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Robert L. Gary, Jr. v. State of New Jersey Department of Consumer Affairs Office of Consumer Protection

September 22, 2011


The opinion of the court was delivered by: Juan R. Sanchez, J.


Defendant Roger Hines asks this Court to dismiss pro se Plaintiff Robert L. Gary, Jr.'s Amended Complaint. Gary brings claims against Hines and others alleging violations of his constitutional rights.*fn1 For the reasons set forth below, the Court will grant Hines's Motion to Dismiss.


This case arises from Gary's dealings with United Credit Adjusters, Inc. (United Credit). Sometime before November 2007, Gary hired United Credit, a credit repair and credit counseling company, to fix his credit, and paid United Credit $1,049. United Credit, however, did not provide Gary with credit repair services. On November 16, 2007, Gary submitted a complaint about United Credit to the Office of the New Jersey Attorney General. On October 14, 2008, after receiving multiple complaints from other consumers, the New Jersey Attorney General filed suit against United Credit for violating the New Jersey Consumer Fraud Act by requiring advance payment for credit services and failing to provide such services.

On March 9, 2009, Hines, a division investigator for the New Jersey Department of Consumer Affairs, contacted Gary in response to Gary's United Credit complaint. Hines told Gary about the Attorney General's case against United Credit and directed Gary to fill out a questionnaire providing more information about his experience with United Credit. Hines also indicated Gary may be eligible for restitution from United Credit. Gary returned the questionnaire on March 22, 2009. Gary did not speak to Hines again until June 2, 2009, when he called Hines to inquire into the status of the case against United Credit and asked why he was not called as a witness. Gary also requested the case's docket number, but Hines told him he did not have the docket number.

On July 28, 2009, the New Jersey court entered a final consent judgment requiring United Credit to pay restitution to a group of injured consumers. Gary was not included in this group. Hines advised Gary that because United Credit could not make restitution to all injured consumers, Gary would not receive restitution from the consent judgment. He further advised Gary to contact the Federal Trade Commission (FTC) to pursue a claim for restitution, which Gary did. On February 24, 2009, after receiving numerous complaints from consumers regarding United Credit's fraudulent business practices, the FTC filed suit in the United States District Court for the District of New Jersey against United Credit seeking injunctive relief to stop United Credit's fraudulent activity and equitable relief to force return of its fraudulently procured profits.

On October 27, 2010, Gary filed his first Complaint and, on January 31, 2011, filed an Amended Complaint. In his Amended Complaint, Gary brings six claims against Hines, alleging Hines violated (1) the Civil Rights Act of 1866, 42 U.S.C. § 1981; (2) the Civil Rights Act of 1871, 42 U.S.C. § 1983; (3) the Civil Rights Act of 1861, 42 U.S.C. § 1985(3); (4) the Civil Rights Act of 1871, 42 U.S.C. § 1986; (5) 42 U.S.C. § 1982; and (6) the Civil Rights Act of 1964, 42 U.S.C. § 2000d by violating Gary's First, Fifth, Seventh, Thirteenth, and Fourteenth Amendment rights. Gary seeks injunctive and equitable relief and $100 million in damages. Hines asks this Court to dismiss Gary's Amended Complaint because Gary has failed to state a claim for violations of his statutory and constitutional rights.


To survive a motion to dismiss brought pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft,129 S. Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff "need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (internal quotation marks and citation omitted). The court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Id. The court then determines whether a plaintiff has "nudge[d] [his or her] claims across the line from conceivable to plausible." Phillips v. Cnty. of Allegheny, 515 F.3d 24, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 570). Where, as here, the plaintiff is proceeding pro se, "the court has an obligation to construe the complaint liberally." Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009).

Gary's Amended Complaint contains multiple bare allegations of violations of various statutory and constitutional rights, but provides no facts detailing the alleged discrimination committed against him or the basis of such discrimination. The absence of well-pleaded facts is fatal to Gary's claims, which this court will address in turn.

