LEWIS v. DIAZ-PETTI et al

Filing 17

OPINION. Signed by Judge Noel L. Hillman on 4/25/2019. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

KEVIN LEWIS,
Plaintiff,
CIVIL No. 18-9397 (NLH/KMW)
v.
OPINION
CARMEN DIAZ-PETTI, in her
official capacity as Director
of DCP&P/Assistant
Commissioner of the New
Jersey Department of Children
and Families (“DCF”), et al.,
Defendants.

APPEARANCES:
KENNETH J. ROSELLINI
KENNETH ROSELLINI, ATTORNEY AT LAW
636A VAN HOUTEN AVENUE
CLIFTON, NJ 07013
Attorney for Plaintiff Kevin Lewis.
BRETT JOSEPH HAROLDSON
NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY
DIVISION OF LAW
25 MARKET ST.
PO BOX 116
TRENTON, NJ 08625
Attorney for Defendants Carmen Diaz-Petti and Christine
Norbut Beyer.
HILLMAN, District Judge
This case concerns claims under 42 U.S.C. § 1983, the New
Jersey Civil Rights Act, and New Jersey common law relating to a

decision by the New Jersey Division of Child Protection and
Permanency (“DCP&P”) to take custody of Plaintiff’s three
children from him and give it to Plaintiff’s ex-wife.

Currently

before the Court is Defendants’, Commissioner Christine Norbut
Beyer and Assistant Commissioner Carmen Diaz-Petti
(collectively, the “Moving Defendants”), Motion to Dismiss and
Plaintiff’s opposition.

For the reasons discussed below, this

Court will grant Moving Defendants’ Motion to Dismiss, in part,
and deny the remaining portions as moot.
BACKGROUND
The Court takes this recitation of facts from Plaintiff’s
Complaint.

Plaintiff, Kevin Lewis, alleges he is an African-

American and parent of three children, “L.L.,” “KaL.,” and
“KeL.”

On May 16, 2016, DCP&P caseworker Rosemary Ortiz visited

Plaintiff’s home, told Plaintiff a complaint had been made about
Plaintiff’s treatment of his children, and asked to see them.
Plaintiff agreed to speak with Ortiz and allow her inside to see
his children.

Plaintiff refused to allow Ortiz to speak with

his children until after he had consulted with an attorney.
The next day, when Plaintiff went to pick up his children
at school, local police officers informed him that his children
had been removed from his custody by DCP&P.

Plaintiff, at some

point, spoke with Ortiz who told him his children were in DCP&P
custody, but refused to disclose their location.
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Plaintiff

later learned Defendant Lauralie Lewis, his ex-wife, had made a
false allegation of abuse and that the children had been placed
with her.

Plaintiff also learned that Defendant Lewis had

allegedly influenced his children to make false statements to
DCP&P, which led to the investigation.

Those false allegations

included allegations of physical abuse of which Plaintiff claims
there was no physical evidence and which a proper investigation
would have revealed as false.

For ninety days, Plaintiff was

unable to have contact with his children.
DCP&P instituted legal proceedings against Plaintiff,
alleging he had abused or neglected his children.
finding hearing was held.

A full fact-

Plaintiff alleges that he proved

there was “no basis for the allegations and the abuse and
neglect allegations . . . were dismissed by [court order on]
June 30, 2017.”

(Pl.’s Compl. ¶ 30.)

In August 2016, Plaintiff

was allowed ninety minutes of supervised visitation with his
children every week.

Besides this visitation, the children were

not returned to Plaintiff’s custody.
Plaintiff alleges his children were mistreated while in
DCP&P’s or his ex-wife’s custody.

The mistreatment resulted in

mental health issues with one child, the development of diabetes
in another, and expulsion from school for the third, among other
things.

Plaintiff complained to DCP&P about the mistreatment,

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specifically to a DCP&P supervisor, Defendant Jennifer Malloy,
but Plaintiff alleges DCP&P did not investigate his claims.
Plaintiff also makes allegations beyond DCP&P’s failure to
investigate.

