LISBOA v. NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY et al
Filing
14
OPINION. Signed by Judge Noel L. Hillman on 2/7/2019. (rss, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANGEL LISBOA,
1:18-cv-08744-NLH-JS
Plaintiff,
OPINION
v.
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
JOSEPH PIZARRO, NJ FAMILY
CARE, and STATE OF NEW
JERSEY,
Defendants.
APPEARANCES:
ANGEL LISBOA
402 RICHWOOD AVE
GLOUCESTER CITY, NJ 08030
Plaintiff appearing pro se
ASHLEY LAURA COSTELLO
STATE OF NEW JERSEY
OFFICE OF THE ATTORNEY GENERAL
DIVISION OF LAW
25 MARKET STREET
7TH FLOOR - WEST WING
TRENTON, NJ 08625
On behalf of Defendants
HILLMAN, District Judge
This matter concerns constitutional claims by Plaintiff,
Angel Lisboa, who is proceeding pro se, 1 arising out of past and
1
The Court granted Plaintiff’s application to proceed without
prepayment of fees pursuant to 28 U.S.C. § 1915(a)(1), and
1
ongoing child custody proceedings in New Jersey state family
court.
Defendants 2 have moved to dismiss all claims in
Plaintiff’s complaint.
For the reasons expressed below, the
Court will grant Defendants’ motion.
BACKGROUND
Based on the allegations in Plaintiff’s complaint and
documents attached to his complaint, it appears that Plaintiff
directed that service would be performed, without cost to
Plaintiff, by the U.S. Marshal. (Docket No. 2.)
2
Although it appears that service was effected on Defendant NJ
Family Care at an enrollment location in Westmont, New Jersey
(Docket No. 7), no appearance of counsel has been entered for NJ
Family Care. To the extent that NJ Family Care is an entity
capable of being sued, cf. N.J.A.C. 10:78-1.3 (“The NJ
FamilyCare program is under the supervision of the Division of
Medical Assistance and Health Services.”), and service at one of
the many enrollment centers in the state was proper, see
www.njfamilycare.org/need_help.aspx, Plaintiff’s claims against
NJ Family Care will be dismissed for the same reasons the Court
will dismiss Plaintiff’s claims against the other Defendants.
See Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013)
(explaining that the screening provisions of the IFP statute, 28
U.S.C. § 1915(a)(1), require a federal court to dismiss an
action sua sponte if, among other things, the action is
frivolous or malicious, or if it fails to comply with the proper
pleading standards); Mala v. Crown Bay Marina, Inc., 704 F.3d
239, 244 (3d Cir. 2013) (explaining that pro se litigants are
afforded greater leeway in the interpretation of their
pleadings, and they must receive notice “when a court acts on
its own in a way that significantly alters a pro se litigant’s
rights,” but there are limits to the procedural flexibility:
“For example, pro se litigants still must allege sufficient
facts in their complaints to support a claim. And they still
must serve process on the correct defendants. At the end of the
day, they cannot flout procedural rules - they must abide by the
same rules that apply to all other litigants.”).
2
is the father of four daughters who are currently in the custody
of Defendant New Jersey Division of Child Protection and
Permanency (CP&P).
Previously, the girls were in the custody of
their mother while Plaintiff was incarcerated from 2012 through
November 2015, and they remained in her custody until May 2017
when CP&P removed them from their mother’s care due to neglect.
Plaintiff relates that in May 2017 he met with CP&P
caseworkers in a parking lot while the girls were being treated
at a hospital for a severe case of scabies.
Plaintiff claims
that the caseworkers stated the only way Plaintiff could obtain
custody of his daughters was to sign documents agreeing to his
brother and girlfriend supervising him at all times.
Plaintiff
claims that he refused to sign the documents, but the
caseworkers said if he did not, the girls would be placed in
foster case.
Plaintiff claims that he signed the documents
under duress in order to obtain custody of his daughters. 3
3
Plaintiff has not asserted claims against the CP&P
caseworkers, but the Court notes that caseworkers are protected
by qualified immunity unless clearly established law puts them
on notice that their conduct is a violation of the Constitution.
