MELENDEZ et al v. SHACK et al

Filing 120

OPINION. Signed by Judge Jose L. Linares on 4/5/2017. (JB, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MELENDEZ-SPENCER, et ano.,
PlaintiffS,

Civil Action No.: 12-1925 (JLL)
OPINION

V.

GLORIA SHACK, et al.,
Defendants.

LINARES, District Judge.

This matter comes before the Court by way of Defendants New Jersey Department of
Children and Families (“DCF”), Allison Blake, Sebastian Anthony, Carlos Novoa, Joyce Smith,
Gloria Shack, Gloria Cameron-Walton, Migdalia Diaz, Eileen Crummy, Regina Troutman,
Christian Arnold, Linda Higgins (also pled as “Linda Higgings”), and Jean Louis-Henry’s
(collectively “Individual Defendants”) (DCF and Individual Defendants shall collectively be
referred to as “Defendants”) Motion for Summary Judgment pursuant to Federal Rule of Civil
Procedure 56 and Local Federal Rule of Civil Procedure 56.1 (ECF No. 116). Plaintiffs have
opposed Defendants’ Motion (ECF No. 117), to which Defendants have replied (ECF No. 11$).
The Court decides this matter without oral argument pursuant to Rule 7$ of the Federal Rules of
Civil Procedure.

For the reasons set forth below, the Court grants Defendants’ Motion for

Summary Judgment.

I.

BACKGROUND1

This matter revolves around the alleged improper removal of Plaintiff A’ Sierra Spencer
(“Plaintiff Spencer”), a minor at the time, from the custody of her mother, Plaintiff Shuranda
Sha’ Kaarii Melendez-Spencer (“Plaintiff Melendez”). (See generally Plaintiffs’ fourth Amended

Complaint (ECF No. 6$; Def. SMF

¶ 2)). Plaintiff Spencer’s grandmother initially notified DCF

that Plaintiff Melendez was abusing Plaintiff Spencer on November 26, 2001

2

(Def. SMF

¶ 3).

According to Plaintiff Spencer’s grandmother, Plaintiff Spencer was kicked out of her home by
Plaintiff Melendez after Plaintiff Spencer missed her school bus. (Id.). Plaintiff Spencer, who was
nine years old at the time, was then forced to cross a busy highway in order to walk to school by
herself. (Def. SMF

¶ 4).3 The allegation was later substantiated.4 (Def. SMF ¶ 5).

These background facts are taken from the Defendants’ statements of material facts, pursuant to Local Civil Rule
56.1 (ECF No. 116-3 (“Def SMF”)), Plaintiffs’ responses thereto (ECF No. 117-1 (“P1. Rep. SMf”)), Plaintiffs’
Counterstatement of Material Facts (ECF No. 117-2 (“P1. SMF”)) and Defendants’ Reply to P1. SMF (ECF No. 11$
(“Def Rep. SMF”)).
2
The Court deems this statement admitted, despite Plaintiffs’ assertion that it is disputed. This is because Plaintiffs
have not meaningfully responded to Defendants’ statement. Rather, Plaintiffs provide the following response:
“Disputed. The Plaintiffs have no knowledge of the purported events other than Defendants’ Exhibit A presented by
the Defendants. The document presented was allegedly created eight years after the alleged incident and is so removed
that this alleged fact cannot accepted.” (P1. Rep. SMF ¶ 3) (emphasis in original). “A party asserting that a fact
cannot be or is genuinely disputed must support the assertion by” either “citing to particttlar parts ofmaterials in the
record, including depositions, documents, electronically stored information, affidavits, or declarations, stipulations
admissions, interrogatory answers, or other materials” or “showing that the materials cited do not establish the
absence or presence ofa genitine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1) (emphasis added). “If a party fails to properly support an assertion of fact or fails to
the Court may. consider the fact undisputed for the purposes
properly address another party’s assertion of fact.
of the motion
Fed. R. Civ. P. 56(e)(2). Although Plaintiffs claim the statement contained herein is in dispute,
they have not support their assertion with citations to materials in the record as required by Rule 56(c)(l), nor have
they supplied the Court with any authority indicating the date of creation of a document renders it irrelevant. Thus,
the Court accepts this specific statement as true for purposes of this motion.
The Court deems this statement admitted despite Plaintiffs’ assertion that is in dispute. Plaintiff responds to this
statement by pointing to Defendants’ Exhibits Al and AJ. Exhibit AT is a DCF “Contact Sheet” that pertains to an
incident that occurred on April 9, 2010, nearly nine years after the incident subject to this statement. Exhibit AJ is a
DCF “Assessment Sheet” authored on April 12, 2010, also nearly nine years after the incident discussed in this
statement. Plaintiffs’ response that DCF placed Plaintiff Spencer in harm’s way nine years after she crossed a busy
highway to get to school on her own simply is illogical. Simply put, Plaintiffs have not responded in anyway
whatsoever as to whether Plaintiff Spencer was forced to cross a busy highway on the subject date. Hence, the Court
accept this specific statement as true.
This Court deems this statement admitted for the reasons set forth in n. 2, supra.
.

.,

.

‘

2

.

