Harris v. New Jersey Department of Human Services et al

Second MOTION to Dismiss for Lack of Jurisdiction

D.N.J.November 21, 2016

1 CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex P.O. Box 112 25 Market Street Trenton, New Jersey 08625-0112 Attorney for Defendants New Jersey Department of Human Services, Trenton State Psychiatric Hospital, and Mary Beth Candelori-Longo By: Joel Clymer Deputy Attorney General (609) 292-6252 Joel.Clymer@lps.state.nj.us IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF TRENTON MARQUIS HARRIS, Plaintiff, v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES; TRENTON STATE PSYCHIATRIC HOSPITAL; MARY BETH CANDELORI-LONGO INDIVIDUALLY AND AS DIRECTOR OF HUMAN RESOURCES AT TRENTON PSYCHIATRIC HOSPITAL (FICTITIOUS NAMES REPRESENTING UNKNOWN INDIVIDUALS; AND ABC CORPORATIONS 1-10 (FICTITIOUS NAMES REPRESENTING UNKNOWN ENTITIES), Defendants. Hon. Freda L. Wolfson, U.S.D.J. Hon. Tonianne J. Bongiovanni, U.S.M.J. Civil Action No. 3:16-cv-03931 (FLW-TJB) NOTICE OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT AGAINST DEFENDANTS DHS AND TRENTON PYSCHIATRIC HOSPITAL, AND FOR PARTIAL DISMISSAL AGAINST DEFENDANT MARY BETH CANDELORI-LONGO TO: Clerk, United States District Court District of New Jersey Ashton E. Thomas, Esq. Case 3:16-cv-03931-FLW-TJB Document 14 Filed 11/21/16 Page 1 of 3 PageID: 164 2 Attorney at Law 1209 East Grant Street Suite 201 Elizabeth, NJ 07201 PLEASE TAKE NOTICE that on December 19, 2016, or at such other time as may please the Court, the undersigned Christopher S. Porrino, Attorney General of New Jersey, by Joel Clymer, Deputy Attorney General, on behalf of the Defendants, New Jersey Department of Human Services, Trenton State Psychiatric Hospital, and Mary Beth Candelori-Longo shall move before the Honorable Freda L. Wolfson, U.S.D.J., in the United States District Court, District of New Jersey, at the Clarkson S. Fisher Federal Building & United States Courthouse, 402 East State Street, Trenton, New Jersey 08608, for an Order granting the Defendants’ motion (a) to dismiss Counts 3 and 4 of Plaintiff’s First Amended Complaint against all Defendants, (b) to dismiss Counts 1 and 2 against Defendants New Jersey Department of Human Services and Trenton State Psychiatric Hospital, and (c) to dismiss Counts 1 and 2 against Defendant Mary Beth Candelori-Longo in her individual capacity; and (d) to limit Counts 1 and 2 against Defendant Mary Beth Candelori-Longo in her official capacity to prospective injunctive relief. PLEASE TAKE FURTHER NOTICE that the relief sought regarding Counts 3 and 4 of the First Amended Complaint is the subject of a separate motion for reconsideration addressing Counts 4 and 5 of the Plaintiff’s initial Complaint. PLEASE TAKE FURTHER NOTICE that the Defendants will rely upon the Brief and Certification of Joel Clymer, D.A.G., filed herewith in support of the Motion. Pursuant to Fed.R.Civ.P. 78, the Defendants respectfully request that the Court rule upon the papers submitted without requiring appearance of counsel unless the motion is opposed. Case 3:16-cv-03931-FLW-TJB Document 14 Filed 11/21/16 Page 2 of 3 PageID: 165 3 A proposed Form of Order is attached hereto. CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY Attorney for Defendants By: s/Joel Clymer Joel Clymer Deputy Attorney General Dated: November 21, 2016 Case 3:16-cv-03931-FLW-TJB Document 14 Filed 11/21/16 Page 3 of 3 PageID: 166 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF TRENTON MARQUIS HARRIS, Plaintiff, v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES; TRENTON STATE PSYCHIATRIC HOSPITAL; MARY BETH CANDELORI-LONGO INDIVIDUALLY AND AS DIRECTOR OF HUMAN RESOURCES AT TRENTON PSYCHIATRIC HOSPITAL (FICTITIOUS NAMES REPRESENTING UNKNOWN INDIVIDUALS; AND ABC CORPORATIONS 1-10 (FICTITIOUS NAMES REPRESENTING UNKNOWN ENTITIES), Defendants. Hon. Freda L. Wolfson, U.S.D.J. Hon. Tonianne J. Bongiovanni, U.S.M.J. Civil Action No. 3:16-cv-03931 (FLW-TJB) _________________________________________________________________________________ DEFENDANTS’ BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT, PURSUANT TO FED. R. CIV. P. 12(b)(1) and 12(b)(6) _______________________________________________________________________________ CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex P.O. Box 112 25 Market Street Trenton, New Jersey 08625-0112 Attorney for Defendants New Jersey Department of Human Services, Trenton State Psychiatric Hospital and Mary Beth Candelori-Longo By: Joel Clymer Deputy Attorney General (609) 292-6252 Joel.Clymer@lps.state.nj.us Case 3:16-cv-03931-FLW-TJB Document 14-1 Filed 11/21/16 Page 1 of 11 PageID: 167 TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................................................... i PRELIMINARY STATEMENT .................................................................................................... 1 PROCEDURAL HISTORY AND STATEMENT OF FACTS...................................................... 3 LEGAL ARGUMENT .................................................................................................................... 4 I. COUNTS 1 AND 2 OF PLAINTIFF’S FIRST AMENDED COMPLAINT AGAINST DHS AND THE HOSPITAL SHOULD BE DISMISSED BECAUSE THE STATE IS IMMUNE FROM SUIT UNDER THE ADA IN STATE AND FEDEAL COURT ................................................................................................................4 II. COUNTS 1 AND 2 OF PLAINTIFF’S FIRST AMENDED COMPLAINT AGAINST MARY BETH CANDLORI-LONGO IN HER INDIVIDUAL CAPACITY AND FOR MONEY DAMAGES SHOULD BE DISMISSED .....................5 III. COUNTS 3 AND 4 OF PLAINTIFF’S FIRST AMENDED COMPLAINT SEEKING PROSPECTIVE INJUNCTIVE RELIEF AGAINST STATE DEFENDANTS UNDER THE LAD SHOULD BE DISMISSED BECAUSE STATE DEFENDANTS ARE ENTITLED TO IMMUNITY ............................................6 CONCLUSION ............................................................................................................................... 8 Case 3:16-cv-03931-FLW-TJB Document 14-1 Filed 11/21/16 Page 2 of 11 PageID: 168 i TABLE OF AUTHORITIES State Cases Allen v. Fauver, 167 N.J. 69, 73-77 (2001) .................................................................................... 4 Royster v. New Jersey State Police, 439 N.J. Super. 554 (App. Div. 2015) .................................. 4 State Statutes N.J.S.A. 10:5-1, et seq. ................................................................................................................... 6 N.J.S.A. 10:5-5(e) ........................................................................................................................... 