Plaintiff claims DCP&P caseworker, Defendant

Shelia Walderama, 1 falsely testified in the underlying matter
concerning Plaintiff’s ability to administer diabetic treatment
to his child.

Plaintiff claims a DCP&P caseworker, Defendant

Chinuso Akunne, delayed medical attention for one of Plaintiff’s
children, belittled him in front of the child, and
“intentionally and maliciously interfered with Plaintiff’s
reunification therapy with his children.”
51.)

(Pl.’s Compl. ¶¶ 47-

Plaintiff additionally alleges that Defendants Jasmine

Peters, a DCP&P caseworker, and Lewis threatened his children on
multiple occasions that “they will soon be questioned by court
personnel and if they say they want to live with their father
they all will be thrown in foster care.” 2

(Pl.’s Compl. ¶ 37.)

Additionally, Plaintiff alleges improper conduct by DCP&P
contractors.

Plaintiff claims Defendants Dr. Brian Eig or Dr.

Lee and Associates “fabricated a false psychological evaluation
of Plaintiff with an improper diagnosis” and recommended

1

Plaintiff refers to Shelia as “Walderman” in his complaint.
(Pl.’s Compl. ¶¶ 43-45.) The Court will refer to this
individual as Walderama, as that is the spelling used in the
case caption.
2

Plaintiff alleges Defendant Lewis admitted to this under oath.
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placement of his children with Defendant Lewis.

Plaintiff

alleges this same individual or entity has done the same in
other cases.

Plaintiff claims that Defendant Dr. Stephanie

Lanase “fabricated a false psychological evaluation of
Plaintiff’s children, including a false diagnosis of post
traumatic stress disorder” and the underlying judge found these
findings “were, unexplainably, extremely biased against
Plaintiff.”

(Pl.’s Compl. ¶¶ 55-56.)

Finally, and similarly,

Plaintiff claims Defendant Dr. Melissa McCausland fabricated a
false diagnosis of Plaintiff’s children, stating they suffered
from post-traumatic stress disorder.

Defendant Dr. McCausland

did not respond to witness subpoenas in the underlying matter.
Plaintiff’s complaint in this Court alleges six counts
against multiple defendants.

Plaintiff alleges claims under 42

U.S.C. § 1983, NJCRA, and New Jersey common law.

In the first

count, Plaintiff alleges a violation of the Fourteenth Amendment
by Defendants Malloy, Ortiz, Peters, Walderama, and Akunne.

In

the second count, Plaintiff alleges unlawful retaliation against
his exercise of First Amendment rights by the same Defendants.
In the third count, Plaintiff alleges violations of the Fourth,
Fifth, and Fourteenth Amendments by Moving Defendants for an
allegedly unconstitutional policy.

In the fourth count,

Plaintiff also alleges violations of Due Process and Equal
Protection rights, here by all Defendants except Moving
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Defendants.

In the fifth count, Plaintiff alleges violations of

the NJCRA by all Defendants except Moving Defendants.

Finally,

in the sixth count, Plaintiff claims Defendant Lewis has
committed malicious abuse of process.
On September 18, 2018, Moving Defendants filed the pending
Motion to Dismiss.

Attached to the Motion to Dismiss is the

Certification of Elizabeth Wallace, Deputy Attorney General for
New Jersey who is responsible for handling the underlying child
custody matter.

(Defs.’ Mot. to Dismiss, Ex. A.)

Ms. Wallace

states that the custody matter is still ongoing in the New
Jersey Superior Court, Chancery Division, Family Part,
Burlington County.

(Defs.’ Mot. to Dismiss Ex. A ¶¶ 1-4.)

The

Motion to Dismiss is fully briefed and ripe for adjudication.
ANALYSIS
A.

Subject Matter Jurisdiction

This Court possesses subject matter jurisdiction over this
case pursuant to 42 U.S.C. §§ 1331 and 1367.
B.