Mammaro v. New Jersey Div. of Child Protection and Permanency,
814 F.3d 164, 171 (3d Cir. 2016) (explaining that CP&P
caseworkers are entitled to qualified immunity because
“[c]aseworkers investigating allegations of child abuse often
must make difficult decisions based on imperfect information.
Particularly when deciding whether to separate parent and child,
a caseworker must weigh the rights of the parent against the
rights of the child and the risk of abuse. We are not the first
to note that the failure to act quickly and decisively in these
3
On April 10, 2018, CP&P removed the girls from Plaintiff’s
care.
Plaintiff claims that several reasons were asserted for
the girls’ removal, including the loss of his job.
Plaintiff
asserts he lost his job due to absences caused by unnecessary
and burdensome requirements imposed by CP&P such as drug testing
and his decision to use doctors of his choice rather than
through state-provided programs.
apartment.
He was also evicted from his
Plaintiff refutes that he was neglecting his
daughters, which was CP&P’s ultimate basis for their removal.
It appears that all four daughters are currently in foster care
and under CP&P’s custody.
Plaintiff has asserted constitutional claims for three
events relative to the custody of his children: (1) the state
court’s refusal to provide him with a transcript for an October
10, 2017 family court hearing; 4 (2) the removal of his children
from his custody on April 10, 2018; and (3) the loss of his own
state-provided medical insurance when his daughters were removed
from his custody in April 2018.
CP&P, along with Defendant Joseph Pizarro, whom Plaintiff
situations may have devastating consequences for vulnerable
children”).
4
Plaintiff claims that he cannot defend himself against CP&P’s
allegations of child neglect without the court transcripts and
other documents he has requested.
4
claims was the videotape and transcript coordinator who denied
Plaintiff’s October 10, 2017 transcript request, have moved to
dismiss all of Plaintiff’s claims on numerous bases, including
sovereign immunity, absolute quasi-judicial immunity, and
failure to state any cognizable claims.
Plaintiff has not filed
an opposition to Defendants’ motion, but after Defendants filed
their motion, Plaintiff filed a letter on the docket asking this
Court to intervene in the ongoing state court custody case.
(Docket No. 12.)
DISCUSSION
A.
Subject matter jurisdiction
Plaintiff has brought claims pursuant to 42 U.S.C. § 1983
for violations of the U.S. Constitution.
This Court has subject
matter jurisdiction over Plaintiff’s federal claims under 28
U.S.C. § 1331.
B.
Standard for Motion to Dismiss
Defendants argue that Plaintiff’s claims are absolutely
barred by the doctrine of Eleventh Amendment sovereign immunity.
As plead, Eleventh Amendment immunity is a challenge to this
Court’s subject matter jurisdiction and, therefore, is
determined pursuant to Fed. R. Civ. P. 12(b)(1).
Gould Elecs.,
Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
Rule
12(b)(1) motions are either facial or factual challenges.
CNA
5
v. United States, 535 F.3d 132, 140 (3d Cir. 2008).
A facial
attack concerns the sufficiency of the pleadings, whereas a
factual attack is a dispute over the existence of certain
jurisdictional facts alleged by the plaintiff.
Id. (citing
United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d
506, 514 (3d Cir. 2007)).
In deciding a motion that attacks the complaint on its
face, the court must accept the allegations in the complaint as
true.
Mortensen, 549 F.2d at 891; Gould Elecs., 220 F.3d at 176
(“In reviewing a facial attack, the court must only consider the
allegations of the complaint and documents referenced therein
and attached thereto, in the light most favorable to the
plaintiff.”).
If the motion attacks the facts supporting jurisdiction,
“no presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material facts will
not preclude the trial court from evaluating for itself the
merits of jurisdictional claims.”
Mortensen v. First Federal
Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).
The
plaintiff will have the burden of proof that jurisdiction does
in fact exist.
Id.