6 Federal Cases Alden v. Maine, 527 U.S. 706,754 (1999) ...................................................................................... 4 Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) .............................................................. 6 Balsam v. Sec’y of N.J., 607 Fed. Appx. 177, 183 (3d Cir. 2015) ................................................. 7 Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 374 (2001) ......................... 4 Clements v. Hous. Auth., 532 F. Supp.2d 700, 705 n.1 (D.N.J. 2005)........................................... 5 Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir. 2002) ........................................................ 5 Frew v. Hawkins, 540 U.S. 431, 433 (2004) .................................................................................. 7 Raygor v. Regents of Univ. of Minn., 534 U.S. 533 (2002) ........................................................... 6 Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077-78 (3d Cir. 1996) ................ 5 Federal Statutes FED. R. CIV. P. 12(b)(1) ................................................................................................................ 1 FED. R. CIV. P. 12(b)(6) ................................................................................................................ 1 Case 3:16-cv-03931-FLW-TJB Document 14-1 Filed 11/21/16 Page 3 of 11 PageID: 169 1 PRELIMINARY STATEMENT Defendants, New Jersey Department of Human Services (“DHS”), Trenton State Psychiatric Hospital (“the Hospital”), and Mary Beth Candelori-Longo (“Candelori-Longo”) (hereinafter referred to collectively as “State Defendants”) move to Dismiss Plaintiff’s First Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), as follows: (a) to dismiss Counts 3 and 4 (LAD claims) of Plaintiff’s First Amended Complaint against all Defendants; (b) to dismiss Counts 1 and 2 (ADA claims) against Defendants New Jersey Department of Human Services and Trenton Psychiatric Hospital; (c) to dismiss Counts 1 and 2 (ADA claims) against Defendant Mary Beth Candelori- Longo in her individual capacity; and (d) to limit Counts 1 and 2 (ADA claims) against Defendant Mary Beth Candelori- Longo in her official capacity to prospective injunctive relief. The portions of the motion addressed to the LAD claims (Law Against Discrimination) are the subject of a separate motion for reconsideration of this court’s November 7, 2016 Order addressing the LAD claims stated in the initial Complaint. If that motion is granted and the LAD claims are dismissed in their entirety, the same ruling should apply to the LAD claims stated in the First Amended Complaint. On June 30, 2016, Plaintiff filed a Complaint alleging disability discrimination in violation of the Americans with Disabilities Act ( Pl. Compl. ¶ 4); retaliation in violation of the ADA (Pl. Compl. ¶ 6); intentional infliction of emotional distress (“IIED”) (Pl. Compl. ¶ 8); Case 3:16-cv-03931-FLW-TJB Document 14-1 Filed 11/21/16 Page 4 of 11 PageID: 170 2 disability discrimination in violation of the New Jersey Law Against Discrimination (“LAD”) (Pl. Compl. ¶ 9); and retaliation in violation of the LAD (Pl. Compl. ¶ 11). State Defendants filed a Motion to Dismiss the LAD claims on immunity grounds, and the tort claim for failure of Plaintiff to file a Notice of Tort Claim. This court dismissed the tort claim, and the LAD claims to the extent that they sought money damages. (Ex. A, Opinion & Order, pp. 3-5). However, although this court correctly found that the State Defendants are immune from suit in federal court under the LAD, it incorrectly found that Plaintiff’s claims for prospective injunctive relief under the LAD were cognizable. (Ex. A, Opinion & Order, p. 5). Plaintiff then filed a First Amended Complaint on November 10, 2016 conforming to the Court’s November 7, 2016 Order and Opinion. (Ex. B, Pl. 1st Amend. Compl.). State Defendants have separately moved for reconsideration of the ruling that Plaintiff can continue to seek prospective injunctive relief under the LAD. If that relief is granted, the LAD claims in the First Amended Complaint should be dismissed with prejudice as well. State Defendants now move to Dismiss Counts 1 and 2 of Plaintiff’s First Amended Complaint entirely against Defendants DHS and the Hospital, and partially against Defendant, Candelori-Longo with prejudice. Defendant, Candelori-Longo is a state official and Counts 1 and 2 should be dismissed against her in her individual capacity and as they seek money damages. The court should limit the ADA claim to prospective injunctive relief against Defendant Candelori-Longo in her official capacity only. Case 3:16-cv-03931-FLW-TJB Document 14-1 Filed 11/21/16 Page 5 of 11 PageID: 171 3 PROCEDURAL HISTORY AND STATEMENT OF FACTS 1 Plaintiff was terminated from DHS on June 15, 2015. (Pl. Amend. Compl. ¶ 26). Plaintiff filed a First Amended Complaint on November 10, 2016. (Ex. B, Pl. 1st Amend. Compl.). The Complaint alleges the following claims:  Count 1 – Disability Discrimination in violation of the Americans with Disabilities Act;  Count 2 – Retaliation in violation of the Americans with Disabilities Act;  Count 3 – Disability Discrimination in violation of the New Jersey Law Against Discrimination for prospective injunctive relief only (reinstatement);  Count 4 – Retaliation in violation of the New Jersey Law Against Discrimination for prospective injunctive relief only (reinstatement) (Ex. B, Pl. 1st Amend. Compl.¶¶21-59). State Defendants respectfully request that this Court grant their motion and dismiss Counts 1 and 2 of Plaintiff’s First Amended Complaint against Defendants, DHS and the Hospital with prejudice, and against Defendant, Candelori-Longo in her individual capacity and as to Plaintiff’s claims for money damages, with prejudice. This Court should limit the ADA claim to prospective injunctive relief against Defendant Candelori-Longo in her official capacity only. State Defendants also move to dismiss Counts 3 and 4 against all Defendants. 1 Because the procedural history and relevant facts are closely related, they have been consolidated for the convenience of the court. Case 3:16-cv-03931-FLW-TJB Document 14-1 Filed 11/21/16 Page 6 of 11 PageID: 172 4 LEGAL ARGUMENT POINT I COUNTS 1 AND 2 OF PLAINTIFF’S FIRST AMENDED COMPLAINT AGAINST DHS AND THE HOSPITAL SHOULD BE DISMISSED BECAUSE THE STATE IS IMMUNE FROM SUIT UNDER THE ADA IN STATE AND FEDEAL COURT.___ Counts 1 and 2 of Plaintiff’s First Amended Complaint should be dismissed because DHS and the Hospital are immune from suit under the ADA in State and Federal Court. The Supreme Court of the United States has held that the Eleventh Amendment bars employment- related suits against a State under the ADA. Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 374 (2001); Koslow v. Pennsylvania, 302 F.3d 161, 165 (3d Cir. 2002); see also Royster v. New Jersey State Police, 439 N.J. Super. 554 (App. Div. 2015), certif. granted 233 N.J. 161 (2015) (to review defendants’ entitlement to immunity under ADA and whether defense first raised in motion for JNOV had been waived). It is also well-established that State immunity to suit under a federal law is equally valid whether the suit is brought in Federal or State court. See Alden v. Maine, 527 U.S. 706,754 (1999) (holding that state courts may not “assume jurisdiction that could not be vested in the federal courts and forms no part of the judicial power of the United States”); see also Allen v. Fauver, 167 N.J. 69, 73-77 (2001) (citing Alden and holding that the State of New Jersey and its Department of Corrections are immune from suit in both federal and state court under the Fair Labor Standards Act). DHS and the Hospital are State entities and Plaintiff has brought suit against them under the ADA in Federal Court. Therefore, this Court lacks subject matter jurisdiction over Plaintiff’s claims. For those reasons, Counts 1 and 2 of Plaintiff’s First Amended Complaint against DHS and the Hospital should be dismissed with prejudice. Case 3:16-cv-03931-FLW-TJB Document 14-1 Filed 11/21/16 Page 7 of 11 PageID: 173 5 POINT II COUNTS 1 AND 2 OF PLAINTIFF’S FIRST AMENDED COMPLAINT AGAINST MARY BETH CANDLORI-LONGO IN HER INDIVIDUAL CAPACITY AND AS THEY SEEK MONEY DAMAGES SHOULD BE DISMISSED.______________________ All claims under the ADA against Defendant, Candelori-Longo in her individual capacity should be dismissed as a matter of law, because neither Title VII nor the ADA provides for individual liability. See Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077-78 (3d Cir. 1996) (“Congress did not intend to hold individual employees liable under Title VII”). See also Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir. 2002) ("individuals are not liable under Titles I and II of the ADA, which prohibit discrimination by employers and public entities respectively")(citations omitted); Clements v. Hous. Auth., 532 F. Supp.2d 700, 705 n.1 (D.N.J. 2005) (citing Emerson and dismissing plaintiff's disability discrimination and retaliation claims brought under ADA). However, a plaintiff may sue a “state official” in their official capacity under the ADA for prospective injunctive relief in the form of reinstatement. Koslow, 302 F.3d at 179. Therefore, Defendant Candelori-Longo can only be sued in her official capacity and for prospective injunctive relief only. For that reason, Counts 1 and 2 of Plaintiff’s First Amended Complaint against Defendant, Candelori-Longo in her individual capacity, and in so far AS Plaintiff seeks monetary damages, should be dismissed with prejudice. Furthermore, the ADA claim should be limited to prospective injunctive relief against Defendant Candelori-Longo in her official capacity only. Case 3:16-cv-03931-FLW-TJB Document 14-1 Filed 11/21/16 Page 8 of 11 PageID: 174 6 POINT III COUNTS 3 AND 4 OF PLAINTIFF’S FIRST AMENDED COMPLAINT SEEKING PROSPECTIVE INJUNCTIVE RELIEF AGAINST STATE DEFENDANTS UNDER THE LAD SHOULD BE DISMISSED BECAUSE STATE DEFENDANTS ARE ENTITLED TO IMMUNITY._________________________ This Point is the subject of a separate motion for reconsideration of this court’s November 7, 2016 Order addressing the LAD claims stated in the initial Complaint. If that motion is granted and the LAD claims are dismissed in their entirety, the same ruling should apply to the LAD claims stated in the First Amended Complaint. Counts 3 and 4 (disability discrimination and retaliation) of Plaintiff’s First Amended Complaint allege violations of the LAD and seek prospective injunctive relief against State Defendants in the form of reinstatement. N.J.S.A. 10:5-1, et seq. However, the State is immune from suit in Federal Court under a State law unless the particular statute waives jurisdictional immunity. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985) (“to constitute a waiver of Eleventh Amendment immunity, [a state statute] must specify the state’s intention to subject itself to suit in federal court”). Here, the LAD only authorizes suit in New Jersey’s Superior Court. N.J.S.A. 10:5-5(e). Therefore, a federal court may not assert jurisdiction under the LAD. See Garcia v. The Richard Stockton College of New Jersey, 210 F. Supp. 2d 545, 550 (D.N.J. 2002) (holding that District Court of New Jersey does not have jurisdiction to hear supplemental-state law claims under the LAD because the State has not consented to suit in federal court) (citing Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 540 (2002) ("[Section] 1367(a)'s grant of jurisdiction does not extend to claims against nonconsenting state defendants."); Pennhurst v. Halderman, 465 U.S. 89, 118 (1984) (a plaintiff cannot seek prospective injunctive relief against a defendant in state court for violation of the LAD). Case 3:16-cv-03931-FLW-TJB Document 14-1 Filed 11/21/16 Page 9 of 11 PageID: 175 7 In Koslow, the Court found that a plaintiff could seek prospective injunctive relief against a State Official for violation of the ADA in the form of reinstatement. Id. at 179. However, a plaintiff can only seek prospective injunctive relief against a State official in Federal Court for violating a Federal law, such as the ADA, and not a State law, such as the NJLAD. Pennhurst, 465 U.S. at 106; see also Frew v. Hawkins, 540 U.S. 431, 433 (2004); Balsam v. Sec’y of N.J., 607 Fed. Appx. 177, 183 (3d Cir. 2015). The Supreme Court in Pennhurst held: When a plaintiff alleges that a state official has violated state law, the entire basis for the doctrine of Young and Edelman disappears. A federal court's grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment. We conclude that Young and Edelman are inapplicable in a suit against state officials on the basis of state law. [Pennhurst, 465 U.S. at 106.] Here, Plaintiff’s alleged failure to accommodate (Count 3) and retaliation (Count 4) claims, in his November 10, 2016 First Amended Complaint against State Defendants, are State law claims. (Ex. B, Pl. Compl. ¶¶ 21-59). Plaintiff specifically amended Counts 3 and 4 to seek prospective injunctive relief under the LAD. (Ibid.). However, State Defendants are completely immune from suit under the LAD in Federal Court. Pennhurst, 465 U.S. at 106. For the foregoing reasons, Counts 3 and 4 of Plaintiff’s First Amended Complaint should be dismissed. Case 3:16-cv-03931-FLW-TJB Document 14-1 Filed 11/21/16 Page 10 of 11 PageID: 176 8 CONCLUSION For the foregoing reasons, it is respectfully requested that this Court grant