On July 3, 2003, DCF was once again notified by Plaintiff Spencer’s grandmother that
Plaintiff Melendez beat Plaintiff Spencer with a wire hanger. (Def. SMF

Plaintiff Spencer

¶ 6).

was interviewed and advised that “this behavior had been going on for the past two years.” (Def
SMF

¶

7). DCF launched an investigation and substantiated the allegations “noting [Plaintiff

Spencer] had a visible mark and that [Plaintiff Spencer] stated that [Plaintiff Melendez] struck her.
(Def. SMF

¶

$).5

On July 16, 2003, and as a result of the July 3, 2003 incident, DCF filed a

“Verified Complaint for Custody.” (Def. SMF

¶

10). On that date, Judge William A. Daniel,

J.S.C. determined that “the removal of [Plaintiff Spencer]

...

to the life safety and health of’ Plaintiff Spencer. (Def. SMF

was necessary to avoid ongoing risk

¶

11).

Plaintiff Melendez was then ordered to undergo a psychological evaluation to determine
her competency to care for Plaintiff Spencer. (Def. SMF

¶

12). Subsequently, on February 4,

2004, Judge Daniel held a fact finding hearing, where he heard testimony from various witnesses,
including DCF employees and Plaintiff Melendez herself, and determined that “DCF had proven
by a preponderance of ‘the competent, material and relevant evidence[]’ that [Plaintiff Melendez]
had ‘unreasonably inflicted excess corporeal punishment on [Plaintiff Spencer].” (Def. SMF

¶J

13-14). “Judge Daniel further found that, ‘pursuant to N.J.S.A. 9:6-$.46[,] proof of the abuse as
to [Plaintiff Spencer] shall be evidence of abuse or neglect of any other child..
physical custody to Plaintiff Spencer’s father. (Def. SMF

¶ 15-16).

.

[,]“

and granted

DCF retained legal custody,

Plaintiffs purport to dispute this statement, but once again have failed to meaningfully dispute the facts contained
therein. Plaintiffs respond by stating “Disputed. The investigation was on-going and was still under investigation on
July 3, 2003.” Nothing in Plaintiffs’ response addresses whether DCF conducted an investigation, whether Plaintiff
Spencer had signs of physical abuse on her body, or the fact that the investigation substantiated the allegations of
physical abuse. Thus, the Court deems the statement admitted by Plaintiffs.

3

care, and supervision of Plaintiff Spencer. (Def. SMF

¶ 16). To date, the findings of the Court

remain in place. (Def. SMF ¶ 17).
On April 28, 2004, Plaintiff Melendez’s visitation rights were temporarily suspended and
she was ordered to undergo psychiatric evaluation. (Def. SMF

¶ 19). Dr. Ronald W. Crampton,

a psychiatrist, concluded that Plaintiff Melendez should not have unsupervised visits with her
children, including Plaintiff Spencer, and recommended “only therapeutically supervised ones.”
(Def. SMF

¶ 20). On May 26, 2004, Plaintiff Melendez underwent a psychological examination

by Dr. Margaret Doherty Delong, Psy. D. (Def SMF

¶ 21). Dr. Delong’s report noted that

“[sjeveral reported incidents indicate that [Plaintiff Spencer’s] visitation with her mother would
be detrimental, even in a supervised setting.”

(Def. $MF

¶ 22)(quotations in original).

Additionally, Dr. Delong recounted that Plaintiff Melendez “reportedly had an ‘outburst’ in court,
resulting in the judge suspending visitation with her children.” (Def. SMF

¶ 23)(quotations in

original). Thus, Dr. Delong concluded that “[i]t [did] not appear to be in [Plaintiff Spencer’s] best
interest to have contact with her mother. (Def. SMF

¶ 23).

Thereafier, on July 14, 2004, Plaintiff Spencer’s father was granted legal custody of her.

(Def. SMF

¶ 24). “DCF was granted continued care and supervision.” (Id.). Over the course of

the next few years, Plaintiff Melendez continued to contact Plaintiff Spencer and be subject to
various investigations for abuse of Plaintiff Spencer. (Def. SMF

¶ 18). For example, further

allegations of prior abuse were made on May 25, 2006, when DCF received allegations of sexual
abuse which were forwarded to the Linden, New Jersey Police Department. (Def. SMF ¶ 25). On
September 11, 2006, Plaintiff Spencer told the Linden Police Department Officer that she was

raped by Plaintiff Melendez’s boyfriend when she was five years old.

4

(Def. SMF

¶

26).

ubsequently, on February 28, 2007, “DCF sent a comprehensive report to the Honorable Roberto
Alcazar, J.S.C. that informed the court, among other things, about caseworker interviews with
[Plaintiff Melendez] concerning the alleged rape of [Plaintiff Spencer] by [Plaintiff Melendez’s]
boyfriend, Joseph Bianco, several years earlier, and allegations that [Plaintiff Melendez] had
[Plaintiff Spencer] take nude photographs of her to be posted on the internet.” (Def. SMF

¶ 27).

Said report contained a number of allegations of abuse and neglect relating to Plaintiff Melendez’s
treatment of Plaintiff Spencer. (Def. SMF

¶ 28).

These allegations were then memorialized in a

DCF’s screening summary dated March 13, 2007. (Def. SMF ¶29).
Judge Robert Kirsch, J.S.C. was notified in 2010 that Plaintiff Melendez filed an
administrative appeal of the above-mentioned findings that was forwarded to the Office of
Administrative Law in 2009, and that “DCf ‘decided not to go forward with a hearing

...

and

changed the findings to unfounded[,]’ because of several factors including that Plaintiff Melendez
had previously been substantiated for physical abuse, and the investigating caseworker was no
longer available.” (Def. SMF ¶ 31). “The reason for changing the 2007 referral had nothing to do
with a determination that [Plaintiff Melendez] being [sic] ‘exonerated.”6

(Def. SMF

¶

32).

