MELENDEZ et al v. SHACK et al

Filing 79

OPINION. Signed by Judge Jose L. Linares on 5/20/14. (jd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MELENDEZ, et. a!.,
Civil Action No. 12-1925 (ILL) (JAD)

Plaintiffs,
v.

OPINION

SHACK, et a!.,
Defendants.

LINARES, District Judge.

This matter comes before the Court by way of the
State Defendants’ motion to dismiss
Counts XVII and XIX of Plaintiffs’ Fourth Amended
Complaint (the “Complaint”) pursuant to
Federal Rule of Civil Procedure I 2(b)(6).’ Those
Counts allege substantive due process claims
under the United States and New Jersey State Con
stitutions on behalf of Plaintiff Shuranda
Sha’Kaarii Melendez-Spencer (“Shuranda”). The
Court has considered the parties’ submissions
in support of and in opposition to the instant moti
on and decides this matter without oral
argument pursuant to Federal Rule of Civil Proc
edure 78. For the reasons set forth below, the
Court GRANTS the State Defendants’ motion.
I.

BACKGROUND

Plaintiff Shuranda is the mother of Plaintiff A’Sierra
Giianna Spencer (“A’ Sierra”).
(Compl.

¶ 6, ECF No. 68). In July 2003, Defendant DYFS received a complaint alleging

that

Shuranda had physically abused A’ Sierra, whic
h prompted DYFS to remove A’Sierra from
All references to the “State Defendants” refer
to the New Jersey Division of Youth and Family
Services (“DYFS”),
the New Jersey Department of Children and
Families, Sebastian Anthony, Christian Arnold,
Allison Blake, Gloria
Cameron-Walton, Eileen Crummy, Migdalia Diaz,
Linda Higgins, Jean Louis-Hansy, Carlos Novoa,
Gloria Shack,
Joyce Smith, and Regina Troutman, collectively.

I

Shuranda’s custody. (Id. at ¶J 22, 64). A’Sierra was then ten
years old, and remained in
DYFS’s care, custody, and supervision for the next seven years.
(Id. at ¶J 4, 5). Throughout that
time, A’Sierra bounced between homes and clinics, and was
homeless from about February to
April 2010. (Id. at ¶J 23, 24, 35, 36, 38, 47, 50, 52, 55, 56).
Shuranda was permitted to have
little to no visitation with A’Sierra during those seven years,
and was not apprised of the various
instances of abuse and neglect suffered by A’Sierra. (Id. at
¶J 27-29). The State Defendants
also misled Shuranda about A’Sierra’s wellbeing—they repeate
dly made it known or otherwise
created the perception that A’Sierra was “doing fine,” when
in fact she was suicidal, on multiple
antidepressants, hospitalized, and physically and sexually abused
while in DYFS’s custody. (Id.
at ¶J 27, 31, 34, 36, 45-48, 5 1-54). A’Sierra finally reunited with
Shuranda on November 1,
2010, one day after her eighteenth birthday. (ld. at
2
¶J 1, 4).
Plaintiffs allege that the State Defendants failed to adequately
investigate the initial
complaint made against Shuranda in July 2003 before remov
ing A’ Sierra from her custody. (Id.
at ¶ 65). Plaintiffs also allege that the State Defendants improp
erly relied on a report prepared by
Stephanie Auerbach in October 2003 (the “October 2003 Report
”), which listed thirty-three
allegations of abuse against Shuranda. (Id. at
¶J 88-94). According to Plaintiffs, the State
Defendants failed to recognize that Auerbach’ s clinical social
worker license had expired when
she prepared the October 2003 Report, and repeatedly failed
to investigate the unsubstantiated
allegations contained therein, contrary to multiple court orders
requiring them to do so. (Id. at ¶J
92-94, 104, 109, 115, 140).
Justin Kurland, a caseworker, eventually investigated Auerba
ch’s allegations in 2007.
(See Id. at ¶ 134). After two weeks of investigation, Kurlan
d concluded that there was support
for Auerbach’s allegations. (See Id.). Plaintiffs allege
that Kurland could not have performed a
2

A’Sierra was born on October 31, 1992. (Compi. 4).
¶

2

proper investigation in such a short period of time. (Id.). As the Court
understands it, drawing
all reasonable inferences in favor of Plaintiffs, they also allege that the
Department of Children
and Family Services eventually overturned Kurland’s 2007 finding by
letter dated August 31,
2010. (Seeid. atJ231).
The State Defendants now move to dismiss Counts XVII and XIX of Plainti
ffs’
Complaint. (Defs.’ Br. 7, ECF No. 71-2). Those two counts are brough
t on behalf of Shuranda,
and allege that the State Defendants are liable under the state-created
danger doctrine. (Compi.