State Defendants’ motion and dismiss: (a) Counts 3 and 4 (LAD claims) of Plaintiff’s First Amended Complaint against all Defendants; (b) Counts 1 and 2 (ADA claims) against Defendants New Jersey Department of Human Services and Trenton Psychiatric Hospital; (c) Counts 1 and 2 (ADA claims) against Defendant Mary Beth Candelori-Longo in her individual capacity; (d) and limit Counts 1 and 2 (ADA claims) against Defendant Mary Beth Candelori- Longo in her official capacity to prospective injunctive relief. Respectfully submitted, CHRISTPOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY By: /s/ Joel Clymer _____________ Joel Clymer Deputy Attorney General Dated: November 21, 2016 Case 3:16-cv-03931-FLW-TJB Document 14-1 Filed 11/21/16 Page 11 of 11 PageID: 177 1 CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex P.O. Box 112 25 Market Street Trenton, New Jersey 08625-0112 Attorney for Defendants New Jersey Department of Human Services, Trenton State Psychiatric Hospital, Mary Beth Candelori-Longo By: Joel Clymer Deputy Attorney General (609) 292-6252 Joel.Clymer@lps.state.nj.us IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF TRENTON MARQUIS HARRIS, Plaintiff, v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES; TRENTON STATE PSYCHIATRIC HOSPITAL; MARY BETH CANDELORI-LONGO INDIVIDUALLY AND AS DIRECTOR OF HUMAN RESOURCES AT TRENTON PSYCHIATRIC HOSPITAL (FICTITIOUS NAMES REPRESENTING UNKNOWN INDIVIDUALS; AND ABC CORPORATIONS 1-10 (FICTITIOUS NAMES REPRESENTING UNKNOWN ENTITIES), Defendants. Hon. Freda L. Wolfson, U.S.D.J. Hon. Tonianne J. Bongiovanni, U.S.M.J. Civil Action No. 3:16-cv-03931 (FLW-TJB) ATTORNEY CERTIFICATION JOEL CLYMER, of full age, hereby certifies as follows: Case 3:16-cv-03931-FLW-TJB Document 14-2 Filed 11/21/16 Page 1 of 2 PageID: 178 2 1. I am licensed to practice law in the State of New Jersey and admitted to practice in the United States District Court for the District of New Jersey. I am employed as a Deputy Attorney General of the State of New Jersey and represent the Defendants, New Jersey Department of Human Services, Trenton State Psychiatric Hospital, and Mary Beth Candelori-Longo in the above-captioned matter. I am therefore fully familiar with the facts to which I now certify. 2. I submit this Certification in support of State Defendants’ Motion to Dismiss Counts 1 and 2 against Defendants, DHS and Trenton State Psychiatric Hospital in their entirety and against Defendant, Mary Beth Candelori-Longo in her individual capacity and in so far as Plaintiff seeks money damages, and Counts 3 and 4 against State Defendants collectively, of Plaintiff’s First Amended Complaint, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). 3. Attached hereto as Exhibit “A” is a true and correct copy of the Complaint filed by Plaintiff in this matter on or about June 30, 2015. 4. Attached hereto as Exhibit “B” is a true and correct copy of the Court’s November 7, 2016 Order and Opinion. 5. Attached hereto as Exhibit “C” is a true and correct copy of the First Amended Complaint filed by Plaintiff on or about November 10, 2016. I certify that the foregoing statements by me are true. I understand that if any of the foregoing statements is willfully false, I am subject to punishment. /s/Joel Clymer Joel Clymer Dated: November 21, 2016 Case 3:16-cv-03931-FLW-TJB Document 14-2 Filed 11/21/16 Page 2 of 2 PageID: 179 EXHIBIT A Case 3:16-cv-03931-FLW-TJB Document 14-3 Filed 11/21/16 Page 1 of 21 PageID: 180 1 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ____________________________________ MARQUIS HARRIS, : : Plaintiff, : : Civ. Action No. 16-3931(FLW) v. : : ORDER DEP’T OF HUMAN SERVICES, et al., : : Defendants. : ____________________________________: THIS MATTER having been opened to the Court by Joel Clymer, Esq., counsel for Defendants New Jersey Department of Human Services (“DHS”), Trenton Psychiatric Hospital (the “Hospital”), and Mary Beth Candelori-Longo (collectively, “Defendants”), on a Motion to Dismiss Counts Three, Four, and Five of Plaintiff Marquis Harris’ (“Plaintiff”) Complaint; it appearing that Plaintiff, through his counsel, Ashton E. Thomas, Esq., opposes the Motion; the Court having considered the parties’ submissions in connection with the Motion, pursuant to Fed. R. Civ. P. 78, the Court makes the following findings: 1. Plaintiff filed the instant employment discrimination suit against Defendants for, inter alia, failing to accommodate her disability in violation of the American with Disabilities Act (“ADA”) (Count I) and New Jersey Law Against Discrimination (“NJLAD”) (Count IV); retaliation in violation of the ADA (Count II) and NJLAD (Count V); and intentional infliction of emotional distress (Count III). Case 3:16-cv-03931-FLW-TJB Document 11 Filed 11/07/16 Page 1 of 5 PageID: 90Case 3:16-cv-039 1-FLW-TJB Document 14-3 il /21/ 2 f 21 PageID: 181 2 2. Defendants move to dismiss Count III, i.e., intentional infliction of emotional distress (“IIED”), based on Plaintiff’s failure to file a tort claim notice within 90 days of the accrual of the claim pursuant to New Jersey Tort Claims Act,1 see N.J.S.A. 59:8-3 (requiring plaintiff to file a notice of tort claim with the public entity against which plaintiff intends to sue); N.J.S.A. 59:8-8 (same notice requirement applies to public employees); County Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 174 (3d Cir. 2006) (citing N.J.S.A. 59:8-3 and- 8; Moon v. Warren Haven Nursing Home, 182 N.J. 507, 509 (2005)). Indeed, Plaintiff concedes that he never filed a Notice of Tort Claim with any of the defendants. See Plf. Opp. Br., p. 3 (“the Plaintiff failed to file a Notice of Claim”). 3. However, Plaintiff argues that his claim for intentional infliction of emotional distress is a continuing tort, and therefore, his claim should be dismissed without prejudice, presumably, so that he can serve a notice of claim. Plaintiff’s argument wholly lacks merit because his argument relates only to the statute of limitations, and it is not a defense or an exception to his failure to file a notice of claim under N.J.S.A. 59:8-8. Regardless, Plaintiff’s allegations underlying his IIED claim, as pled, is not a continuing tort. Plaintiff solely bases his IIED claim on an alleged letter sent to him by his 1 When Plaintiff filed her opposition, Defendant Candelori-Longo was not represented by counsel. Subsequently, defense counsel, who is representing DHS and the Hospital, entered an appearance on behalf of Candelori-Longo on August 23, 2016. Defendants’ reply is submitted to also address the claims against Candelori- Longo. Case 3:16-cv-03931-FLW-TJB Document 11 Filed 11/07/16 Page 2 of 5 PageID: 91Case 3:16-cv-039 1-FLW-TJB Document 14-3 il /21/ 3 f 21 PageID: 82 3 supervisor, wherein the supervisor informed Plaintiff of his termination. See Compl.,¶ 43. Plaintiff alleges that the letter was sent with the intent to cause emotional distress. Id. However, under the continuing violation doctrine, “when a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations periods.” Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001) (internal quotation marks and citation omitted). Here, the act of sending a termination letter to Plaintiff — regardless whether that act could be construed as outrageous conduct — clearly cannot be considered as a continuing tort, since Plaintiff has not alleged any other conduct by his supervisor that would form a continuing practice as a basis for Plaintiff’s IIED claim. But, even if it could be construed as such, Plaintiff remains obligated to file a notice of claim. While the 90-day period has run, the Court, nevertheless, dismisses Plaintiff’s IIED claim without prejudice, because Plaintiff may request to file a late notice of claim.2 4. As to Plaintiff’s NJLAD claims, i.e., Counts IV and V, Defendants argue that the claims are barred by Eleventh Amendment immunity. Indeed, the State of New Jersey has not waived its jurisdictional immunity under the NJLAD. 2 I note that even if the 90-day period to file a notice of claim has run, Plaintiff may “in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby.” N.J.S.A. 59:8-9. The Court does not comment on whether Plaintiff may indeed be permitted to file a late notice of claim under that provision. Case 3:16-cv-03931-FLW-TJB Document 11 Filed 11/07/16 Page 3 of 5 PageID: 92Case 3:16-cv-039 1-FLW-TJB Document 14-3 il /21/ 4 f 21 PageID: 183 4 See Garcia v. Richard Stockton College, 210 F. Supp. 2d 545, 550 (D.N.J. 2002) ("New Jersey has not stated 'by the most express language' that it is open to private suits under the NJLAD in federal court"); Rich v. New Jersey, 2015 U.S. Dist. LEXIS 61683, at *18-19 (D.N.J. May 12, 2015). And, DHS, as a state agency, is entitled to the same sovereign immunity protection as the state itself. See Coles v. New Jersey Dep't of Human Servs., 2014 U.S. Dist. LEXIS 72413, at *16-17 (D.N.J. May 28, 2014) (finding that DHS is a fully integrated and state controlled agency and that any judgment against it would be paid from the New Jersey State Treasury); Christy v. Pennsylvania Tpk. Comm'n, 54 F.3d 1140, 1144 (3d Cir. 1995). 5. Similarly, defendant Trenton Psychiatric Hospital is also entitled to Eleventh Amendment immunity as it is a state hospital operated by DHS. See Dep't of Envtl. Protection v. Gloucester Envtl. Mgmt. Servs., 923 F. Supp. 651, 660 (D.N.J. 1995) (considering factors set forth in Fitchik v. N.J. Transit Rail Ops., Inc., 873 F.2d 655 (3d Cir. 1989), and concluding that Trenton Psychiatric Hospital is an alter ego of New Jersey for Eleventh Amendment purposes); Brandt v. Trenton Psychiatric Hospital, 2010 U.S. Dist. LEXIS 135589, at *8 (D.N.J. Dec. 22, 2010) (same). 6. Defendant Candelori-Longo, an employee of the Hospital, is also entitled to Eleventh Amendment immunity because it appears Plaintiff has sued Ms. Candelori-Longo in her official capacity. See Small v. Lanigan, 2016 U.S. Case 3:16-cv-03931-FLW-TJB Document 11 Filed 11/07/16 Page 4 of 5 PageID: 93Case 3:16-cv-039 1-FLW-TJB Document 14-3 il /21/ 5 f 21 PageID: 184 5 App. LEXIS 13182, at *4 (3d Cir. Jul. 19, 2016); Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 254 (3d Cir. 2010). 7. Accordingly, to the extent Counts IV and V seek monetary damages against Defendants, those claims are dismissed. However, Plaintiff also seeks prospective injunctive relief in the form of reinstatement in Counts IV and V; those claims will not be dismissed. See Koslow v. Pennsylvania, 302 F.3d 161, 179 (3d Cir. 2002). IT IS on this 7th day of November, 2016, ORDERED that Defendants’ motion to dismiss is GRANTED in part and DENIED in part as follows: ORDERED that Count III, intentional infliction of emotional distress, is dismissed without prejudice; ORDERED that to the extent Counts IV and V, i.e., NJLAD discrimination and retaliation, respectively, seek monetary damages against Defendants, those claims are dismissed; ORDERED that Defendants’ motion to dismiss is denied as to Counts IV and V to the extent those claims seek reinstatement. /s/ Freda L. Wolfson Freda L. Wolfson U.S. District Judge Case 3:16-cv-03931-FLW-TJB Document 11 Filed 11/07/16 Page 5 of 5 PageID: 94Case 3:16-cv-039 1-FLW-TJB Document 14-3 il /21/ 6 f 21 PageID: 185 EXHIBIT B Case 3:16-cv-03931-FLW-TJB Document 14-3 Filed 11/21/16 Page 7 of 21 PageID: 186 Case 3:16-cv-03931-FLW-TJB Document 12 Filed 11/10/16 Page 1 of 12 PagelD: 95 Ashton E. Thomas, Esq. 1209 East Grand Street, Suite 201 Elizabeth, NJ 07201 Tel: 908-289-3640 Fax:908-353-8889 AT 3665 Counsel for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY MARQUIS HARRIS Plaintiffs v. Case No. 16-3931(FLW) FIRST AMENDED COMPLAINT AND JURY TRIAL DEMAND NEW JERSEY DEPARTMENT OF HUMAN SERVICES; TRENTON STATE PSYCHIATRIC HOSPITAL; MARY BETH CANDELORI- LONGO INDIVIDUALLY AND AS DIRECTOR OF HUMAN RESOURCES AT TRENTON PSYCHIATRIC HOSPITAL (FICTITIOUS NAMES REPRESENTING UNKNOWN INDIVIDUALS; AND ABC CORPORt1TIONS 1-10 (FICTITIOUS NAMES .REPRESENTING UNKNOWN ENTITIES) Defendants. The plaintiff alleges: INTKODUCTION 1. This action is brought pursuant to the Americans With Disabilities Act "ADA", 42 U.S.C.A. §§ 12101 et seq. JURISDICTION AND VENUE 2. The jurisdiction of this court is invoked pursuant to 28 U.S.C.A. § 1343(4) to secure Case 3:16-cv-03931-FLW-TJB Document 14-3 Filed 11/21/16 Page 8 of 21 PageID: 187 Case 3:16-cv-03931-FLW-TJB Document 12 Filed 11/10/16 Page 2 of 12 PagelD: 96 protection and redress deprivation oi' rights secured by federal law which prohibit discrimination against employees because of their disability. 3. This Court has subject matter jurisdiction over Plaintiff Marquis Harris' New Jersey Law Against Discrimination "NLAD" claims pursuant to 28 U.S.C.§ 1367. 4. Venue is proper in this District under 28 U.S.C. 1391 (b) (2) because a substantial part of the events and omissions giving rise to Plaintiff's' claims occurred in this District. THE PARTIES 5. Since October 28, 2006, Plaintiff Han•is was afull-time employee with the Defendant New Jersey Department of Human Services hereinafter known as "NJDHS." 6. Plaintiff Harris served as a Senior Building Maintenance Worker, when he was removed from his employment duties by the defendants NJDHS, Trenton Psychiatric Hospital, and Mary Beth Candelori-Longo on or about July 2015. 7. Plaintiff Harris is an adult individual who is a resident of Linden, Union County, New Jersey. 