Here, Defendants are making a facial attack that
Plaintiff’s claims are barred by sovereign immunity and,
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therefore, the Court accepts the allegations in Plaintiff’s
complaint as true.
Defendants also argue that Plaintiff’s claims against
Pizarro are barred under the doctrine of quasi-judicial
immunity, and otherwise fail to state any cognizable claims
against all Defendants pursuant to Fed. R. Civ. P. 12(b)(6).
When considering a motion to dismiss a complaint for failure to
state a claim upon which relief can be granted pursuant to Fed.
R. Civ. P. 12(b)(6), a court must accept all well-pleaded
allegations in the complaint as true and view them in the light
most favorable to the plaintiff.
347, 351 (3d Cir. 2005).
Evancho v. Fisher, 423 F.3d
It is well settled that a pleading is
sufficient if it contains “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Civ. P. 8(a)(2).
Fed. R.
Under the liberal federal pleading rules, it
is not necessary to plead evidence, and it is not necessary to
plead all the facts that serve as a basis for the claim.
Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977).
However, “[a]lthough the Federal Rules of Civil Procedure do not
require a claimant to set forth an intricately detailed
description of the asserted basis for relief, they do require
that the pleadings give defendant fair notice of what the
plaintiff’s claim is and the grounds upon which it rests.”
7
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3
(1984) (quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claim.’”
Bell Atlantic v. Twombly, 127 S. Ct. 1955, 1969 n.8
(2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974));
see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (“Our
decision in Twombly expounded the pleading standard for ‘all
civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final
nail-in-the-coffin for the ‘no set of facts’ standard that
applied to federal complaints before Twombly.”).
C.
Analysis
Plaintiff’s claims must be dismissed pursuant to several
well-established legal doctrines.
First, Plaintiff’s claims against CP&P and Joseph Pizarro
in his capacity as a court employee must be dismissed because
they are entitled to sovereign immunity and absolute quasijudicial immunity for their actions as alleged in Plaintiff’s
complaint.
See Wilson v. The New Jersey Division of Child
Protection and Permanency,
2016 WL 316800 at *5 (D.N.J. 2016)
(citing cases) (“The Third Circuit has held that DYFS (now
8
DCP&P) is an arm of the state covered by New Jersey's sovereign
immunity.”); Dongon v. Banar, 363 F. App’x 153, 155–56 (3d Cir.
2010) (citing Gallas v. Supreme Court of Pennsylvania, 211 F.3d
760, 772–73 (3d Cir. 2000); Johnson v. State of N.J., 869 F.
Supp. 289, 296–98 (D.N.J. 1994)) (finding that (1) “the state
courts, its employees, and the judges are entitled to immunity
under the Eleventh Amendment because they are part of the
judicial branch of the state of New Jersey, and therefore
considered ‘arms’ of the state”; and (2) that “any actions taken
by those charged with the responsibility of carrying out a
court's order would be barred by the doctrine of absolute quasijudicial immunity”); Wilson, 2016 WL 316800 at *4 (citing
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-101,
(1984); Pa. Fed'n of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d
310, 323 (3d Cir. 2002)) (explaining that the Eleventh Amendment
has long been held to incorporate a more general principle of
sovereign immunity that bars citizens from bringing suits for
damages against any state in federal court, and this immunity
had been extended to state agencies and departments and
officials when the state is the real party in interest).
Second, in order to bring claims under 42 U.S.C. § 1983, a
plaintiff must allege a violation of a right secured by the
Constitution or laws of the United States, and that the alleged
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deprivation was committed by a “person” acting under color of
state law.
West v. Atkins, 487 U.S. 42, 48 (1988).
CP&P and
Pizarro, acting in his official capacity, are not amenable to
suit under § 1983 because they are not considered to be a
“person” within the meaning of the statute.
See id. at 65 (“[A]
State is not a ‘person’ within the meaning of § 1983.”); id. at
71 (“Obviously, state officials literally are persons.
But a
suit against a state official in his or her official capacity is
not a suit against the official but rather is a suit against the
official's office.