¶J 381-92, 408-19). Count XVII is brought pursuant to 42 U.S.C. § 1983, and Count XIX is
brought pursuant to the New Jersey State Constitution. (Id.). The Court
has jurisdiction over
Count XVII pursuant to 28 U.S.C.
U.S.C.

28

§ 1367.

II.

§ 1331, and jurisdiction over Count XIX pursuant to §

LEGAL STANDARD

For a complaint to survive dismissal, it “must contain sufficient factual
matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.” Ashcro
ft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp.

V.

Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals

of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
Id.
In determining the sufficiency of a complaint, the Court must accept
all well-pleaded
factual allegations in the complaint as true and draw all reasonable
inferences in favor of the
nonmoving party. See Phillips v. County ofAllegheny, 515 F.3d
224, 234 (3d Cir. 2008). But,
“the tenet that a court must accept as true all of the allegations
contained in a complaint is
inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. Thus,
legal conclusions draped in the
The State Defendants numbered only one page of their Brief,
which they numbered as page one. (See Defs.’ Br.
1). When citing to specific pages of the State Defendants’ Brief,
the Court’s count begins from that page.

3

guise of factual allegations may not benefit from the presu
mption of truthfulness. id.; In re Nice
Sys., Ltd. Sec. Litig., 135 F. Supp. 2d 551, 565 (D.N.J. 2001
).
Additionally, in evaluating a plaintiffs claims, generally “a
court looks only to the facts
alleged in the complaint and its attachments without refer
ence to other parts of the record.”
Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994). However, “a
document integral to or explicitly relied on in the complain
t may be considered without
converting the motion [to dismiss] into one for summary judg
ment.” In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (inte
rnal quotation marks omitted and
alteration in the original).
III.

DISCUSSION

The State Defendants move to dismiss Shuranda’s Section
1983 and New Jersey State
Constitution claims based on the state-created danger doct
rine. (Defs.’ Br. 7). The Court first
considers Plaintiffs’ argument that this Court already addr
essed the State Defendants’ arguments
in favor of dismissing Shuranda’s state-created danger claim
s in its July 23, 2012 Opinion, and
that, as a result, the State Defendants are improperly seek
ing to relitigate those arguments. (Pls.’
Opp’n Br. 2-4, ECF No. 77). Plaintiffs’ argument is unav
ailing.
While the State Defendants previously sought to dismiss Plain
tiffs’ Section 1983 claims
against them, they did not specifically seek to dismiss Shur
anda’s state-created danger claims.
Melendez v. Shack, No. 12-1925, 2013 WL 3873255, *8.40
(D.N.J. July 24, 2013). Indeed, the
State Defendants argued only that the lack of allegation
s constituting violations of clearly
established statutory or constitutional rights in Plain
tiffs’ Second Amended Complaint entitled
them to qualified immunity. Id. In addressing that argu
ment, the Court noted the following two
general points pertaining to Shuranda’s Section 1983 claim
s. Id. at *9• First, the Court noted
4

that in making their qualified immunity argument, “the State
Defendants neglect[edj to mention
the substance of [Shuranda’ s] claims, namely that through contin
ued lying and misrepresentation
of facts to [Shuranda] as well as the state court, Defendants wrong
fully deprived her of custody
of A’Sierra and visitation rights over a number of years.” Id.
Second, the Court noted that the
Third Circuit has recognized that parents have a constitutionally
protected liberty interest in the
custody, care, and management of their children. Id. (citatio
ns omitted).
The Court, however, did not specifically address whether
Shuranda could bring a Section
1983 or New Jersey State Constitution claim under the state-c
reated danger doctrine. Id. at *8..
10. To the extent that the Court even mentioned the state-created
danger doctrine, it noted
merely that A’Sierra, and not Shuranda, had asserted such a
claim in the Second Amended
Complaint. Id. at *8..9. Thus, it is appropriate for the Court
to now consider for the first time
whether Shuranda’s Section 1983 and New Jersey State Consti
tutions claims premised on the
state-created danger may proceed.
The state-created danger doctrine is a narrow exception to
the general rule that the Due
Process Clause of the Fourteenth Amendment does not impose
an affirmative obligation on
states to protect their citizens from private harms. Henry v.
City ofErie, 728 F.3d 275, 286 (3d
Cir. 2013); Phillips, 515 F.3d at 235 (citing DeShaney v.
Winnebago Cnty. Dept. ofSoc. Servs.,
489 U.S. 189, 195-96 (1989)). The doctrine generally provid
es that a state may be held liable
where it “acts to create or enhance a danger that depriv
es the plaintiff of his or her Fourteenth
Amendment right to substantive due process.” Morrow
v. Balaski, 719 F.3d 160, 177 (3d Cir.
2013) (emphasis in original and citation omitted). To
state a claim under the doctrine, a plaintiff
must plead the following four elements:
(1) the harm ultimately caused was foreseeable and fairly
direct;
5