Therein, DCF also stated that it decided to no longer proceed with the hearing in connection with

The Court deems this stated admitted, despite Plaintiffs’ assertion that it is in dispute. This is because Plaintiffs only
respond by stating the statement is disputed and include their own purported version of the fact stated therein, but fail
to cite to any fact or evidence in support of their contention. As noted in n.2, supra, “[a] party asserting that afact
cannot be or is genuinely disputed must support the assertion by” either “citing to particular parts ofmaterials in the
record, including depositions, documents, electronically stored information, affidavits, or declarations, stipulations
admissions, interrogatory answers, or other materials” or “showing that the materials cited do not establish the
absence or presence ofa genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1) (emphasis added). “If a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact.
the Court may. consider the fact undisputed for the purposes
of the motion... Fed. R. Civ. P. 56(e)(2). Therefore, since Plaintiffs have failed to provide this Court with any fact
or evidence contradicting Defendants’ Statement of Undisputed Material Fact, ¶ 32, the Court must deem the statement
as admitted by Plaintiffs.
5
.

.“

.,

.

.

the matter and changed its findings to “unfounded” because of Plaintiff Spencer’s age, the fact that
Plaintiff Melendez was already in DCF’s registry for other substantiated allegations of physical
abuse, and the fact that the DCF employee assigned to the file was attending graduate school in
London, England thereby rendering him unavailable for said hearing. (Id.).
On February 19, 2008, DCF caseworkers recalled that Plaintiff Melendez violated a
restraining order when she attempted to contact Plaintiff Spencer’s biological father’s wife.7 (Def.
SMF

¶

33).

DCF also reported on October 31, 2008, that Plaintiff Spencer’s allegations of

inappropriate sexual contact between herself and another resident of the Carrier Clinic, where she
had then resided, was unfounded. (Def. SMF

¶ 34).

Overlook hospital also diagnosed Plaintiff

Spencer with bipolar disease and aggressiveness, “which has symptoms of ‘poo judgment

...

or

unusual sexual behavior.” (Def. SMF ¶ 35). Plaintiff Melendez had a number of supervised visits
with her other child and nine supervised telephone contacts with Plaintiff Spencer at the end of
2009. (Def. SMF ¶ 36-37). On November 5, 2009, Plaintiff Melendez had a therapeutic supervised
visit with Plaintiff Spencer. (Def SMF

¶ 37).

A November 30, 2009 therapeutic update report

indicated that weekly therapeutic visitation between Plaintiffs Melendez and Spencer begin
immediately. (Def. SMF

¶ 38).

During this time period, Plaintiff Spencer was placed at treatment homes in Millstone and
Bridgewater, NJ. (Def. SMF

¶

39-40). Treatment homes are not foster homes, and are run by

“treatment home parents.” (Def. SMF

¶ 40).8

Shortly afier Plaintiff Melendez began supervised

The Court deems this statement admitted for the reasons set forth in n. 6, supra.
Plaintiffs purport to contradict this statement by claiming that they acknowledge that Plaintiff Spencer was not placed
into a foster home, that treatment homes are under DCF supervision. Plaintiffs’ assertion is not supported by citation
to the record or any evidence. Moreover, this response does not appear to be directed at any of the factual assertions
made in Def. SMF ¶ 40. Thus, the Court accepts all the facts in Def. $MF ¶ 40 as true.
8

6

visits with Plaintiff Spencer, Plaintiff Spencer’s therapist requested that they cease as the visits
were “detrimental to [Plaintiff Spencer’s] progress in treatment.” (Def. SMF

J 41).

On January

13, 2010, Plaintiff Spencer made allegations of emotional and/or sexual abuse while in the care of
her treatment home parents in Bridgewater, NJ. (Def. SMF

¶ 43).

DCF immediately launched an

investigation into the allegations within twenty-four hours. (Def. SMF

¶ 44).

On the next day,

January 14, 2010, Plaintiff Spencer “informed the DCF worker that ‘eve[ryth]ing in the report was
not true and [Plaintiff Melendez] twisted the story.”9 (Def. SMF

¶ 45).

Plaintiff Spencer “also

reported that she was not afraid of her treatment home parents.”1° (Def. SMF ¶ 46). A Bridgewater
Police Department report related to this incident recounted a conversation with Plaintiff Spencer
wherein the police officer stated

“[ut

[Plaintiff Melendez].” (Def. SMF

¶ 47).

was appropriately cared for in the

...

appeared that [Plaintiff Spencer] was being coached by
Accordingly, “DCF concluded that [Plaintiff Spencer]

Bridgewater home and that the resource parents’ actions did

not put [Plaintiff Spencer] at the risk of hanm (Def. SMF

¶ 4$).

On January 24, 2010, Plaintiff Spencer’s stepmother advised DCF that Plaintiff Spencer,
who was known as “a chronic runaway,” had once against run away and police were already
notified. (Def. SMF

¶

49). DCF was notified on January 27, 2010 that Plaintiff Spencer had

runaway once again. (Def. SMF

¶ 58).