As such, it is no different from a suit
against the State itself.”); Wilson, 2016 WL 316800 at *4
(finding that the state court’s employees are not “persons”
subject to liability under § 1983).
Third, the Court must abstain from interfering with
Plaintiff’s ongoing state court custody proceedings.
“The
Supreme Court has articulated a longstanding public policy
against federal court interference with state court proceedings
and instructs federal courts to refrain from taking any action
in cases where the federal plaintiff has or had adequate redress
in state proceedings.”
Dongon, 363 F. App’x at 156 (citing
Younger v. Harris, 401 U.S. 37, 43 (1971)).
Three requirements
must be met before Younger abstention is appropriate: (1) there
are ongoing state proceedings that are judicial in nature; (2)
10
the state proceedings implicate important state interests; and
(3) the state proceedings afford an adequate opportunity to
raise federal claims.
Marran v. Marran, 376 F.3d 143, 154 (3d
Cir. 2004) (citations omitted).
All three requirements are met in this matter.
As to the
first requirement, the claims in Plaintiff’s complaint and the
documents submitted with his complaint, as well as his most
recent correspondence to the Court, all indicate that the state
court proceedings are ongoing.
For the third requirement,
Plaintiff has complained about the actions of CP&P, which serves
as the plaintiff in the state court proceedings, and there is no
indication that Plaintiff cannot raise his claims against CP&P
in state court.
The same is true for Plaintiff’s claims against
Pizarro, who is a state court employee.
With regard to the second factor, the case law makes it
abundantly clear that it is inappropriate for a federal court to
interfere with the state's interest in administering its own
family court.
Dongon, 363 F. App’x at 156 (citing Taliaferro v.
Darby Twp. Zoning Bd., 458 F.3d 181, 192 (3d Cir. 2006)); Malhan
v. Tillerson, 2018 WL 2427121, at *7 (D.N.J. 2018) (“[T]he Court
is not permitted to interfere in accordance with the Younger
abstention doctrine . . . .
[T]he Court simply has no authority
to interfere with the Family Court proceedings because important
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state interests are implicated, and because there is an adequate
opportunity to raise federal claims therein.”); Gass v. DYFS
Workers, 371 F. App’x 315, 315-16 (3d Cir. 2010) (affirming
district court dismissal of claims asserted against state court
judge, DYFS, DYFS officials, deputy attorneys general, and
public defender attorney in underlying termination of parental
rights action to the extent plaintiff challenged family court
orders regarding custody of two minors); Johnson v. City of New
York, 347 F. App’x 850, 851-52 (3d Cir. 2009) (affirming
district court determination that claims were prohibited to the
extent plaintiff sought review of family court decisions
regarding emergency removal of children from his home); McKnight
v. Baker, 244 F. App’x 442, 444-45 (3d Cir. 2007) (affirming
district court finding that the court lacked jurisdiction to
review § 1983 claims where crux of plaintiff’s complaint was
that defendants conspired to have the family court suspend his
visitation rights with his daughter); McAllister v. Allegheny
Cnty. Family Div., 128 F. App’x 901, 902 (3d Cir. 2005)
(affirming district court dismissal of federal constitutional
claims where plaintiff “plainly [sought] to void or overturn
adverse rulings entered in the child-custody litigation” by
state family court because such relief required “a finding that
the state court ... made incorrect factual or legal
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determinations”); Weber v. Mcgrogan, 2016 WL 3381233 at *8
(D.N.J. 2016) (“[T]he Third Circuit has held that custody
proceedings implicate important state interests, and federal
district courts should not interfere with the decisions of state
family courts.”).
Finally, to the extent that Plaintiff seeks redress for
actions by Defendants in state court proceedings that are no
longer ongoing, Plaintiff has failed to plead facts to overcome
Defendants’ immunities, or to fall outside of the Rooker-Feldman
doctrine, or to otherwise articulate viable claims for relief.
See Pa. Fed'n of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310,
323 (3d Cir. 2002) (explaining that Eleventh Amendment immunity
is subject to three exceptions: “(1) congressional abrogation,
(2) waiver by the state, and (3) suits against individual state
officers for prospective injunctive and declaratory relief to
end an ongoing violation of federal law”); Desi's Pizza, Inc. v.