Motion to Dismiss Standard

When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 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.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
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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.”

FED. R. CIV. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do . . . .”

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,
47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,
40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)).
To determine the sufficiency of a complaint, a
court must take three steps.
First, the court must
“tak[e] note of the elements a plaintiff must plead to
state a claim.”
Second, the court should identify
allegations that, “because they are no more than
conclusions, are not entitled to the assumption of
truth.” Third, “whe[n] there are well-pleaded factual
allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement for relief.”
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (alterations
in original) (citations omitted) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 664, 675, 679 (2009)).

A court may “generally

consider only the allegations contained in the complaint,

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exhibits attached to the complaint and matters of public
record.”

Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)

(citing Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).
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.”
Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416
U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“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.”).

“A motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough
facts to state a claim to relief that is plausible on its
face.’”

Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at

570).
C.

Motion to Dismiss

Moving Defendants challenge Plaintiff’s complaint on
multiple grounds. 3

The Court will only consider whether this

3

Moving Defendants also argue that monetary claims must be
dismissed based on immunity grounds and that Plaintiff does not
have standing to assert a claim for injunctive relief. Based on
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case is subject to abstention under the Younger doctrine.

The

most recent Supreme Court formulation of this abstention
doctrine can be found in Sprint Communications, Inc. v. Jacobs,
571 U.S. 69 (2013).

The Supreme Court noted the three

circumstances under which a federal court should consider
whether to abstain from hearing a case: (1) “[w]hen there is a
parallel, pending state criminal proceeding,” (2) when there are
“particular state civil proceedings that are akin to criminal
prosecutions,” and (3) when there are particular state civil
proceedings that “implicate a State’s interest in enforcing the
orders and judgments of its courts.”

Id. at 72-73 (citing

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975); Pennzoil Co. v.
Texaco Inc., 481 U.S. 1 (1987)).
If the underlying state court case fits within one of these
categories, a federal court should consider an additional three
factors.

First, is there “an ongoing state judicial

proceeding”; second, “do the proceedings implicate important
state interests”; and third, “is there an adequate opportunity
in the state proceedings to raise constitutional challenges.”
Middlesex Cty. Ethics Comm’r v. Garden State Bar Ass’n, 457 U.S.
423, 432 (1982).

But, even if these three factors are

satisfied, “abstention is not appropriate if state proceedings

the Court’s decision as to Younger abstention, this Court will
deny Moving Defendants’ other arguments as moot.
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are being undertaken in bad faith, or if there are other
extraordinary circumstances, such as where state proceedings are
based on a flagrantly unconstitutional statute.”

Gwynedd

Props., Inc. v. Lower Gwynedd Twp., 970 F. 1195, 1200 (3d Cir.
1992) (citing Middlesex, 457 U.S. at 435).
To determine whether Younger abstention is appropriate, the
Court will first determine whether the underlying state court
proceeding is within the class of cases contemplated as
deserving of abstention.

Second, the Court will examine the

three factors noted supra.

Third and finally, the Court will

determine whether abstention is inappropriate based on any of
the reasons discussed supra.
First, the Court must determine whether the state court
proceeding is of the type that is amenable to Younger
abstention.

It is.

The Supreme Court’s decision in Moore v.

Sims is instructive.

442 U.S. 415 (1979).

In that case, the

Court reversed a district court’s decision and found Younger
abstention applicable.

Id. at 434-35.

Moore involved an

ongoing state court proceeding concerning whether parents had
engaged in abuse of their children.

Id. at 418.

This is

exactly the case here.
Contrary to Plaintiff’s argument, the Supreme Court has not
further narrowed or undercut the Younger doctrine, at least as
it applies to a case of this type.
10

While the Court agrees

Younger is an “exceptional” doctrine only applicable in a narrow
set of circumstances, it appears Sprint reaffirms the viability
of the Younger doctrine in the factual circumstances already
recognized by the Supreme Court but declines to extend it any
further.

