FERRER et al v. VON PIER et al

Filing 82

OPINION. Signed by Judge Esther Salas on 11/5/19. (lag, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HECTOR FERRER and DAVID FERRER,
by and through his legal guardian Hector
Ferrer,
Plaintiffs,

Civil Action No. 18-0254 (ES) (CLW)

v.

OPINION

LISA VON PIER, et al.,
Defendants.

SALAS, DISTRICT JUDGE
Before the Court are three motions to dismiss filed by defendant Cathy Tamburello (D.E.
No. 48); defendants Carmen Diaz-Petti, Christine Norbut Beyer, Renetta Aikens, Yesnia Seda, and
Hans Ayala (D.E. No. 50); and defendants Vincent McHale, Barbara Pinsak, and Teaneck Board
of Education (D.E. No. 52) (collectively, “Defendants”). All three motions seek to dismiss
plaintiffs Hector Ferrer and David Ferrer’s (“Plaintiffs”) amended complaint (“Amended
Complaint”) (D.E. No. 47 (“Am. Compl.”)). The Court has considered the parties’ submissions
and decides these matters without oral arguments under Federal Rule of Civil Procedure 78(b).
For the following reasons, the Court GRANTS Defendants’ motions to dismiss.
I.

BACKGROUND
As the Court writes primarily for the parties, only a brief procedural history is provided.

Plaintiffs filed this action on January 8, 2018, alleging that Defendants violated their rights
protected under the First, Fourth, Fifth, and Fourteenth Amendments of the United States
Constitution, as well as their rights protected under corresponding provisions of the New Jersey

Civil Rights Act. (See D.E. No. 1). Subsequently, Defendants filed their respective motions to
dismiss the original complaint. (D.E. Nos. 8, 14, & 23).
The Court held a hearing on November 29, 2018, and issued an Order on December 3,
2018, granting Defendants’ motions to dismiss the original complaint. (D.E. Nos. 43 & 46).
Specifically, the Court’s December 3, 2018 Order dismissed with prejudice claims based on the
Fifth Amendment of the Constitution against all Defendants, as well as claims based on the Fourth
Amendment against Tamburello, Pinsak, McHale, and the Teaneck Board of Education. (D.E.
No. 46). Plaintiffs’ remaining claims were dismissed without prejudice. (Id.).
Plaintiffs filed their Amended Complaint on January 2, 2019 (D.E. No. 47) 1, followed by
Defendants’ instant motions to dismiss the Amended Complaint (D.E. Nos. 48, 50, & 52).
II.

LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully,” id., and the burden is on the defendant to show that the plaintiff has not stated a
facially plausible claim, see Davis v. Wells Fargo, 824 F.3d 333, 349 (3d Cir. 2016).
Determining whether there is “a plausible claim for relief will . . . be a context-specific task

1

As discussed with more details in Section III(C), Plaintiffs’ Amended Complaint replaced Lisa von Pier
with Carmen Diaz-Petti, and replaced Allison Blake with Christine Norbut Beyer. (Cf. D.E. No. 1 ¶¶ 3–4 with Am.
Compl. ¶¶ 3–4).

2

that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal,
556 U.S. at 679. “All allegations in the complaint must be accepted as true, and the plaintiff must
be given the benefit of every favorable inference to be drawn therefrom.” Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011). But a court does not accept as true the complaint’s legal conclusions.
Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept as true all the allegations contained
in a complaint is inapplicable to legal conclusions.”). In the Third Circuit, courts’ inquiry into a
Rule 12(b)(6) motion is “normally broken into three parts: (1) identifying the elements of the claim,
(2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the wellpleaded components of the complaint and evaluating whether all of the elements identified in part
one of the inquiry are sufficiently alleged.” Malleus, 641 F.3d at 563.
Finally, “[A] court must consider only the complaint, exhibits attached to the complaint,
matters of public record, as well as undisputedly authentic documents if the complainant’s claims
are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010); see also
Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (“In evaluating a motion to
dismiss, we may consider documents that are attached to or submitted with the complaint, and any
matters incorporated by reference or integral to the claim, items subject to judicial notice, matters
of public record, orders, and items appearing in the record of the case.”) (citations and internal
quotation marks omitted).
III.