(2) a state actor acted with a degree of culpability that
shocks the
conscience;
(3) a relationship between the state and the plaintiff exist
ed such
that the plaintiff was a foreseeable victim of the defe
ndant’s acts,
or a member of a discrete class of persons subjected
to the
potential harm brought about by the state’s actions, as
opposed to a
member of the public in general; and
(4) a state actor affirmatively used his or her authority
in a way
that created a danger to the citizen or that rendered the citiz
en more
vulnerable to danger than had the state not acted at all.
Sanford v. Stiles, 456 F.3d 298, 304-05 (3d Cir. 2006
) (citations omitted).
The crux of Shuranda’ s Section 1983 state-created dang
er claim is her allegation that the
State Defendants foreseeably and directly caused her to
sustain emotional, psychological, and/or
psychiatric harm by preventing her from visiting or rega
ining custody of A’Sierra. (Compl.
4
¶J
3 85-86). The State Defendants argue that this claim cann
ot proceed because it does not satisfy
the fourth element of the above test, which predicate liabi
s
lity upon the state acting in a manner
that exposes a plaintiff to danger. (See Defs.’ Br. 8-9).
According to the State Defendants, their
alleged actions—preventing Shuranda from visiting or rega
ining custody of A’Sierra—did not
increase Shuranda’s exposure to the type of “danger” envi
saged by the Third Circuit’s statecreated danger doctrine jurisprudence. (Defs.’ Repl
y Br. 6-7, ECF No. 78). While the Third
Circuit has allowed state-created danger claims to proc
eed where a state’s actions exposed a
plaintiff to physical danger, the State Defendants main
tain that the Third Circuit has never
allowed such a claim to proceed where a state’s actio
ns exposed a plaintiff to only emotional
danger. (See id. at 6). Thus, the State Defendants argu
e that Shuranda’s state-created danger
claim cannot proceed here “because no relationship betw
een the State and her existed that could
have—or did—create physical danger for [Shurand
a].” (Defs.’ Br. 9 (emphasis in original)).
Plaintiffs’ Opposition Brief clarifies that Shuranda
allegedly suffered only “mental, emotional and psycho
logical
harm” by being deprived of her constitutionally protect
ed right to raise and maintain a relationship with
A’ Sierra.
(Pis.’ Opp’n Br. 17-18). Based on Plaintiffs’ clarific
ation, to the extent that the Complaint alleges physic
al harm,
those allegations apparently apply only to A’Sierra.
(See Compl. ¶j 386, 413).

6

The Third Circuit first explicitly considered whether a plain
tiff had stated a viable claim
under the state-created danger doctrine in D.R. v. Middle
Bucks Area Vocational Technical
School, 972 F.2d 1364, 1373-76 (3d Cir. 1992) (en banc
). As is relevant here, the Third Circuit
stated in D.R. that “[Ijiability under the state-created dang
er theory is predicated upon the states’
affirmative acts which work to plaintiffs’ detriments in
terms of exposure to danger.” 972 F.2d
at 1374 (emphasis added). The Third Circuit did not expl
icitly hold that such danger must be
physical in nature in D.R. That said, to the extent that the
Third Circuit has held that a statecreated danger claim either raised a triable issue of fact
or stated a plausible claim for relief, it
has only done so when the underlying facts involved
exposure to physical danger.
Indeed, the case in which the Third Circuit first adopted the
state-created danger doctrine,
Kneipp

V.