DCF contacted Plaintiff Melendez to ascertain whether

she knew the whereabouts of Plaintiff Spencer one hour later. (Id.).
A psychosexual evaluation of Plaintiff Spencer conducted on February 3, 2010, and
reported to Judge Kirsch on March 23, 2010, recommended residential treatment for Plaintiff

Plaintiffs assert that this statement is disputed and that Plaintiff Spencer has denied making this statement. However,
once again, Plaintiffs have failed to cite to fact or evidence supporting the contention that Plaintiff Spencer did actually
refute this statement. Thus, for the reasons set forth in n. 6, the Court deems this statement admitted.
10
The Court deems this statement admitted for the reasons set forth in n. 9, supra.

7

Spencer. (Def. SMF

¶ 53).

Additionally, a screening

summary

dated March 29, 2010 noted that

Plaintiff Spencer made allegations of repeated rape during a time period when she was residing
with her father, but that the rapes occurred outside her father’s home. (Def. SMF
became aware of these allegations on March 24, 2010.

(Def. SMF

¶

¶

54). DCF

55). Plaintiff Spencer

explained to DCF that the rapes occurred when she had run away to Philadelphia, PA. (Def. SMF

¶ 56).

DCF also “noted that [Plaintiff Spencer’s biological father], who had legal custody of his

daughter, had placed [Plaintiff Spencer] in the Carrier Clinic.”1 (Def. SMF

¶

57). Plaintiff

Spencer spoke with DCF workers and explained that the multiple incidents of rape when Plaintiff
Spencer ran away involved dangerous encounters, which sometimes involved the exchange of
money or “a place to stay.”

(Def SMF

¶

58)(quotes in original).

As noted, Defendants

involvement ceased when Plaintiff Spencer became an adult at the age of eighteen years old.
Based on the above factual record, Defendants have moved for summary judgment seeking
dismissal of Plaintiffs’ complaint in its entirety, asserting that there is no genuine issue of material
fact for a jury to determine and that they are entitled to judgment in their favor as a matter of law.
(See generally ECF No. 116-4 (“Def. Mov. Br.”)).

II.

LEGAL STANDARD

Summary judgment is appropriate when, drawing all reasonable inferences in the non
movant’s favor, there exists no “genuine dispute as to any iTlaterial fact” and the movant is entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). “[T]he moving party must show that the non-moving party has failed to

Plaintiffs concede that Plaintiff Spencer was not “in DCF custody for the entirety of her [sic] the eight years that
she was removed from [Plaintiff Spencer]
(P1. Rep. SMF ¶ 4).
j’

8

establish one or more essential elements of its case on which the non-moving party has the burden
of proof at trial.” McCabe v. Ernst & Young, LLP, 494 f.3d 41$, 424 (3d Cir. 2007) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
The Court must consider all facts and their reasonable inferences in the light most favorable
to the non-moving party. See Pa. Coal Ass ‘11 v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). If a

reasonable juror could return a verdict for the non-moving party regarding material disputed
factual issues, summary judgment is not appropriate. See Anderson, 477 U.S. at 242-43 (“At the
summary judgment stage, the trial judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial.”).

III.

ANALYSIS

Defendants advance four reasons they believe they are entitled to summary judgment. (See
generally Def. Mov. Br.). First, Plaintiff argue that the Rooker-feldman doctrine and absolute
immunity bar any recovery for claims related to the 2003 emergency removal of Plaintiff Spencer.
(Def Mov. Br. at 8-26).

Second, Defendants aver that Individual Defendants are entitled to

qualified immunity which bars Plaintiffs from recovering on any of their Federal Constitutional
claims. (Def. Mov. Br at 26-47). Third, Individual Defendants assert that they are entitled to
“numerous immunities” under the New Jersey Tort Claims Act thereby defeating Plaintiffs’ non
Constitutional claims.

(Def. Mov. Br. at 47-58).

Finally, Defendants argue that Plaintiff

Melendez’s claims relating to events that occurred prior to 2010 are barred by the statute of
limitations. The Court addresses each of these arguments separately below.

9

A. Claims Relating to the 2003 Emergency Removal and the Subsequent Related
Hearings are Barred by the Rooker-feidman Doctrine and Absolute Immunity12

The Rooker-Feldman doctrine bars federal jurisdiction in cases “that are essentially appeals
from state-court judgments.” Great W Mining & Mineral Co. v. fox Rothschild LLF, 615 F.3d
159, 165 (3d Cir. 2010). Put another way, a suit in federal court is barred under the Rooker

Feldman doctrine where “a favorable decision in federal court would require negating or reversing
the state-court decision.” Id. at 170 n.4 (citations omitted). In order for the Rooker-feldman
doctrine to apply, four requirements must be met: “(1) the federal plaintiff lost in state court; (2)
the plaintiff ‘complain[s] of injuries caused by [the] state-court judgments;’ (3) those judgments
were rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court to
review and reject the state judgments.” Great W Mining, 615 F.3d at 166 (citing Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).

“The second and fourth

requirements are the key to determining whether a federal suit presents an independent, non-barred
claim” and they are “closely related.” Id. at 166, 168.
Here, the Court finds that Plaintiffs’ Constitutional claims relating to the 2003 emergency
removal of Plaintiff Spencer from Plaintiff Melendez’s custody, and the subsequent State Court
hearings relating thereto, are barred by the Rooker-Feldman doctrine.

Indeed, Plaintiffs’

Constitutional claims meet each and every element discussed above. It is undisputed that Plaintiff
Spencer was removed from her mother’s custody on an emergent basis in 2003. (Def. SMF

¶

1).

