Megan Exel, et al v. Nichole Govan, et al

Filing

NOT PRECEDENTIAL OPINION Coram: CHAGARES, JORDAN and NYGAARD, Circuit Judges. Total Pages: 5. Judge: NYGAARD Authoring.

Case: 16-4242

Document: 003112819365

Page: 1

Date Filed: 01/09/2018

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 16-4242
__________
MEGAN EXEL; DAVID EXEL; JOSEPH RADCLIFFE;
E.V., Minor; A.R., Minor
v.
NICHOLE GOVAN, conducting business as a state government employee;
DIVISION OF YOUTH AND FAMILY SERVICES (DYFS), Department of Children
and Families; JANAY TAYLOR; COUNTY OF CUMBERLAND; JOHN DOES of
DYFS, City of Bridgeton, State of New Jersey and Cumberland County;
ALLISON BLAKE, Commissioner New Jersey DYFS
Megan Exel, David Exel and Joseph Radcliffe,
Appellants
__________
On Appeal from the United States District Court
for the District of New Jersey
(District Court Civil No. 1-12-cv-04280)
District Judge: Honorable Robert B. Kugler
Submitted Under Third Circuit L.A.R. 34.1(a)
September 12, 2017
BEFORE: CHAGARES, JORDAN, and NYGAARD, Circuit Judges

(Filed January 9, 2018)
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Case: 16-4242

Document: 003112819365

Page: 2

Date Filed: 01/09/2018

OPINION*
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NYGAARD, Circuit Judge.
After learning that appellants Megan Exel and Joseph Radcliffe violated a Safety
Protection Plan, Janay Taylor and Nicole Govan, who work for the Division of Youth and
Family Services, removed A.R. (the biological child of Megan and Joseph) and E.V. (the
biological child of Megan). Megan, Joseph, and David Exel1 appeal the District Court’s
decision to grant Govan qualified immunity against their Section 1983 claims. They also
contend that the District Court erred by denying them an opportunity to amend the
complaint.2 We will affirm.3

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
The Safety Protection Plan designated David Exel, the childrens’ grandfather, with
temporary custody of the children.
1

We have de novo review over a district court’s dismissal under Fed. R. Civ. P. 12(b)(6).
Carpenters Health v. Management Resource Systems Inc., 837 F.3d 378, 382 (3d Cir.
2016). We give de novo review to the grant of summary judgment on the basis of
qualified immunity. Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014). We generally
review for abuse of discretion assertions of error relating to amending the complaint. In
re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).
2

3

On June 18, 2013, the District Court dismissed all claims against the Division of Youth
and Family Services, and the claims against Allison Blake, Nicole Govan, and Janay
Taylor in their official capacities. The case against the City of Bridgeton terminated on
July 30, 2013. On January 23, 2014, the District Court dismissed all claims against the
County of Cumberland and all claims brought on behalf of the minor plaintiffs without
prejudice.
2

Case: 16-4242

Document: 003112819365

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Date Filed: 01/09/2018

Appellants point to precedent requiring “reasonable and articulable evidence” to
support the removal of a child from a parent’s home and argue that Govan violated their
constitutional rights by failing to provide this. Croft v. Westmoreland Cty. Children &
Youth Servs., 103 F.3d 1123, 1126 (3d Cir. 1997). But their reliance on Croft as
controlling authority here is not persuasive.
We have previously concluded that the reference in Croft to reasonable and
articulable evidence “is too broad for purposes of qualified immunity.” Mammaro v.
New Jersey Div. of Child Protection and Permanency, 814 F.3d 164, 169 (3d Cir. 2016)
as amended (Mar. 21, 2016), cert. denied, 137 S. Ct. 161 (2016). Moreover, the
caseworker in Croft removed a child from the custody of the parents based only on
hearsay allegations of abuse. Croft, 103 F.3d at 1126; see also Mammaro, 814 F.3d at
170. The undisputed record here is distinguishable, clearly indicating that a Safety
Protection Plan was operative when Govan removed the children and that she acted
because the parents violated the Plan. For these reasons, the District Court correctly
decided that, for purposes of qualified immunity, no clearly established law existed to put
a reasonable official on notice that she or he could offend the Constitution by temporarily
removing children from their parents after finding the parents to be in violation of a
Safety Protection Plan.
Appellants also dispute the facts that prompted Govan to judge them to be in
violation of the Plan. But, for the reasons we just explained, we conclude that the District
Court properly based its decision to grant qualified immunity to Govan on the absence of
clearly established law.
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Document: 003112819365

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Date Filed: 01/09/2018

Appellants next contend that, when Govan implemented the Plan, she violated
procedural due process. Even assuming, arguendo, that procedural due process rights
were operative here, the District Court did not err. It properly held that clearly
established law did not exist to put a reasonable official on notice that she or he would be
infringing parents’ due process rights by not discussing with them the consequences of
violating the Plan, their right to an attorney, or their right to a hearing. Appellants’
argument, which relies on a district court decision that assesses due process requirements
in this context (filed two years after the conduct at issue here), is wholly inadequate to
establish notice for the purposes of our analysis.4
Finally, Appellants claim the District Court abused its discretion by not allowing
them to amend their complaint. However, the District Court never denied such a request.
Moreover, Appellants do not claim they lacked the opportunity to amend. Rather
Appellants position is best framed as asserting error because the District Court refrained
from sua sponte directing them to amend their complaint. They contend the District
Court should have advised them to amend their official capacity claims to include a
request for injunctive relief. Appellants also complain that the District Court did not
instruct them to amend their complaint to add an individual capacity claim against Janay
Taylor. Courts can give pro se parties broad leeway to present their case, but the

4

Appellants do not contest the District Court’s ruling that Govan is entitled to absolute
immunity for Appellants’ various assertions that Govan misled them or mishandled
aspects of the case beyond the removal. Ernst v. Child & Youth Services of Chester
County, 108 F.3d 486, 488-89 (3d Cir. 1997).
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Document: 003112819365

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Date Filed: 01/09/2018

neutrality of the court is paramount regardless of the status of the parties. Therefore, the
District Court did not abuse its discretion when it did not guide Appellants to amend their
official capacity claims or add an individual capacity claim.
For all of these reasons, we will affirm the order of the District Court.

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