Tedder, involved a physical danger. 95 F.3d 1199 (3d
Cir. 1996). The plaintiffs in

Kneipp were the parents and legal guardians of Sam
antha Kneipp. 95 F.3d at 1201. On a cold
winter’s evening, Samantha and her husband, Joseph,
were walking home from a tavern when
the defendant, Officer Tedder, stopped them for causing
a disturbance near their home. Id. at
120 1-03. According to Joseph, Samantha was visibly intox
icated and had difficulty walking. Id.
at 1201. Eventually, a separate group of police offic
ers arrived at the scene and permitted Joseph
to go home. Id. at 1202. Joseph did so, assuming that
because Samantha was drunk, the officers
would take her to either the hospital or the police stati
on. Id. But Officer Tedder instead sent
Samantha home alone. Id. About two hours later
, Samantha was found lying at the bottom of an
embankment near the Kneipps’ home. Id. at 1203
. As a result of her exposure to the cold, she
sustained permanent brain damage. Id.
In addressing the fourth element of the state-created
danger doctrine, the Third Circuit
concluded in Kneipp that there was sufficient evid
ence “that Officer Tedder and the other police
7

officers used their authority as police officers to create
a dangereous situation or to make
Samantha more vulnerable to danger.

.

.

.“

Id. at 1209. The police officers did so by sending

Joseph home, detaining her, “and then sending her hom
e unescorted in a seriously intoxicated
state in cold weather.

.

.

.“

Id. Recently, the Third Circuit clarified that the polic
e officers’

“actions—intervening, detaining, and then releasing
—were akin to throwing [Samantha) into a
‘snake pit.” Brown v. Sch. Dist. ofPhila., 456 F. App
’x 88, 92 (3d Cir. 2011) (quoting Bowers
v. De Vito, 686 F.2d 616, 618 (7th Cir. 1982)).
The facts of Kneipp support the conclusion that a state
-created danger claim cannot
proceed unless the plaintiff is exposed to physical dang
er. See Kneipp, 95 F.3d at 1205
(“Samantha Kneipp’s case presents the right set of facts
which, if believed, would trigger the
application of the state-created danger theory.”). Mor
eover, the cases that informed the Third
Circuit’s decision to adopt the state-created danger doct
rine in Kniepp also support that
conclusion. Id. at 1206, 1209; See Reed v. Gardner,
986 F.2d 1122 (7th Cir. 1993), cert. denied,
510 U.S. 947 (1993) (state defendant officer remo
ved sober driver from vehicle and left behind a
passenger whom he knew to be drunk with the keys to
the vehicle); Freeman v. Ferguson, 911
F.2d 52 (8th Cir. 1990) (state defendant police chief,
by interfering with police officers’
enforcement of restraining order, created the danger
which resulted in the victims’ deaths); Wood
V. Ostander, 879 F.2d 583 (9th
Cir. 1989), cert. denied, 498 U.S. 938 (1990) (stat
e defendant
officer stranded the plaintiff, a female passenger
of a drunk driver, on the side of the road in a
high crime area at 2:30 a.m.); Cornelius v. Town
ofHighland Lake, 880 F.2d 348 (11th Cir.
1989), cert. denied, 494 U.S. 1066 (1990) (state defe
ndants assigned inmate with a violent
history to a community work squad at the town hail
where plaintiff, a town clerk, worked).

8

The Third Circuit next concluded that a state-created dang
er claim raised a triable issue
of fact in Estate ofSmith v. Marasco, 318 F.3d 497 (3d
Cir. 2003), another case involving a
physical danger. In Smith, with regard to the fourth elem
ent of the state-created danger doctrine,
the Third Circuit concluded that there was sufficient evid
ence to allow a reasonable juror to find
that the defendants, a number of state troopers, place
d the decedent, Robert Smith, “in a
foreseeably dangerous position.” 318 F.3d at 510. The
troopers did so by activating a heavily
armed special emergency response team (the “SERT”)
against Smith, a former police officer and
Vietnam veteran who suffered from Post-Traumatic Stres
s Disorder and coronary heart disease,
in an attempt to flush Smith from his house. Id. at 50102, 510. The SERT entered and cleared
Smith’s home using rocks, tear gas, and flash bangs, whic
h caused Smith to flee to a nearby
densely wooded area. Id. at 503-05. The SERT then
“confine[d Smith) to the densely wooded
area, block[ed) his route of return, reject[ed] the use of
search dogs, [did) not allow family or
friends to communicate with him.
and search[edj only a short distance into the woods.
Id. at 510. Smith eventually died of a heart attack in
the woods. Id. at 504-05. Clearly, the
defendant state troopers exposed Smith to physical dang
er.
.

.,

.

.