New Jersey law specifically an allows emergency removal, without Court order or hearing, “if the

12

The Court notes that Plaintiffs have not submitted any opposition to Defendants’ Rook-er-feldman or absolute
immunity arguments. (See generally ECF No. 117 (“P1. Opp. Br.”)).

10

child is in such condition that the child’s continuance in the place or residence or in the care and
custody of the parent

...

presents an imminent danger to the child’s life, safety, or health, and there

is insufficient time to apply for a court order.” N.J.S.A. 9:6-8.29(a). Additionally, it is not disputed
that the Superior Court of New Jersey held a “Dodd” hearing shortly after the emergency removal
of Plaintiff Spencer, consistent with N.J.SA. 9:6-8.29(a). (Def. SMF

¶

1). At the Dodd hearing,

the Court ruled in favor of DCF and determined that Plaintiff Melendez’s custody of Plaintiff
Spencer should be terminated. (Def. SMF

¶ 11).

That ruling, which was rendered far before this action was ever instituted, remained in
place until Plaintiff Spencer turned 18 years old and was no longer subject to DCF’s jurisdiction.
(Def. SMF ¶ 32). As a matter of fact, not only have these rulings remained in place, but they have
been affirmed twice by New Jersey’s Appellate Division, also prior to this institution of the within
action. (See Def. Mov. Br. at 16). Accordingly, those claims related to the Dodd hearing and
emergency removal of Plaintiff Spencer are parallel to the State Court proceedings, where
Plaintiffs did not succeed. Thus, Defendants have demonstrated that the first and third prongs of
the above standard have been met here, since this federal action stems from a State Court
proceeding where Plaintiffs lost and those proceedings concluded prior to the institution of this
action.
Additionally, Plaintiffs’ complained of injuries in connection with the 2003 emergency
removal and the subsequent hearings all arise from the State Court proceedings. This is clear since
Plaintiffs claim that the 2003 emergency removal and the subsequent hearings caused them harm
because Plaintiff Spencer was separated from Plaintiff Melendez.

(See Plaintiffs’ Fourth

Amended Complaint (ECF No. 68 “FAC”))). In the FAC, Plaintiffs explicitly demand damages

11

stemming from the 2003 emergency removal and the subsequent hearings. (FAC at 33-35).
Hence, the second prong of the above mentioned standard is also met.
Finally, the fourth prong of the Rooker-Feidman Doctrine is also present in this case.
Indeed, for this Court to find in favor of the Plaintiffs, this Court would have to review the Superior
Court of New Jersey’s rulings and orders, and find that they were incorrect or improper. Such
actions by this Court are exactly what the Rooker-Feidman Doctrine prohibits. Hence, there is no
genuine issue of material fact that the Rooker-feidman Doctrine applies to this case. Therefore,
this Court may not entertain Plaintiffs’ claims as they pertain to the 2003 emergency removal and
all subsequent hearings related thereto, and grants summary judgment in favor of Defendants
regarding same.
Individual Defendants are also entitled to absolute immunity for their participation in, and
preparation for, the relevant Court proceedings relating to Plaintiff Spencer’s removal and the
continued separation from Plaintiff Melendez. First, as recent as last year, the Third Circuit has
held that DCF employees, officers, and/or officials, similar to Individual Defendants, enjoy
absolute immunity when they engage in emergency removals of an at-risk child. Mammaro v. N.J
Div. of Child Prot. & Permanency, 814 F.3d 164, 166-67 (3d Cir. 2016)(the “Court has never
found a substantive due process violation when state agencies temporarily remove a child,
whatever the circumstances of the removal[]” were). The outcome here is strictly governed by the
law set forth in Mammaro, as Individual Defendants were DCF employees who engaged in an
emergency removal pursuant to New Jersey law. Thus, it is apparent that Individual Defendants
are entitled to absolute immunity in connection with the emergency removal itself.

12

Plaintiff Spencer also claims her procedural due process rights were violated by the
subsequent Court proceedings stemming from the emergency removal. (FAC at

¶ 30). The

Fourteenth Amendment of the United States Constitution mandates that no State “deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV

§ 1.

Hence, a state must provide sufficient process, which includes notice and the opportunity to be
heard, before it deprives a person of a protected interest, including the right to family integrity.
Mathews v. Eldridge, 424 U.s. 319, 333-35 (1976). Nonetheless, the Third Circuit has explained

that state social workers are entitled to absolute immunity from

§ 1983 claims that relate to their

participation in, and preparation for, court proceedings. See B.S. v. Somerset Cry., 704 F.3d 250,
269 (3d Cir. 2013)(holding that absolute immunity is applicable when a social worker’s function
“is still fundamentally prosecutorial in nature.”).
Here, just as with their substantive due process claims, Plaintiffs’ procedural due process
claim also fails due to absolute immunity. As noted, Plaintiffs assert that their substantive due
process rights were violated because Defendants allegedly provided false information during the
court proceedings that followed the emergency removal. First, this claim fails because the record
contains no facts to corroborate Plaintiffs’ allegations.

Moreover, it is clear that Individual

Defendants are entitled to absolute immunity for their participation in, and preparation for, the
aforementioned court proceedings. It is apparent from the record before the Court that Individual
Defendants were acting in a prosecutorial manner when they appeared in the Superior Court of
New Jersey and presented DCf’s argument in support of termination of Plaintiff Melendez’s
custody of Plaintiff Spencer. The whole purpose of the proceedings was to terminate Plaintiff
Melendez’s custody of Plaintiff Spencer.