8. At all relevant times herein, Plaintiff Harris was an "employee" of defendant NJDHS within the meaning of 42 U.S.C. §§ 2000e et seq. 9. Defendants NJDHS and Trenton Psychiatric Hospital hereinafter known as "TPH" are employers within the meaning of the Act, employs more than 25 employees, and is located within the jurisdiction of this court. 10. At all times relevant herein, Defendant Candelori-Longo has been employed by Defendant TPH, most recently as its Director of Human Resources. 2 Case 3:16-cv-03931-FLW-TJB Document 14-3 Filed 11/21/16 Page 9 of 21 PageID: 188 Case 3:16-cv-03931-FLW-TJB Document 12 Filed 11/10/16 Page 3 of 12 PagelD: 97 11. As Plaintiff Harris' supervisor, Defendant Candelori-Longo had the power to make personnel decisions regarding plaintiff's employment. 12. At all times relevant to the events described herein, Defendants, JOHN DOES 1-10, AND ABC CORPORATION 1-10, had a legal duty to protect the plaintiffs rights under the ADA and NJLAD, and the New Jersey failed to protect the plaintiff. 13. The plaintiff has exhausted all administrative remedies in order to bring this action. He filed a charge of discrimination with the Equal Emplo}nnent Opportunity Commission. The Commission issued plaintiff a right to sue letter on April 12, 2016. 14. Said right to sue was rescinded on June 28, 2016. However, the U.S. Department of Justice issued a new right to sue letter on August 15, 2016. BACKGROUND 15. On or about the 6'~' day of February, 2015, Plaintiff Harris slipped at work. Striking his head, Plaintiff Harris suffered a traumatic brain injury. 16. Plaintiff Harris was tz~eated at medical facilities pt•ovided by the defendants NJDHS and TPII. 17. On or about the 8`~' day of April, 2015, Plaintiff Harris returned to work on restricted duty on the medical advice of Dr. Eric Freeman. 18. On or about the 1 S` day of April, 2015, Defendants NJDHS, TPH, and Candelori-Longo knew that Plaintiff Harris needed an accommodation as he was disabled within the definition of the ADA. 19. Defendants NJDHS, TPH, and Candelori-Longo failed to maintain a current job 3 Case 3:16-cv-03931-FLW-TJB Document 14-3 Filed 11/21/16 Page 10 of 21 PageID: 189 Case 3:16-cv-03931-FLW-TJB Document 12 Filed 11/10/16 Page 4 of 12 PagelD: 98 description identifying the essential job functions for the Plaintiff Harris' position. In fact, his job description was last updated on 4/7/2001. 20. There was no interactive process established by Defendants NJDHS, TPH, and Candelori-Longo to assure compliance with the ADA. COUNTI VIOLATION OF THE AMERICANS WITH DISABILITIES ACT 42 U.S.C.A. X12111 et al. 21. Paragraphs 1 through 20 are realleged and incorporated by reference. 22. Plaintiff' Harris had a disability within the meaning of the ADA in that he had post-concussive disorder with residual posttraumatic headaches and cognitive deficits. 23. Plaintiff Harris is a "qualified individual" able to perform the essential functions of "Senior Building Maintenance Worker" with a reasonable accommodation to "light duty" recommended by his treating doctor. 24. When Plaintiff I-Iarris returned to work on or about April 8, 2015, the Defendants NJDHS, TPH, and Candelori-Longo directed him to perform his regular duties despite knowing of his disability and his need for "light duty." 25. Between the May 11, 2015 and May 12, 2105, there were communications between Melissa Johnson and Kimberly Bower, employees of the defendants, where there was an acknowledgment that the plaintiff needed an accommodation for a known disability and that Plaintiff Harris could be accommodated. 26. The defendants have failed to undertake any good faith efforts, in consultation with the Plaintiff Harris to identify and make reasonable accommodation with Plaintiff Harris. Case 3:16-cv-03931-FLW-TJB Document 14-3 Filed 11/21/16 Page 11 of 21 PageID: 190 Case 3:16-cv-03931-FLW-TJB Document 12 Filed 11/10/16 Page 5 of 12 PagelD : 99 27. On or about the 15 h̀ day of June, 2015, the defendants terminated Plaintiff Harris for alleged unauthorized absences. 28. In failing to make reasonable accommodations to Plaintiff Harris' physical disability and in terminating Plaintiff Harris, who suffered a disability as defined in the ADA, defendants acted with malice and with reckless indifference to the federally protected rights of Plaintiff Harris. 29. As a direct and proximate result of defendants' discrimination on the basis of disability, Plaintiff has suffered lost wages and benefits and lost employment opportunities. 30. Defendants' failure to make reasonable accommodation along with their decision to terminate Plaintiff Harris has caused, continues to cause, and will cause Plaintiff Harris to suffer substantial damages for pecuniary losses; mental anguish, loss of enjoyment of life, and other nonpecuniary losses. WHEREFORE, the plaintiff respectfully prays that this court advance this case on the docket, order a hearing at the earliest practicable date, and upon a hearing to: a. Find and hold that Plaintiff Harris has suffered from Defendants acts of discrimination on the basis of disability; b. Order the Plaintiff be awarded the back pay he would have earned, with related monetary benefits and interest thereon, had he been reinstated to his position as a "Senior Building Maintenance Worker." c. Order that defendants reasonably accommodate Plaintiff Harris if such accommodation is now needed. d. Award Plaintiff Harris compensatory damages in an amount to be determined Case 3:16-cv-03931-FLW-TJB Document 14-3 Filed 11/21/16 Page 12 of 21 PageID: 191 Case 3:16-cv-03931-FLW-TJB Document 12 Filed 11/10/16 P age 6 of 12 PagelD: 100 at the trial of this matter. e. Award Plaintiff Harris punitive damages in an amount to be determ ined at trial of this matter; f. Enjoin the defendants from any further prohibited discrimination against Plaintiff Harris; g. toward Plaintiff Harris his attorney fees, including litigation expenses, an d the costs of this action; and h. Grant such other and further relief as maybe just and proper. COUNT II RETALIATION IN VIOLATION OF THE ADA 31. Paragraphs 1 through 30 are realleged and incorporated by reference. 32. On or about October, 2015, Plaintiff Harris filed a complaint with th e EEOC alleging a violation of the ADA. This is a protected activity. 33. At all times Plaintiff Harris cooperated with the investigation with th e expectation that his claim might be resolved. 34. On or about the 25 x̀' day of February, 2016, the defendants submitted a Position Statement to the EEOC. 35. On or about the 7`" day of March, 2016, Plaintiff Harris in good faith submitted an Answer to defendants' Position Statement. 