See Sprint Communs., Inc., 571 U.S. 69 (2013).

Because this type of case is amenable to abstention, the
Court must consider whether it satisfies the three factors
discussed supra.

The first factors is satisfied here.

The

parties agree that there is an ongoing state proceeding. 4
second and third factors, however, are contested.

The

Plaintiff

asserts that the second factor cannot be met here because there
is no important state interest.

This argument depends on a

narrow interpretation of legal doctrine and a specific factual
determination.

The state, according to Plaintiff, only has a

legal interest in the parent-child relationship if there is
abuse or threat of abuse.

Plaintiff claims in his complaint

that the state court proceeding has already determined that
there was no abuse, so New Jersey no longer has a valid,
constitutional interest.

The Moving Defendants respond by

arguing the fact that the state court continues to restrict

4

Because the parties agree on this point, the Court need not
determine whether the certification attached to Moving
Defendants’ motion may be properly considered by the Court.
11

Plaintiff’s time with his children suggests that Plaintiff has
not been cleared of all wrongdoing.
According to Plaintiff a “state has no interest in
protecting children from their parents unless it has some
reasonable and articulable evidence giving rise to a reasonable
suspicion that a child has been abused or is in imminent danger
of abuse.”

Croft v. Westmoreland Cty. Children & Youth Servs.,

103 F.3d 1123, 1126 (3d Cir. 1997).
both factually and legally deficient.

Plaintiff’s argument is
The parties agree that

New Jersey is still involved in the pending proceedings
concerning Plaintiff and the facts at-issue in this matter.
Thus, New Jersey could conceivably still have an interest in
preventing future, imminent abuse if it believes Plaintiff poses
a threat to his children.

The Court does not mean to suggest

that is truly the case, but only notes this to show that New
Jersey could still conceivably have an interest even assuming
Plaintiff’s assertions.

That fact that New Jersey continues to

pursue the matter suggests it does have an interest.
Moreover, whether it is appropriate for New Jersey to
continue to separate Plaintiff from his children may have the
constitutional dimension indicated, but the measure of state
interest for this analysis is not so limited.

The Third Circuit

has opined that “New Jersey has a substantial interest in fair
administration of child custody and parental rights
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proceedings.”

McDaniels v. N.J. Div. of Youth and Family

Servs., 144 F. App’x 213, 215 (3d Cir. 2005).

See also Lisboa

v. N.J. Div. of Child Prot. & Permanency, 1:18-cv-08744
(NLH/JS), 2019 U.S. Dist. LEXIS 19644, at *9 (D.N.J. Feb. 7,
2019) (collecting cases on this point and stating “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”).

As the question of custody is still to

be determined and the rights of the parents in this matter have
not been set with finality, New Jersey maintains a valid, legal
interest in this matter.

Thus, regardless of whether the state

court has decided the factual question of past (or even the
threat of future) abuse, New Jersey maintains an interest in the
matter.

The Court finds the second factor has been satisfied.

Plaintiff asserts the third Younger factor is not satisfied
here because the New Jersey Superior Court, Chancery Division,
Family Part is “a court of limited jurisdiction, and not capable
of providing Plaintiff with due process to pursue his § 1983
claims in this case.”

(Pl.’s Opp’n Br. 17.)

Plaintiff also

argues that only “actions and proceedings unique to and arising
out of a family or a family-type relationship” may fall within
the jurisdiction of the Family Part.
(citing N.J. Court Rule 5:1-2).)

(Pl.’s Opp’n Br. 18

Finally, Plaintiff argues the

Third Circuit’s ruling in FOCUS v. Allegheny Cty. Ct. of Common
13

Pleas, 75 F.3d 834 (3d Cir. 1996) would bar the invocation of
Younger here.

Moving Defendants argues the Family Part may

adjudicate constitutional matters relating to the facts at-issue
in this case.
The Third Circuit has previously addressed the exact issues
raised by Plaintiff.