As such, Individual Defendants were adverse to

13

Plaintiffs. Hence, there is no genuine issue of material fact that Individual Defendants are entitled
to absolute immunity for claims stemming from the participation in, and preparation for, the court
proceedings relating to the emergency removal of Plaintiff Spencer and summary judgment is
granted in their favor based on same.
B. Plaintiffs Constitutional Claims Against Individual Defendants are Inadequate and
Barred by Qualified Immunity

Plaintiffs’ constitutional claims against Individual Defendants are based on the theory of
the duty of protect, which provides that “in certain limited circumstances the Constitution imposes
upon the State affirmative duties of care and protection with respect to particular individuals.”
Nicini v. Morra, 212 f.3d 798, 807 (3d Cir. 2000). “Generally, the Due Process Clause does not

impose an affiniiative duty upon the state to protect citizens from the acts of private individuals.”
Sanford v. Stiles, 456 F.3d 298, 303-04 (3d Cir. 2009). However, there are two scenarios where a

State’s duty to protect or care is implicated. “First, the state has a duty to protect or care for
individuals when a ‘special relationship’ exists.” Sanford, 456 f.3d at 304. A special relationship
exists when a state has custody over an individual. Indeed, the linchpin of special relationship is
custody. See D.R. by L.R. v. Middle Bttcks Area Vocational Technical Sc/i., 972 F.2d 1364, 1371

(3d Cir. 1992). The only other time “the state has a duty [to protect or care is] when a ‘state created
danger’ is involved.” Sanford, 456 F.3d at 304 (quoting Morse v. Lower Merion Sc/i. Dist., 132

f.3d 902, 907 (3d Cir. 1997)). “To prevail on a state-created danger claim in the Third Circuit, a
plaintiff must prove the following four elements: (1) the harm ultimately caused was foreseeable
and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3)
a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable
victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential
14

harm brought about by the state’s actions, as opposed to a member of the public in general; and
(4) a state actor affinnatively used his or her authority in a way that created a danger to the citizen
or that rendered the citizen more vulnerable to danger than had the state not acted at all.” Id. at
3O43O5.
The Court finds that neither of the above exceptions to the general rule that a state does not
have a duty to protect or care are applicable here. First, neither the record, nor Plaintiffs’ Fourth
Amended Complaint, contain any allegations or fact that any of Defendants created any sort of
danger for Plaintiff Spencer. The allegations primarily revolve around the allegedly improper
removal of Plaintiff Spencer’s. No evidence has been introduced to show that the harm Plaintiff
There have been no submissions, nor expert

Spencer allegedly sustained was foreseeable.

testimony, that shows any Defendant acted in a manner that would “shock the conscience.”
Plaintiffs have not provided any evidence to show that Plaintiff Spencer had any relationship with
the State during this time period. As a matter of fact, while Defendants did retain supervision of
Plaintiff Spencer, physical and legal custody over her was transferred to her biological father.
Lastly, not a single piece of evidence is before the Court that Plaintiffs can point to which even
suggests that any of the alleged harms Plaintiff Spencer was subjected to were created by
Defendants.
Further, those allegations that relate to purported abuse of Plaintiff Spencer at the treatment
homes and while she was separated from Plaintiff Melendez also do not give rise to liability for
two reasons.

First, the allegations have not been corroborated by any evidence.

While the

allegations may have been sufficient at the Motion to Dismiss stage, Plaintiffs must rebut the
evidence presented by Defendants at the Summary Judgment phase. Here, Plaintiffs are merely

15

incapable of rebutting said evidence. The record shows that any allegations of abuse either were
not substantiated or occurred outside the scope of Defendants’ involvement with Plaintiff Spencer,
e.g. when Plaintiff Spencer ran away to Philadelphia.
Second, the evidence herein shows, contrary to Plaintiffs’ assertions, that Plaintiff Spencer
did not have a “special relationship” with the State. Indeed, the record is clear that Plaintiff
Spencer was removed from her mother’s custody. Thereafter, Plaintiff Spencer’s physical and
legal custody were transferred to Plaintiff Spencer’s father. The record before this Court shows
that decisions regarding Plaintiff Spencer’s care, whether she would be admitted to a treatment
home, etc., were all beyond Defendants’ control. Accordingly, there was no special relationship
between Plaintiff Spencer and any Defendant. Thus, Plaintiffs’ failure to protect or care claim
fails since the record shows that there was no special relationship and there was no State created
danger, and summary judgment is appropriate in favor of Defendants.
Even if Plaintiffs were capable of establishing their failure to protect or care claim,
summary judgment would still be appropriate as Individual Defendants are entitled to qualified
immunity. Qualified immunity shields government officials “from liability for civil damages
insofar as their conduct does not violate clearly established

...

constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 81$ (1982). “For
qualified immunity to attach, an official must demonstrate his conduct was objectively
reasonable.” Id. at 818-19 (emphasis added).
In this case, the undisputed record above shows Individual Defendants are entitled to
qualified immunity. First, nothing in the record, nor Plaintiffs’ submissions, shows that Individual
Defendants violated Plaintiffs’ constitutional rights.

