621 (D.N.J. 2000) (courts use analogous federal

antidiscrimination statutes to interpret LAD), rev’d on other grounds, 275 F.2d 315 (3d Cir.

2001); Rojas v. City ofNew Brunswick, Civ. No, 04-3195, 2008 U.S. Dist. LEXIS 57974. *9192

(D.N,J. June 4, 2008) (noting that legal standards for a claim under the Equal Protection clause

and the LAD are the same). To establish a discriminatory effect, a plaintiff must allege sufficient

facts to support a finding that he or she was ‘a member of a protected class and that [he or she]

was treated differently from situated individuals in an unprotected class.” Anderson v. County of

Salem, No 09-4718, 2010 U.S. Dist. LEXIS 79119, *34 (D.N.J. Aug. 5, 2010) (citing Bradley v.

United States, 299 F.3d 197, 206 (3d Cir. 2002)).

In the instant case, Baklayan alleges that he was detained pursuant to the ICE

immigration hold, and that his detention was due to “his race, ethnicity and/or national origin.”

Baklayan further alleges that he was “subjected to disparate treatment on the basis of race,

ethnicity and/or national origin.” It is not entirely clear from the Complaint whether Baklayan is

alleging that the ICE detainer itself was lodged with a discriminatory animus, or whether his

detention — in accordance with the ICE detainer and despite presentation of a U.S. passport — was

conducted with a discriminatory animus. Under either claim, however, Baklayan has failed to

allege a sufficient factual basis to support a valid LAD claim against Defendants. Baklayan does

not identify any causal connection between his alleged discriminatory detention and either

Defendant, Baklayan has failed to provide any facts that would allow the court to infer that

either of the Defendants had a discriminatory animus. Baklayan does not identify his protected

class, nor does he provide any specific factual allegations to support the plausible inference that

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similarly situated persons who are not members of his protected class have been treated

differently. This claim is thus dismissed.

G. Count Eight - Loss of Consortium

Defendants argue that the Plaintiff Wife’s loss of consortium claim must be dismissed

because she failed to comply with the notice requirement of the New Jersey Tort Claims Act.

(Ortiz Br. 3.) The Act requires plaintiffs pursuing a claim “relating to a cause of action for death

or for injury or damages to person or to property,” absent extraordinary circumstances, to present

a notice of claim to the defendant “not later than the ninetieth day after accrual of the cause of

action.” N.J.S.A. § 59:8-8, 59:8-9. All common law tort claims, including both negligence and

intentional claims, are subjected to this notice requirement. Velez v. City ofJersey City, 180 N.J.

284, 294, 850 A,2d 1238 (2004). Loss of consortium, as a state common law claim, is subject to

this notice requirement. See, e.g., Badalamente v. Monmouth Cy. Prosecutor ‘s OffIce, No. 08-

250 1, 2011 U.S. Dist. LEXIS 53457, *30 (D.N.J. May 17, 2011)). The accrual date under the

NJTCA is generally the date of the “accident or incident that gave rise to the injury.” Beauchamp

v Amedio, 164 N.J. 111, 123, 751 A.2d 1047 (2000).

Plaintiffs offer very few factual allegations in support of the Plaintiff Wife’s loss of

consortium claim. However, from the Complaint it appears that the Plaintiff Wife’s claim

accrued when Baklayan’s alleged unconstitutional detention commenced on January 8. 2010.

This is the date that, according to the complaint, the St. Louis warrant was recalled, and County

Jail began holding Baklayan pursuant to the ICE detainer. Pursuant to the New Jersey Tort

Claims Act, the Plaintiff Wife was thus required to present a notice of clam by April 8. 2010.

Her claim is therefore barred by the NJTCA notice requirement. N.J,S.A. § 59:8-8(a).

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V. CONCLUSION

For the preceding reasons, Defendants’ motion to dismiss is granted. and Counts Two

through Seven are dismissed without prejudice. To the extent the deficiencies in such claims can

be cured by way of amendment. Plaintiff is granted thirty days to reinstate this matter and file an

Amended Complaint solely for purposes of amending such claims. Count Eight. the Plaintiff

Wife’s claim for loss of consortium, is barred h the New Jersey Tort Claims Act, and is thus not

amenable to cure by amendment. Count Eight is therefore dismissed with prejudice. An

appropriate Order accompanies this Opinion. To the extent Plaintiff seeks to add any additional

claims, a formal motion to amend should be filed in accordance with all applicable local and

Federal rules, as well as any scheduling order which may be in place.

DATED: April 5, 2012

______________________

CLAIRE C. CECC11I, U.S.D.J.

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