Gary first accuses Hines of violating 42 U.S.C. § 1981 by deliberately misrepresenting the status of the New Jersey Attorney General's litigation against United Credit and by treating Gary in a manner different than other consumers were treated. Gary further claims Hines violated his right to make and enforce contracts without government interference. Section 1981 guarantees individuals the right to "make and enforce contracts, to sue, be parties, give evidence, and receive the full and equal benefit of all laws and proceedings." To state a § 1981 claim, a plaintiff must allege "(1) [he] is a member of a racial minority; (2) intent to discriminate on the basis of race by the defendant; and (3) discrimination concerning one or more of the activities enumerated in the statute, which includes the right to make and enforce contracts." Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001) (citation omitted). On its face, § 1981 limits claims to allegations regarding racial discrimination in the making and enforcing of contracts. Anjelino v. New York Times Co., 200 F.3d 73, 98 (3d Cir. 1999). Thus, § 1981 has no application when a plaintiff fails to allege he "suffered discrimination on the basis of [his] race or alienage." Kehres v. Pa., 262 F. App'x. 466, 470 (3d Cir. 2008). Gary's Amended Complaint does not mention or reference Gary's race or alienage and does not allege Hines intentionally acted in a racially discriminatory manner.*fn3 Gary has also failed to allege how Hines denied his ability to make or enforce contracts. Because Gary has failed to state a claim pursuant to § 1981, this claim will be dismissed.

Gary next alleges Hines violated 42 U.S.C. § 1982 by depriving him of the property taken from him by United Credit, specifically the $1,049 Gary paid to United Credit for their financial services. Construing the Amended Complaint broadly, Gary's claim can be construed as an argument that Hines violated § 1982 by failing to secure restitution for Gary of the $1,049 which was fraudulently taken by United Credit. Section 1982 guarantees equal rights to "inherit, purchase, lease, sell, hold, and convey real and personal property." 42 U.S.C. § 1982. To state a § 1982 claim, a plaintiff must allege "(1) the defendants' racial animus; (2) intentional discrimination; and (3) that the defendant deprived plaintiff of his rights because of race." Philip Morris, 250 F.3d at 797 (citation omitted). "Because of the historic interrelationship between [§ 1981 and § 1982], courts have consistently construed them together." Id. Gary's § 1982 claim fails based on the same deficiency as his § 1981 claim; he has not identified his race or alleged discrimination based on his race. Gary's § 1982 claim will therefore also be dismissed.

Gary's third claim alleges Hines violated 42 U.S.C. § 1985(3) by conspiring to deprive Gary of his property by seeking restitution for only those plaintiffs named in the consent judgment. Section 1985 makes it unlawful for two or more people to conspire to deprive, "either directly or indirectly, any person . . . of the equal protection of the laws, or of equal privileges" under the laws. To bring an action under § 1985(3), a plaintiff must allege "[1] that a racial or other class-based invidious discriminatory animus lay behind the coconspirators' actions, [2] that the coconspirators intended to deprive the victim of a right guaranteed by the Constitution against private impairment, and [3] that that right was consciously targeted and not just incidentally affected." Philip Morris, 250 F.3d at 805 (citation omitted). Like Gary's previous claims, his § 1985(3) claim fails due to his failure to allege his race or that Hines acted with racial animus. Furthermore, Gary does not allege Hines conspired with another individual to "consciously target" Gary to deprive him of equal protection of the laws. Gary's § 1985(3) claim will be dismissed.

Gary next claims Hines violated 42 U.S.C. § 1986 because he knew about and failed to take action to stop the harm done to Gary, including the deprivation of his rights and the failure to secure restitution on Gary's behalf. Gary asserts Hines advanced this harm by encouraging Gary to seek aid from the FTC. To state a claim under § 1986, a plaintiff must allege that "a defendant [knew] of a § 1985(3) conspiracy and 'having power to prevent or aid in preventing the commission of the same, neglect[ed] or refuse[d] so to do.'" Santiago v. Phila., 435 F. Supp. 136, 156 (E.D. Pa. 1977) (quoting 42 U.S.C. § 1986). This claim can only be pled once a ...

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