Teo Johnson v. City of Clifton

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 23-2550 __________

TEO JOHNSON; TEO T. POWELL; ZENA L. POWELL, a/k/a The Johnson-Powell Group, LLC.;

Appellants v.

CITY OF CLIFTON; CLIFTON POLICE DEPARTMENT; THE CITY OF CLIFTON ABC LICENSING BOARD

____________________________________ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-20-cv-20118) District Judge: Honorable Claire C. Cecchi ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) May 1, 2025 Before: KRAUSE, PHIPPS, and ROTH, Circuit Judges (Opinion filed July 7, 2025) ___________ OPINION* ___________

PER CURIAM

This suit stems from the denial of an application to transfer a liquor license in Clifton, New Jersey. After buying a liquor store from S&S Liquors, LLC, Teo Johnson, Teo T. Powell, and Zena Powell filed an application with the City of Clifton Alcoholic Beverage Control Licensing Board (the “ABC Board”) to transfer S&S Liquors’ license to the Johnson Powell Group, LLC, a corporation comprised of Johnson and Teo Powell. Per standard procedure, the application was referred to Sergeant Glen Arthur of the Clifton Police Department to review criminal search results provided by the State Police and the FBI. Sergeant Arthur learned that Johnson had served a ten-year prison sentence for a 1995 drug-related RICO conviction. He recommended that the transfer application be denied because Johnson’s RICO conviction constituted a disqualifying “crime involving moral turpitude” under N.J. Stat. Ann. § 33:1-25, and the appellants had misrepresented Johnson’s criminal history on the application. The ABC Board denied the application accordingly. The plaintiffs did not appeal the denial to the state agency or apply to the agency for a “disqualification removal order,” which might have permitted the Johnson Powell Group to obtain a liquor license despite Johnson’s criminal history.

In December 2020, Johnson, Powell, and Powell sued the City of Clifton, the Clifton Police Department, and the ABC Board (collectively, the “Clifton defendants”).1 They cited 42 U.S.C. §§ 1983, 1985, & 1986, 18 U.S.C. § 242, and Title VII of the Civil Rights Act of 1964, and claimed that the Clifton Defendants had violated their constitutional rights under the Fourth, Fifth, Ninth, and Fourteenth Amendments by delaying and denying their transfer application and unlawfully obtaining the sealed record of Johnson’s RICO conviction. The Clifton defendants denied the allegations in the complaint and asserted a counterclaim demanding judgment for counsel fees and costs under 42 U.S.C. § 1988 and N.J. Stat. Ann. 2A:15-59.1.

Following discovery and the filing of pretrial motions, the parties filed cross- motions for summary judgment. The District Court granted the Clifton defendants’ motion and denied the plaintiffs’ motion. Johnson, Powell, and Powell appeal.2

We have jurisdiction under 28 U.S.C. § 1291.3 We review the resolution of cross- motions for summary judgment de novo, see Spivack v. City of Philadelphia, 109 F.4th 158, 165 (3d Cir. 2024), although it appears that Johnson, Powell, and Powell primarily challenge the grant of summary judgment in favor of the Clifton defendants. We do not consider issues that Johnson, Powell, and Powell do not raise. See M.S. ex rel. Hall v. Susquehanna Twp. Sch. Dist., 969 F.3d 120, 124 n.2 (3d Cir. 2020) (explaining that parties forfeit any argument that they do not raise in their opening brief).

Johnson, Powell, and Powell argue that the District Court erred in granting summary judgment on their claims under 42 U.S.C. §§ 1983, 1985, & 1986 and Title VII of the Civil Rights Act of 1964. But, in the District Court, they conceded that they found out that Johnson’s RICO conviction was not sealed for purposes of licensure investigations, and, on appeal, they describe how they learned about the limitations on the seal, see 3d Cir. Doc. No. 17 at 10-11. As the District Court ruled, in light of the conceded availability of information about Johnson’s conviction, Johnson, Powell, and Powell cannot prevail on their § 1983 claim to the extent that they claimed an unlawful search and seizure of Johnson’s criminal records.

Additionally, as the District Court concluded, Johnson, Powell, and Powell did not identify a policy or custom that caused them harm, as they must to impose municipal liability under § 1983 or § 1985.4 See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (“[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, . . . inflicts the injury that the government as an entity is responsible under § 1983.”); Small v. Chao, 398 F.3d 894, 898 (7th Cir. 2005) (applying Monell’s requirements to a § 1985 claim). Johnson, Powell, and Powell claim that they did identify an objectionable policy – the background check. But, for the reasons given by the District Court, there is no basis to conclude that the background check requirement is unconstitutional, and there is no evidence that the background check was “the moving force” behind a constitutional tort committed by an employee.5 Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027 (3d Cir. 1991) (describing the ways that municipal liability can be established) (citation and quotation marks omitted). The latter is particularly true where the defendants provided evidence that the application was denied not only because the background check revealed the RICO conviction but also because Johnson’s criminal history was misrepresented on the application.6 See ECF No. 66-3, Ex. D at ¶ 10 (stating that the parties were notified that the application was denied for “disqualifying discrepancies”) (emphasis added), & Ex. E at ¶¶ 14 & 15 (describing the two independently disqualifying bases). Where Johnson, Powell, and Powell’s § 1985 claim could not survive summary judgment, their § 1986 claim could not prevail.7 See Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir. 1980) (explaining that where a claim under §1985(3) is insufficient, a dependent § 1986 claim also fails).

The District Court also properly granted summary judgment on the Title VII claim. We agree with the District Court that there is no evidence of an employment relationship between Johnson, Powell, or Powell and any of the defendants through which Title VII liability could attach.8 See 42 U.S.C. § 2000e (defining, inter alia, employee); United States v. Bd. of Educ. for Sch. Dist. of Phila., 911 F.2d 882, 891 (3d Cir. 1990) (distinguishing control over employment exercised in a regulatory capacity from that applied “in the course of a customary employer-employee relationship” and concluding that the former did not provide a basis for Title VII liability).9

In their brief, Johnson, Powell, and Powell spend time presenting broader arguments that the District Court misapplied the summary judgment standard under the circumstances of their case, violated their right to a jury trial, and, by denying them a trial, violated their other constitutional rights. See 3d Cir. Doc. No. 17 at 27-33. However, we see no error in how the District Court applied the summary judgment standard, and it is well-established that summary judgment, applied properly, does not violate the right to a jury trial, see In re TMI Litig., 193 F.3d 613, 725 (3d Cir. 1999), amended by 199 F.3d 158 (3d Cir. 2000). We have reviewed Johnson, Powell, and Powell’s other arguments and conclude that they are meritless.

For these reasons, we will affirm the District Court’s judgment.