Anthony v. Gerald Council, 316 F.3d 412,

422 (3d Cir. 2003).

In that matter, the Third Circuit held the

Family Part constitutes a “continuing, open and available forum
to raise any issues.”

Id.

The Third Circuit also noted those

under the auspices of the Family Part’s jurisdiction retained
appellate rights.

Id.

Plaintiff has presented no argument

showing this holding is now incorrect.
Moreover, Plaintiff’s quotation of FOCUS is so limited as
to the point of being misleading.

In that case, FOCUS attempted

to intervene in a matter in Pennsylvania state court.
at 843.
Id.

75 F.3d

The state court refused to allow FOCUS to intervene.

As a result, the Third Circuit found there was no ongoing

state matter as to FOCUS for the purposes of a Younger analysis.
Id.

In ruling so, the Third Circuit dismissed arguments that

FOCUS was required to exhaust state remedies before proceeding
to federal court.

Id.

In other words, Younger does not require

a party to pursue claims in state court if the state court will
not allow it to be party to an action.

This case has no

relation factually or legally to this matter.
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Thus, this Court

finds the third factor has been satisfied.

Accordingly, unless

Plaintiff provides a reason why abstention is inappropriate, the
Court must abstain from hearing this matter pursuant to the
Younger doctrine.
Finally, the Court will determine whether there is any
reason why abstention would be inappropriate.

No party asserts

that any statute at-issue is facially unconstitutional.

As a

result, the only other way this Court may continue to assert
jurisdiction is if the state proceedings are being undertaken in
bad faith and for the purposes of harassment.

It is Plaintiff’s

burden to establish this exception to abstention.

Schall v.

Joyce, 885 F.2d 101, 106 (3d Cir. 1989).
Plaintiff argues because the abuse allegations were
dismissed, “[a]ny pending DCP&P[] proceedings against Plaintiff,
therefore, could only be in bad faith or for purposes of
harassment, as it has no Constitutional interest justifying
interference in the integrity of Plaintiff’s family.”
Opp’n Br. 21.)

(Pl.’s

This Court finds this argument unavailing for

the same reason discussed supra.

New Jersey’s interest is not

so limited and New Jersey appears to still be actively
litigating the underlying matter.

15

As Plaintiff has not met his

burden to establish bad faith or harassment, this Court must
abstain in this matter. 5
The Court agrees with Plaintiff, Younger “abstention rarely
should be invoked.”

Addiction Specialists, Inc. v. Twp. of

Hampton, 411 F.3d 399 (3d Cir. 2005) (quoting Ankenbrant v.
Richards, 504 U.S. 689, 705 (1992)).

Unfortunately for

Plaintiff, the Court finds this is one of those rare situations
in which the Court must abstain.

Plaintiff’s claims may not be

brought in this Court until after the parallel state proceedings
have been completed.

For this Court to proceed at this point in

time could lead to the very friction between federal and state
courts Younger was intended to prevent.

All claims, against all

Defendants, fall within Younger abstention.

See, e.g., Gormley

v. Gormley, No. 17-cv-7874 (NLH/AMD), 2018 U.S. Dist. LEXIS
83694, at *1-11 (D.N.J. May 18, 2018) (dismissing federal and
state claims requesting injunctive, declaratory, and
compensatory relief against private and state actors).
Accordingly, this Court will dismiss this case in its entirety
pursuant to the Younger doctrine.

5

The Court notes that Plaintiff’s Complaint alleges
unconstitutional actions by Defendants. But, Plaintiff does not
assert these allegations restrict the Court from imposing
Younger abstention. The Court may only consider the arguments
properly before it.
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CONCLUSION
For the foregoing reasons, Moving Defendants’ motion to
dismiss will be granted, in part as to Younger abstention only,
and denied, on all other grounds as moot.

This Court’s decision

on Younger abstention grounds requires the Court to dismiss this
case in its entirety, without prejudice.
An appropriate Order will be entered.

Date: April 25, 2019
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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