ANALYSIS
Plaintiffs assert the following claims in their Amended Complaint: (i) First Count: § 1983

claims against Ayala, Seda, Aikens (collectively, the “Caseworker Defendants”), Tamburello, and
Pinsak for violating the Fourth and Fourteenth Amendments (Am. Compl. ¶¶ 108–15); (ii) Second
Count: § 1983 claims against Teaneck Board of Education, Pinsak (collectively, the “Teaneck

3

Defendants”), and Tamburello for violating the First Amendment (id. ¶¶ 116–23); (iii) Third
Count: § 1983 claims against Diaz-Petti and Beyer for violating the Due Process Clauses of the
Fourth and Fourteenth Amendments (id. ¶¶ 124–31) 2; and (iv) Fourth Count: claims against the
Caseworker Defendants, the Teaneck Defendants, and Tamburello for violating the New Jersey
Civil Rights Act (id. ¶¶ 132–34).
As an initial matter, Plaintiffs’ § 1983 claims against Tamburello and Pinsak based on the
Fourth Amendment were dismissed with prejudice by the Court’s December 3, 2018 Order. (D.E.
Nos. 46 & 48). Because Plaintiffs do not dispute this issue (D.E. No. 68 at 22; D.E. No. 69 at 18),
these claims are dismissed.
Although the “Parties” section of the Amended Complaint names Vincent McHale as a
defendant, Plaintiffs assert no claim against him and do not make any allegations about him. (See
Am. Compl. ¶ 10). In fact, Vincent McHale was not even included in the case caption of the
Amended Complaint. Because no cause of action is asserted against Vincent McHale and the
Amended Complaint clearly does not contain sufficient factual allegations to allow the Court to
draw any reasonable inference that a claim against him is “plausible on its face,” Vincent McHale
is dismissed as a defendant. See Twombly, 550 U.S. at 570.
The Court now addresses the remaining claims count-by-count.
A. First Count
Plaintiffs claim that their rights to family integrity protected under the Due Process Clause
of the Fourteenth Amendment were violated by Tamburello and Pinsak through the “investigation,

2

The header of Third Count in the Amended Complaint includes claims based on the Fourth and Fourteenth
Amendments, and is titled “42 U.S.C.A. §1983 - VIOLATION OF FOURTH AND FOURTEENTH
AMENDMENT RIGHTS BY DEFENDANTS CARMEN DIAZ-PETTI AND CHRISTINE NORBUT BEYER.”
(emphasis added). However, the paragraphs underneath the header do not include any claim based on the Fourth
Amendment. For purposes of completeness, the Court assumes that Third Count included claims based on the
Fourth and the Fourteenth Amendments against Carmen Diaz-Petti and Christine Norbut Beyer.

4

detention and interrogation without credible evidence of child abuse and neglect.” (Am. Compl.
¶¶ 108–115). In response, Tamburello and Pinsak argue, inter alias, that Plaintiffs fail to plead
sufficient facts to support a conspiracy claim under 42 U.S.C. § 1985(3), which is the only
colorable claim under the Fourteenth Amendment that is seemingly asserted against Tamburello
and Pinsak. (D.E. No. 48-2 at 14–15; D.E. No. 52-7 at 20–21). The Court agrees with the
defendants. Because the Court finds this argument dispositive as to Plaintiffs’ claims against
Tamburello and Pansak based on the Fourteenth Amendment, the Court will not reach the
defendants’ other arguments.
Plaintiffs’ counsel conceded during oral argument that Tamburello and Pinsak did not
conduct the investigation, detention, or interrogation of Plaintiffs. (See, e.g., D.E. No. 49 at 43:14–
18). Instead, Plaintiffs allege that Tamburello and Pansak “caused a child protective services
investigation to be instituted” by, as to Tamburello, calling the Department of Child Protection
and Permanency (the “DCPP”) to report the educational neglect, and, as to both defendants,
making statements to the DCPP during its investigation. (See Am. Compl. ¶ 110). Plaintiffs allege
that Tamburello and Pansak caused the DCPP investigation despite knowing that David Ferrer was
beyond the age of compulsory education, and thus not subject to an investigation for educational
neglect. 3 (Id.). Plaintiffs do not assert, nor could they, that the mere call placed by Tamburello to
the DCPP, or the subsequent statements Tamburello and Pinsak made to the DCPP, is independent
basis for violating the Fourteenth Amendment, regardless of whether the subsequent investigation,
detention, or interrogation was conducted. Rather, Plaintiffs alleged that “these Defendants

3
Plaintiffs also argue, but improperly in their opposition brief, that Tamburello and Pinsak “fabricated
evidence in conspiracy . . . for the purposes of depriving Plaintiffs of their [c]onstitutional [r]ights to the integrity of
their family.” (D.E. No. 68 at 30–31; D.E. No. 69 at 32). Not only is this allegation not raised in the Amended
Complaint, but, as the Court discusses below, even assuming the allegation is true and properly alleged in the Amended
Complaint, Plaintiffs still fail to set forth facts that Defendants conspired for the purpose of depriving Plaintiffs’
constitutional rights.