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Rather, the record merely shows that

Individual Defendants, through DCF, were advised by Plaintiff Spencer’s grandmother that
Plaintiff Melendez forced Plaintiff Spencer to cross a busy highway at the age of nine years old
because she missed her school bus. In response, Individual Defendants immediately removed
Plaintiff Spencer from her mother’s custody. Individual Defendants then participated in the Dodd
hearing and provided the Superior Court of New Jersey with a report which included their findings.
The State Court hearings led to a termination of Plaintiff Melendez’s parental rights, and physical
and legal custody being granted to Plaintiff Spencer’s biological father. While under in her father’s
custody, Plaintiff Spencer appeared to be coerced into making false statements regarding abuse at
the treatment homes.

Defendants investigated those allegations and found them to be

unsubstantiated. Nowhere within the record is there any evidence suggesting Defendants violated
Plaintiff Spencer’s constitutional rights by failing to protect her or provide her care.
Even if the Court were to view the above facts as some form of constitutional violation,
Individual Defendants are still entitled to qualified immunity. This is simply because the record
is void of any facts that tend to show Individual Defendants acted in an unreasonable manner.
There is not a single fact in the record that indicates any other Family Services officer and/or
official would have acted in any manner other than how Individual Defendants acted in this matter.
There is no testimony nor affidavit from other Family Services officer and/or official that argues
that Individual Defendants’ actions in their emergency removal of Plaintiff Spencer, in accordance
with New Jersey law, and the participation in the Dodd hearing was unreasonable. Plaintiffs do
not allege that Individual Defendants made untrue statements during the Dodd hearing that would
be considered unreasonable. Not a single fact has been introduced to suggest that the placement
of Plaintiff Spencer with her biological father was inappropriate or unreasonable. There are also

17

no facts in the record that show Individual Defendants’ actions and responses in connection to any
one of the numerous allegations of abuse were unreasonable.
Rather, the record shows that Individual Defendants acted as reasonable Family Service
officers and/or officials would act under the circumstances. Indeed, Individual Defendants were
advised that a nine-year-old child was being placed in a dangerous condition. In accordance with
New Jersey law, they immediately removed Plaintiff Spencer from the dangerous condition, i.e.
Plaintiff Melendez’s custody. Then, in furtherance of their duties as Family Services officers
and/or officials, and in compliance with a court order, they gave testimony before the Superior
Court of New Jersey. The scope of this testimony was based on the investigation conducted by
Individual Defendants. That testimony, and Defendants’ investigations, led to court order that
placed Plaintiff Spencer in the custody of her biological father. While in her biological father’s
custody, Individual Defendants responded to each and every allegation of abuse by Plaintiff
Spencer and launched investigations into said allegations quickly. All of these actions were
reasonable given the circumstances surrounding Plaintiff Melendez’s treatment of Plaintiff
Spencer, and Plaintiffs have not introduced any evidence that would suggest the contrary.
Accordingly, the Court concludes that there is no genuine issue of material fact that Individual
Defendants are entitled to qualified immunity and their motion for summary judgment based on
same is granted.
C. Plaintiffs’ Non-Constitutional Claims Also Must Be Dismissed

Counts XIII, XIV, XXIV, and XV assert common law claims of fraud, negligence, and
gross negligence. (FAC at Counts XIII, XIV, XXIV, and XV). These claims must be dismissed
under New Jersey’s Tort Claims Act’s good faith immunity and New Jersey law that prohibits

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liability for alleged injury caused by the adoption or failure to adopt or enforce law. See N.J.S.A.
59:3-3; 59:2-4, respectively. Under New Jersey’s Tort Claims Act, “a public employee is not

liable if he acts in good faith in the execution or enforcement of any law.” N.J.$.A. 29:3-3. A
claim of negligence does not defeat the public employee’s good faith immunity. See Canico v.
Hurtado, 144 N.J. 361, 365 (N.J. Sup. Ct. 1996). The public employee is entitled to good faith
immunity if he can “demonstrate ‘objective reasonableness’ or that he behaved with ‘subjective
good faith.” Clark v. Twp. of Mt. Laurel, 357 N.J. Super. 362, 369 (N.J. Super. Ct. App. Div.
2003)(citingAlston v. City of Camden, 168 N.J. 170, 183 (N.J. Sup. Ct. 2001)). To overcome the

good faith immunity, a plaintiff must show more than ordinary negligence (see Canico, 144 N.J.
at 365), and must show that the public employee’s actions “involved a crime, actual fraud, actual
malice[,] or willful misconduct.” B.f. v. Div. of Youth and family Servs., 296 N.J. Super. 372,
385 (N.J. Super. Ct. App. Div. 1997). Further, a public employer is entitled to enjoy any immunity
or defense that shields its employees from liability. N.J.S.A. 59:2-3; 59:3-3.
The Court concludes that the aforementioned common law claims against Defendants are
barred pursuant to the good faith immunity under New Jersey’s Tort Claims Act. Indeed, those
Counts all sound in negligence. Specifically, Plaintiffs base their claims on Defendants alleged
failure to properly asses the removal of Plaintiff Spencer from Plaintiff Melendez in 2003, and
alleged failure to ensure Plaintiff Spencer received adequate care thereafter. (FAC

¶

21). The

Court first notes that Plaintiffs have not pointed to any evidence that supports or corroborates the
allegations in the Fourth Amended Complaint. Plaintiffs do not introduce any testimony, affidavit,
or other evidence that supports their contentions that Defendants acted in the manner described in
the Fourth Amended Complaint. Conversely, Defendants have attached a voluminous record

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which shows that it is undisputed that the allegations in the fourth Amended Complaint did not
occur.
Additionally, Plaintiffs cannot meet their burden in defeating Defendants’ good faith
immunity defense. As noted, Individual Defendants are entitled to enjoy good faith immunity
absent a showing of that they acted fraudulently, with actual malice, criminally, or their alleged
misconduct was willful. The record here contains no evidence that could lead the Court to believe
that Individual Defendants meet this criterion.
There have been no allegations, or evidence, that Individual Defendants acted criminally.
further, there is no evidence of any actual fraud or actual malice.