36. On the 16`" day of March, 2016, Defendant Candelori-Longo sent a lett er directly to the home of Plaintiff Harris. Defendant Candelori-Longo wrote, "This is to notify you that your Case 3:16-cv-03931-FLW-TJB Document 14-3 Filed 11/21/16 Page 13 of 21 PageID: 192 Case 3:16-cv-03931-FLW-TJB Document 12 Filed 11/10/16 Page 7 of 12 Page lD: 101 services as a Senior Building Maintenance Worker with Trenton Psychiatric Hospital are no longer required." 37. Defendant Candelori-Longo continued, "Therefore, you have been separated effective January 29, 2016." 38. Defendant Candelori-Longo concluded, " As required, please ensure that you have returned your ID badge, assigned keys and all other assigned equipment to your supervisor ." 39. Plaintiff Harris was subjected to a materially adverse action in that the conduct of Defendant Candelori-Longo might have discouraged a reasonable worker from protecting right s secured by the ADA. 40. There is a causal connection in that only 9 days lapsed between Plaintiff Harris' Answer and Defendant Candelori-Longo's conduct. WHEREFORE, the plaintiff respectfully prays that this court advance this case on the docket, order a hearing at the earliest practicable date, and upon a hearing to: a. Find and Bold that Plaintiff Harris has suffered from Defendants acts of discrimination on the basis of disability; b. Order the Plaintiff be awarded the back pay he would have earned, with related monetary benefits and interest thereon, had he been reinstated to his position as a "Senior Building Maintenance Worker." c. Order• that defendants reasonably accommodate Plaintiff Harris if said accommodation is needed. d. Award Plaintiff Harris compensatory damages in an amount to be determined at the trial of this matter. 7 Case 3:16-cv-03931-FLW-TJB Document 14-3 Filed 11/21/16 Page 14 of 21 PageID: 193 Case 3:16-cv-03931-FLW-TJB Document 12 Filed 11/10/16 Page 8 of 12 PagelD: 102 e. Award Plaintiff Harris punitive damages in an amount to be determined at trial of this matter; f. Enjoin the defendants from any further prohibited discrimination against Plaintiff Harris; g. Award Plaintiff Harris his attorney fees, including litigation expenses, and the costs of this action; and h. Grant such other and further relief as maybe just and proper. COUNT III NEW JERSEY LAW AGAINST DISCRIMINATION: N.J.S. 10-5-12(a) 41. Paragraphs 1 through 40 are realleged and incorporated by reference. 42. Plaintiff Harris had a disability within the meaning of the NJLAD in that he had post-concussive disorder with residual posttraumatic headaches and cognitive deficits. 43. Plaintiff Harris is a "qualified individual" able to perform the essential functions of "Senior Building Maintenance Worker" with a reasonable accommodation to "light duty" recommended by his treating doctor. 44. When plaintiff returned to work on or about Apri18, 2015, the defendants directed him to perform his regular duties despite knowing of his disability and his need for "light duty." 45. Between the May 11, 2015 and May 12, 2105, there were communications between Melissa Johnson and Kimberly Bower, employees of the defendant, where there was an acknowledgment that the plaintiff needed an accommodation for a known disability and that he could be accommodated. 46. No employee, official, or• supervisor employed by the defendant provided Plaintiff Case 3:16-cv-03931-FLW-TJB Document 14-3 Filed 11/21/16 Page 15 of 21 PageID: 194 Case 3:16-cv-03931-FLW-TJB Document 12 Filed 11/10/16 Page 9 of 12 PagelD: 103 Harris with a reasonable accommodation pursuant to the NJLAD. 47. On or about the I S`~' day of June, 2015, the defendants terminated Plaintiff Harris for alleged unauthorized absences. 48. Plaintiff Harris alleges that his disability played a motivating part in defendants' decision not to accommodate his disability. 49. Plaintiff Harris alleges that his disability played a motivating part in defendants' decision to terminate him. Wherefore, the plaintiff respectfully prays that this court advance this case on the docket , order a hearing at the earliest practicable date, and upon a hearing to: a. Find and hold that Plaintiff Harris has suffered from Defendants acts of discrimination on the basis of disability; b. Order the Plaintiff be reinstated to his position as a "Senior Building Maintenance Worker;" c. Order that defendants reasonably accommodate Plaintiff Harris' disability; d. enjoin the defendants from any further prohibited discrimination against Plaintiff Harris; e. Grant such other• and further relief as maybe just and proper. COUNT IV NEW JERSEY LAW AGAINST DISCRIMINATION: N.J.S. 10-5-12(d) 50. Paragraphs 1 through 49 are realleged and incorporated by reference. 51. On or about October, 2015, Plaintiff Harris filed a complaint with the EEOC alleging E Case 3:16-cv-03931-FLW-TJB Document 14-3 Filed 11/21/16 Page 16 of 21 PageID: 195 Case 3:16-Cv-03931-FLW-TJB Document 12 Filed 11/10/16 Page 10 of 12 PagelD: 104 a violation of the ADA. This is a protected activity. 52. At all times Plaintiff Harris cooperated with the investigation with the expectation that his claim might be resolved. 53. On or about the 25t" day of February, 2016, the defendants submitted a Position Statement to the EEOC. 54. On or about the 7 h̀ day of March, 2016, Plaintiff Harris in good faith submitted an Answer to defendants' Position Statement. 55.On the 16t" day of March, 2016, Defendant Mary Beth Candelori-Longo sent a letter directly to the home of Plaintiff Harris. Defendant Candclot•i-Longo wrote, "This is to notify you that your services as a Senior Building Maintenance Worker with Trenton Rsychiatric Hospital are no longer required." 56. Defendant Candelori-Longo continued, "Therefore, you have been separated effective January 29, 2016." 57. Defendant Candelori-Longo concluded, " As required, please ensure that you have returned your ID badge, assigned keys and all other assigned equipment to your supervisor." 58. Plaintiff Harris was subjected to a materially adverse action in that the conduct of Defendant Candelori-Longo might have discouraged a reasonable worker from protecting rights secured by the NJLAD. 