City of Wilkes-Barre, 321 F.3d 411, 421 (3d Cir. 2003)
(quotations, citations, and internal edits omitted) (explaining
that under the Rooker-Feldman doctrine, lower federal courts
lack subject matter jurisdiction to engage in appellate review
of state-court determinations or to evaluate constitutional
claims that are inextricably intertwined with the state court’s
decision in a judicial proceeding, and a plaintiff’s claim for
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relief in a federal action is “inextricably intertwined” with an
issue adjudicated by a state court under two circumstances: (1)
when in order to grant the federal plaintiff the relief sought,
the federal court must determine that the state court judgment
was erroneously entered, and (2) when the federal court must
take action that would render the state court's judgment
ineffectual); Drogon, 363 F. App’x at 156 (citing Gryger v.
Burke, 334 U.S. 728, 731 (1948); Engle v. Isaac, 456 U.S. 107,
121 (1982)) (“To the extent that errors of state law have
occurred, even if true, these claims do not amount to a denial
of due process warranting federal court intervention.”);
N.J.S.A. 9:6-8.43 (Adjudication of Alleged Child Abuse or
Neglect, Notice of Rights) (“The court shall advise the parent
or guardian of his right to have an adjournment to retain
counsel and consult with him.
The court shall advise the
respondent that if he is indigent, he may apply for an attorney
through the Office of the Public Defender.
In cases where the
parent or guardian applies for an attorney through the Office of
the Public Defender, the court may adjourn the case for a
reasonable period of time for the parent or guardian to secure
counsel; however, the adjournment shall not preclude the court
from granting temporary relief as appropriate under the law.
The court shall appoint a law guardian for the child as provided
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by this act.”);
N.J.S.A. 9:6-8.10a (“All records of child abuse
reports . . . shall be kept confidential and may be disclosed
only under the circumstances expressly authorized . . . .
If
the department denies access to specific information on this
basis, the requesting entity may seek disclosure through the
Chancery Division of the Superior Court. . . .
The department
shall not release any information that would likely endanger the
life, safety, or physical or emotional well-being of a child or
the life or safety of any other person.”); S.J. v. Division of
Medical Assistance and Health Services, 44 A.3d 643, 645 (N.J.
Super. Ct. App. Div. 2012) (explaining that NJ FamilyCare is “is
a federal and state funded health insurance program created to
help New Jersey's uninsured children and certain low-income
parents and guardians to have affordable health coverage,” and
finding that a guardian’s termination of benefits is an
administrative decision entitled to substantial deference).
CONCLUSION
All of Plaintiff’s claims against Defendants must be
dismissed as a matter of law for the numerous and separate
reasons discussed above.
Ordinarily, a civil rights plaintiff
acting pro se should be granted leave to amend.
However, an
important exception to that rule exists and applies here.
Given
the nature of Plaintiff’s claims and asserted facts, such an
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effort would be futile.
Accordingly, the Court will not afford
Plaintiff leave to file an amended complaint.
See Estelle v.
Gamble, 429 U.S. 97, 107 (1976) (providing that even though pro
se complaints, “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers,”
pro se litigants “must still plead the essential elements of
[their] claim and [are] not excused from conforming to the
standard rules of civil procedure”); Fletcher Harlee Corp. v.
Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir.
2007) (stating that Third Circuit case law “supports the notion
that in civil rights cases district courts must offer amendment
irrespective of whether it is requested when dismissing a case
for failure to state a claim unless doing so would be
inequitable or futile”); Ball v. Famiglio, 726 F.3d 448, 452 (3d
Cir. 2013) (explaining that the screening provisions of the IFP
statute, 28 U.S.C. § 1915(a)(1), require a federal court to
dismiss an action sua sponte if, among other things, the action
is frivolous or malicious, or if it fails to comply with the
proper pleading standards).
An appropriate Order will be entered.
Date: February 7, 2019
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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