The Third Circuit once again concluded that a state
-created danger claim raised a triable
issue of fact in Rivas v. City ofPassaic, 365 F.3d 181
(3d Cir. 2004). Rivas also involved the
creation of a physical danger. 365 F.3d at 185-88.
The defendants, two emergency medical
technicians (“EMTs”), requested police backup to
handle the decedent, an allegedly dangerous
man coming out of a seizure. Id. When the police
officers arrived, the EMTs neglected to
inform them about the decedent’s medical condition
and forfeited control of the situation to
them. Id. Because of the EMTs’ actions, the polic
e officers placed the decedent on a stretcher in
an improper fashion, which eventually caused him
to die of asphyxia. Id. Were it not for the
9

EMTs’ acts, the decedent presumably could have remained
in his apartment for the duration of
his seizure without incident. Id. at 197. Based on these
facts, the Third Circuit concluded that
since a reasonable juror could conclude that the EMT
s had created an opportunity for harm that
would not have otherwise existed, there was a triable
issue of fact as to the fourth element of the
state-created danger doctrine. Id.
In Phillips v. Counly ofAllegheny, another case invo
lving physical danger, the Third
Circuit held that the plaintiffs state-created danger claim
stated a plausible claim for relief
against two of the defendants. 515 F.3d at 243. The
defendants, employees at a 91 Icall center,
supplied a coworker, a disgruntled ex-boyfriend, with
information to help him locate his former
girlfriend and her then-boyfriend, Phillips. Id. at 229.
At the time, the coworker was out on
suspension because he had attempted to locate his form
er girlfriend and Phillips’s whereabouts
using the call center’s computers. Id. at 228. Eventuall
y, the coworker used the information
supplied by the defendants to locate and kill Phillips.
Id. at 229. With regard to the fourth
element of the state-created danger doctrine, the Thir
d Circuit held that the defendants
“undertook affirmative actions which worked to [Phi
llips’s] detriment by exposing him to
danger,” danger that was certainly physical in natu
re. Id. at 237.
The upshot of these precedents is that, in order to satis
fy the fourth element of the statecreated danger doctrine, a plaintiff must allege that
the state defendant affirmatively acted in a
way that exposed her to physical danger. As Shur
5
anda has not alleged that the State Defendants
Plaintiffs argue that a plaintiff need not sustain a
“physical” harm to state a claim under the state-c
reated danger
doctrine. (Pis.’ Opp’n Br. 17-18). Instead, accord
ing to Plaintiffs, “the requirement to sustain a claim
(as it pertains
to ‘harm’) is that the harm must be foreseeable and
fairly direct.” (Id.). “Harm” and “danger” are distinc
t concepts
under the state-created danger doctrine. See Sanfor
d, 456 F.3d at 304-05 (noting that a foreseeable
and fairly direct
harm is the first element of the doctrine while an
affirmative act that creates a danger is the fourth
element of the
doctrine). Although this Court concludes that a plainti
ff must be exposed to physical danger to satisfy
the fourth
element of the state-created danger doctrine, it decline
s to conclude at this time that the plaintiff must
sustain a
physical harm as a result of such exposure. Howev
er, other district courts have drawn that conclusion.
See Holmes
v. Geider, No. 10-6831, 2011 WL 3497009 *2 n.5
(E. D. Pa. Aug. 10, 2011) (“Because [plaintiffj has
not alleged

10

placed her in physical danger, the Court dism
isses her Section 1983 state-created danger
claim
(Count XVII) with prejudice.
The Court also dismisses Shuranda’s New Jers
ey State Constitution state-created danger
claim (Count XIX) with prejudice. In Gon
zales v. City of Camden, the New Jersey Sup
erior
Court, Appellate Division, declined to reco
gnize the existence of a state-created danger
cause of
action under the New Jersey State Constitu
tion insofar as that cause of action would
impose
liability under a broader range of circum
stances than the United States Constitution
. 375 N.J.
Super. 339, 351 (N.J. Super. A.D. 2003).
Thus, because Shuranda’s Section 1983 stat
e-created
danger claim fails to state a claim for the
aforementioned reasons, her New Jersey Sta
te
Constitution state-created danger claim
fails to state a claim, as well.
IV.

CONCLUSION

For the reasons set forth above, the Cou
rt GRANTS the State Defendants’ motion
to
dismiss Counts XVII and XIX of Plaintiffs’
Complaint. Those Counts are dismisse wit
d
h
prejudice.

DATED: fMay, 2014

LINARES
DISTRICT JUDGE

any harm resulted from Defendants’ actio
ns, except for his emotional distress, he
also does not have a claim under
the state-created danger theory); Wright
v. Evans, No. 07-3725, 2009 WL 799946 *10
(D.N.J. Mar. 24, 2009)
(suggesting that a state-created danger claim
is viable only when the plaintiff is physicall
y harmed).

11