59. There is a causal connection in that only 9 days lapsed between Plaintiff Harris' Answer and Defendant Candelori-Longo's conduct. Wherefore, the plaintiff respectfully prays that this court advance this case on the docket, order a hearing at the earliest practicable date, and upon a hearing to: ~i~ Case 3:16-cv-03931-FLW-TJB Document 14-3 Filed 11/21/16 Page 17 of 21 PageID: 196 Case 3:16-cv-03931-FLW-TJB Document 12 Filed 11/10/16 Page 11 of 12 PagelD: 105 a. Find and hold that Plaintiff Harris has suffered from Defendants acts of discrimination on the basis ot'disability; b. Order the Plaintiff be reinstated to his position as a "Senior Building Maintenance Worker;" c. Order that defendants reasonably accommodate Plaintiff Harris' disability; d. Enjoin the defendants from any further prohibited discrimination against Plaintiff Harris; e. Grant such other and further relief as maybe just and proper. DEMAND FOR JURY TRIAL Plaintiffs demand a trial by jury as to all issues so triable. Dated: November 9, 2016 THE LAW OFFICE OF ASHTON E. THOMAS By: /s/Ashton E. Thomas 1209 East Grand Street, Suite 2013 Elizabeth, New Jersey 07201 Tel: 908-289-3640 Fax: 908-353-8889 CERTIFICATION I hereby certify that this matter in controversy is not the subject of any other court, arbitration or administrative proceeding. /s/ Ashton E. Thomas, Esq. Case 3:16-cv-03931-FLW-TJB Document 14-3 Filed 11/21/16 Page 18 of 21 PageID: 197 Case 3:16-cv-03931-FLW-TJB Document 12 Filed 11/10/16 Page 12 of 12 PagelD: 106 Case 3:16-cv-03931-FLW-TJB Document 14-3 Filed 11/21/16 Page 19 of 21 PageID: 198 Case 3:16-cv-03931-FLW-TJB Document 12-1 Filed 11/10/16 Page 1 of 2 PagelD: 107 Ashton E. Thomas, Lsq. 1209 East Grand Street, Suite 201 Elizabeth, NJ 07201 Tel: 908-289-3640 Fax: 908-353-8889 AT 3665 Counsel for Plaintiff MARQUIS HARRIS vs. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Case No. 3:16-cv-03931 (FLW-TJB) Plaintiffs, CERTIFICATE OF SERVICE NEW JERSEY DEPARTMENT OF HUMAN SERVICES, ET AL. Defendants. I, Ashton E. Thomas, Esquire, of full age, hereby certify as follows: 1. I am an attorney-at-law of the State of New Jersey, and I am an attorney representing the Plaintiff Marquis Harris. 2. I certify that on this 10th day of November, 2U 16 I caused to be served via ECF the following documents on counsel of record: A. First Amended Complaint conforming to an Order entered on November 7, 2016; and B. Certificate of Service. Case 3:16-cv-03931-FLW-TJB Document 14-3 Filed 11/21/16 Page 20 of 21 PageID: 199 Case 3:16-cv-03931-FLW-TJB Document 12-1 Filed 11/10/16 Page 2 of 2 PagelD: 108 /s/Ashton E. Thomas 1209 East Grand Street, Suite 201 Elizabeth, New Jersey 07201 Tel: 908-289-3640 Fax:908-353-8889 Counsel for Plaintiff Dated: Novcinber 10, 2016 Case 3:16-cv-03931-FLW-TJB Document 14-3 Filed 11/21/16 Page 21 of 21 PageID: 200 1 CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex P.O. Box 112 25 Market Street Trenton, New Jersey 08625-0112 Attorney for Defendants New Jersey Department of Human Services, Trenton State Psychiatric Hospital, Mary Beth Candelori-Longo By: Joel Clymer Deputy Attorney General (609) 292-6252 Joel.Clymer@lps.state.nj.us IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF TRENTON MARQUIS HARRIS, Plaintiff, v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES; TRENTON STATE PSYCHIATRIC HOSPITAL; MARY BETH CANDELORI-LONGO INDIVIDUALLY AS DIRECTOR OF HUMAN RESOURCES AT TRENTON PSYCHIATRIC HOSPITAL (FICTITIOUS NAMES REPRESENTING UNKNOWN INDIVIDUALS; AND ABC CORPORATIONS 1-10 (FICTITIOUS NAMES REPRESENTING UNKNOWN ENTITIES), Defendants. Hon. Freda L. Wolfson, U.S.D.J. Hon. Tonianne J. Bongiovanni, U.S.M.J. Civil Action No. 3:16-cv-03931 (FLW-TJB) CERTIFICATION OF SERVICE I hereby certify that the Notice of Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint, supporting Brief, Certification of Counsel and proposed form of Order were caused to be Case 3:16-cv-03931-FLW-TJB Document 14-4 Filed 11/21/16 Page 1 of 2 PageID: 201 2 filed via electronic filing with a hard copy of same being sent regular mail to all counsel of record and to the Honorable Freda L. Wolfson, U.S.D.J. on this date. Respectfully Submitted, By: /s/ Joel Clymer Joel Clymer Deputy Attorney General DATED: November 21, 2016 Case 3:16-cv-03931-FLW-TJB Document 14-4 Filed 11/21/16 Page 2 of 2 PageID: 202 1 CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex P.O. Box 112 25 Market Street Trenton, New Jersey 08625-0112 Attorney for Defendants New Jersey Department of Human Services, Trenton State Psychiatric Hospital, Mary Beth Candelori-Longo By: Joel Clymer Deputy Attorney General (609) 292-6252 Joel.Clymer@lps.state.nj.us IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF TRENTON MARQUIS HARRIS, Plaintiff, v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES; TRENTON STATE PSYCHIATRIC HOSPITAL; MARY BETH CANDELORI-LONGO INDIVIDUALLY AND AS DIRECTOR OF HUMAN RESOURCES AT TRENTON PSYCHIATRIC HOSPITAL (FICTITIOUS NAMES REPRESENTING UNKNOWN INDIVIDUALS; AND ABC CORPORATIONS 1-10 (FICTITIOUS NAMES REPRESENTING UNKNOWN ENTITIES), Defendants. Hon. Freda L. Wolfson, U.S.D.J. Hon. Tonianne J. Bongiovanni, U.S.M.J. Civil Action No. 3:16-cv-03931 (FLW-TJB) ORDER This matter having come before the Court on a Motion of Christopher S. Porrino, Attorney General of New Jersey, by Joel Clymer, Deputy Attorney General appearing on behalf Case 3:16-cv-03931-FLW-TJB Document 14-5 Filed 11/21/16 Page 1 of 3 PageID: 203 2 of the Defendants, New Jersey Department of Human Services, Trenton State Psychiatric Hospital, and Mary Beth Candelori-Longo in Lieu of an Answer pursuant to Fed.R.Civ.P. 12(b)(1) and/or (6) (a), for a Motion to Dismiss Counts 1 and 2 against Defendants, DHS and Trenton State Psychiatric Hospital in their entirety, against Defendant, Mary Beth Candelori- Longo in her individual capacity and in so far as they seek money damages, and Counts 3 and 4 against State Defendants collectively, of Plaintiff’s First Amended Complaint, and the Court having considered the papers submitted herein and for good cause shown; IT IS on this day of , 2016; ORDERED that the State Defendants’ Motion to Dismiss Counts 1 and 2 against Defendants, DHS and Trenton State Psychiatric Hospital in their entirety is GRANTED, and those respective Counts of Plaintiff’s First Amended Complaint are DISMISSED with prejudice. IT IS FURTHER ORDERED that the State Defendants’ Motion to Dismiss Counts 1 and 2 against Defendant, Mary Beth Candelori-Longo in her individual capacity and in so far as they seek money damages is GRANTED, and those respective Counts of Plaintiff’s First Amended Complaint are DISMISSED with prejudice. IT IS FURTHER ORDERED that Counts 1 and 2 of Plaintiff’s First Amended Complaint are limited to prospective injunctive relief against Defendant, Mary Beth Candelori- Longo in her official capacity. Case 3:16-cv-03931-FLW-TJB Document 14-5 Filed 11/21/16 Page 2 of 3 PageID: 204 3 IT IS FURTHER ORDERED that State Defendants’ Motion to Dismiss Counts 3 and 4 against State Defendants collectively is GRANTED, and those respective Counts of Plaintiff’s First Amended Complaint are DISMISSED. _______________________________ Honorable Freda L. Wolfson, U.S.D.J. This motion was _____ opposed; _____ not opposed. Case 3:16-cv-03931-FLW-TJB Document 14-5 Filed 11/21/16 Page 3 of 3 PageID: 205