On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil No. 93-01096).
Before: Greenberg and Garth, Circuit Judges, and Robreno, District Judge*fn*
GREENBERG, Circuit Judge.
Appellants John A. Ferraro and Dorothy Ferraro, who are husband and wife, appeal from an order dated August 23, 1993, and entered on August 31, 1993, dismissing under Fed. R. Civ. P. 12(b)(6) their claims against the appellees, the City of Long Branch, New Jersey, and certain of its officials, brought pursuant to 42 U.S.C. § 1983, and remanding the balance of the case to the Superior Court of New Jersey, Law Division, Monmouth County. As a matter of convenience we refer to John A. Ferraro as the appellant inasmuch as Dorothy Ferraro is a party only because she claims a loss of consortium.
Insofar as material to the section 1983 count, Ferraro in his Superior Court complaint alleged that since November 20, 1979, he has been a career civil service employee of the City of Long Branch with the classified job title of Superintendent of Parks and Public Property. He further alleged that the duties of that position are essentially of a managerial, supervisory, and planning nature, but that the appellees nevertheless directed him "to perform such jobs as garbage pick up, shoveling beach sand, and other physical labor under the supervision of [his] former subordinates . . . ." Ferraro claimed that the appellees' action deprived him of his rights, privileges, and immunities under New Jersey laws and regulations and "subjected [him] to the deprivation of a legally protected property right in his employment secured by the Constitution and laws of the United States and the State of New Jersey without due process of law in violation of those Constitutions and the statutes in such cases made and provided."
The complaint alleged that the appellees engaged in the foregoing wrongful conduct on and before December 28, 1990. While the complaint does not indicate precisely what happened on December 28, 1990, in his brief Ferraro indicates that he "collapsed [with a heart attack] on the job while shoveling snow on the steps of City Hall," and is still under treatment and has "never returned to work." Brief at 5. In deciding this case we will assume that Ferraro can prove these allegations and present evidence that his work assignment contributed to his collapse and illness. The complaint also included three state law counts for what Ferraro called "tortious interference with pursuit of lawful employment" and for violations of the New Jersey Administrative Code. Notably, however, Ferraro's complaint did not assert that the appellees' conduct constructively discharged him, and thus he did not allege, and even in his brief on this appeal, does not claim that he is no longer a Long Branch employee. In fact, he acknowledges that he still is the Superintendent of Parks and Public Property.
The appellees removed the matter to the district court under 28 U.S.C. § 1441 on the ground that it had original jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3). They then served a motion to dismiss under Rule 12(b)(6) "for failure to state a claim upon which relief can be granted, on the grounds of qualified immunity."
The district court granted the appellees' motion in an oral opinion on August 23, 1993. The court recited that it could grant the motion only if, after accepting the well-pleaded allegations in the complaint and viewing them in the light most favorable to Ferraro, he could prove no set of facts entitling him to relief. The court then observed that it was "well established that government officials performing discretionary functions enjoy qualified immunity from civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." The court next indicated that if a plaintiff's allegations "fail to state a constitutional violation at all, the court cannot find that the constitutional rights asserted . . . were clearly established at the time the defendants acted."
The district court went on to indicate that a showing that a defendant has violated a state statute does not in itself establish liability. It also said that a federal court is "'not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies,'" quoting Bishop v. Wood, 426 U.S. 341, 349, 96 S. Ct. 2074, 2080, 48 L. Ed. 2d 684 (1976), and that "'disputes over overtime, over work assignments, over lunch and coffee breaks do not implicate the great objectives of the 14th Amendment,'" quoting Brown v. Brienen, 722 F.2d 360, 365 (7th Cir. 1983) (emphasis added). The court recognized that Ferraro asserted the defendants acted with malice in forcing him to shovel snow and sand, and thus caused him to suffer a heart attack, but it held, citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982), that these "bare allegations of malice" did not overcome the appellees' claim of immunity. Ultimately, the court dismissed the claims against the individual appellees "for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) on the grounds of qualified immunity" and the claims against Long Branch itself because Ferraro had not asserted a claim on which relief could be granted. The court then remanded the balance of the case to the Superior Court.
Ferraro has filed a timely appeal. We have jurisdiction under 28 U.S.C. § 1291, and the district court had removal federal question jurisdiction. We exercise plenary review.
Ferraro defines the rather limited scope of his claim by acknowledging that he "was neither deprived of his job nor his salary and benefits" and accordingly conceding that he was not discharged, directly or constructively. Brief at 16. Rather, he contends that "he was deprived of the rights, duties and privileges of [his] job," brief at 16, because the "case does not involve mere work assignments, hours or other personnel decisions. It involves the duties which are the essence of [his] job title." Brief at 19. The district court rejected Ferraro's claim inasmuch as it found that he had not demonstrated that he had a right ...