Plaintiffs point to no

misstatements by Individual Defendants; the record even shows that all the allegations of abuse
were substantiated with the exception of the one allegation that Defendants chose to not pursue
because of, inter alia, Plaintiff Spencer’s age. finally, there is nothing in the record to show that
Individual Defendants committed any misconduct, let alone willful misconduct.

Instead, as

discussed above, Individual Defendants’ conduct in this case appears to have been wholly
reasonable. Thus, there is no genuine issue of material fact that Individual Defendants are entitled
to good faith immunity and these common claims are barred by said doctrine. Further, since
Individual Defendants are entitled to enjoy good faith immunity, that immunity is also enjoyed by
DCF as their employer.
Plaintiffs’ assertion that Defendants are liable for failing to enforce DCF’s policies and
procedures also fails. New Jersey law explicitly immunizes public entities from such claims. “A
public entity is not liable for any injury caused by adopting or failing to adopt a law or byfaiting
to enforce any law.” N.J.S.A. 59:2-4. This immunity is an unqualified immunity that extends to

20

ministerial, as well as discretionary, duties, and does not require a showing of good faith by the
entity.

See Gar,y v. Payne, 224 N.J. Super. 739, 735 (N.J. Super. Ct. App. Div. 1988).

Accordingly, New Jersey law is clear that Defendants cannot be liable for any failure to enforce
claims advanced by Plaintiffs.
D. All of Plaintiff Melendez’s Claims that May have Accrued Prior to 2010 are Barred
by the Statute of Limitations

In partially dismissing Plaintiffs Second Amended Complaint, this Court observed that
“Plaintiff Melendez[] is only bringing claims arising from events which took place in 2010.” (ECF
No. 32). However, as Defendants correctly note, the FAC could be construed to assert

§ 1983

claims that arose prior to 2010. To the extent Plaintiff Melendez is asserting claims that arose
prior to 2010, those claims are barred by the relevant statutes of limitations discussed below.
All of Plaihtiff Melendez’s claims under common law, the New Jersey Civil Rights Act,
and the U.S. Constitution are subject to a two-year statute of limitations. First, it is well known
that

§ 1983 does not contain a statute of limitations provision. See Wilson v. Garcia, 471 U.s.

261, 268 (1985).
limitations for

Accordingly, the Supreme Court in Wilson explained that the statute of

§ 1983 claims is governed by the forum State’s statute of limitations governing tort

actions. Wilson, 471 U.S. 275-76, 280. Moreover, the personal injury statute of limitation applies
even if the forum State has a different statute of limitations for intentional torts. See Owens v.
Okttre, 488 U.S. 235, 236 (1989). In New Jersey, personal injury actions are subject to a two-year
statute of limitations, which the Third Circuit has held is applicable to

§ 1983 claims brought in

New Jersey. See N.J.S.A. 2A:14-2a; see also Cito v. Bridgewater Tip. Police Dept., 892 D.2d
23, 25 (1989).

21

State law also governs whether the statute of limitations is tolled by the pendency of prior
litigation in

§ 1983 actions. See Ammiung v. Chester, 494 F.2d 811, 815 (3d Cir. 1974). In New

Jersey, “statute[s] of limitations governing the timeliness of an action will not be tolled for a
pending determination in another tribunal unless there is an exhaustion requirement.”

W. V.

Pangborne & Co., Inc. v. Ni Dep’t of Transportation, 116 N.J. 543, 556 (N.J. Sup. Ct. 1989).

Finally,

§ 1983 claims are not subject to any exhaustion requirements of any judicial or

administrative remedies. See Ellis v. Dyson, 421 U.S. 426, 432 (1975). Accordingly, the statute
of limitations governing Plaintiff Melendez’s

§ 1983 claims are subject to a two-year statute of

limitations which has not been tolled by the pendency of the prior Superior Court of New Jersey
proceedings.
Here, Plaintiffs initial complaint was filed on March 27, 2012. (ECF No. 1). Thus, to be
timely, any claim contained in the FAC needed to accrue on or after March 27, 2010. Based on
the above law, any claims prior to March 27, 2010 would be barred by the pertinent statute of
limitations. However, Plaintiff Melendez makes no allegations that any alleged constitutional
violations occurred on March 27, 2010 or thereafter. Hence, there is no genuine issue of material
fact that all of Plaintiff Melendez’s claims are untimely and barred by the statute of limitations,
and Defendants are entitled to summary judgment on said claims.

22

CONCLUSION
For the aforementioned reasons, Defendant’s Motion for Summary Judgment is granted in
its entirety and Plaintiffs’ fourth Amended Complaint is hereby dismissed with prejudice. An
appropriate Order accompanies this Opinion.

DATED: Apri12O17
J%SEL.L ARES
&71’JITED STATES DISTRICT JUDGE

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