5

conspired to institute an investigation against the Plaintiffs,” and violated their rights protected
under the Fourteenth Amendment. (Am. Compl. ¶ 110).
In order to properly plead a conspiracy claim under § 1985(3), a plaintiff must set forth
facts that plausibly allege that defendants had “an understanding or agreement to conspire” against
the plaintiff. Startzell v. City of Phila., 533 F.3d 183, 205 (3d Cir. 2008). An agreement means
that there must be a “meeting of the minds.” Id. Here, the Amended Complaint falls woefully
short of meeting the standard under Iqbal and Twombly and did not plead any factual allegation
that an actual agreement existed among Defendants, or any subset of Defendants, for the purpose
of depriving Plaintiffs of their constitutional rights. Plaintiffs’ Fourteen Amendment claims are
thus dismissed against Tamburello and Pinsak.
As to the claims against the Caseworker Defendants, Plaintiffs allege that (i) the
Caseworker Defendants violated Plaintiffs’ rights to family integrity protected under the
Fourteenth Amendments by conducting a DCPP investigation for educational neglect while
knowing that the child was beyond the age of compulsory education (Am. Compl. ¶ 110); (ii)
Plaintiffs’ rights to procedural due process were violated when the Caseworker Defendants failed
to advice Plaintiffs of their rights under the Fourth and Fourteenth Amendments during the
educational neglect investigation (id. ¶ 113); (iii) Plaintiffs’ rights to procedural due process were
violated when the DCPP failed to notify Hector Ferrer of his right to appeal the DCPP’s
administrative findings (id. ¶ 114).
The Caseworker Defendants argue, inter alia, that they are entitled to qualified immunity,
which shields them from liability even if they violated Plaintiffs’ constitutional rights. (See D.E.
No. 50-1 at 18–21). Specifically, the Caseworker Defendants argue that Plaintiffs fail to

6

demonstrate that the constitutionally protected rights that were allegedly violated were clearly
established so as to put the Caseworker Defendants on notice. (See id. at 18).
Qualified immunity is not just immunity from liability, but also “immunity from suit.”
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). It protects all government officials “but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
Whether a defendant is entitled to qualified immunity is a two-prong analysis: a court must
determine if the plaintiff sufficiently alleges that (i) the defendant “violated a constitutional right,”
and (ii) “the right that was violated was clearly established.” Curley v. Klem, 499 F.3d 199, 206–
07 (3d Cir. 2007) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001). In other words, “[u]nless
the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading
qualified immunity is entitled to dismissal before the commencement of discovery.” Behrens v.
Pelletier, 516 U.S. 299, 306 (1996) (quoting Mitchell, 472 U.S. at 526). Moreover, courts should
exercise “sound discretion in deciding which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the particular case at hand.” Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
Accepting the factual allegations in the Amended Complaint as true, the crux of Plaintiffs’
argument is this: when the Caseworker Defendants pursued the investigation, the lawsuit, and the
interrogation against Plaintiffs while knowing that David Ferrer was beyond the age of compulsory
education, the Caseworker Defendants violated the “clearly established” state law and DCPP’s
own policy, or at least acted without authority under the state law. (See, e.g., D.E. No. 67 at 23).
This, Plaintiffs allege, constitutes investigation “without reasonable suspicion” under Croft v.
Westmoreland County Children & Youth Services, and is a violation of their “clearly established”
rights to family integrity protected under the Fourth and Fourteenth Amendments. 103 F.3d 1123,

7

1126 (3d Cir. 1997) (citing Lehr v. Robertson, 463 U.S. 248, 254–56 (1983); (see D.E. No. 67 at
4).
Plaintiffs are wrong on two grounds. First, to overcome qualified immunity defense, the
“clearly established right must be the federal right on which the claim for relief is based.” Doe v.
Delie, 257 F.3d 309, 318–19 (3d Cir. 2001) (rejecting the prisoner-plaintiff’s argument that “prison
officials could not have been acting ‘reasonably’ when they were in direct violation of a clear
statute” and finding qualified immunity for the prison officials). “Officials sued for constitutional
violations do not lose their qualified immunity merely because their conduct violates some
statutory or administrative provision.” Davis v. Scherer, 468 U.S. 183, 194 (1984). This is because
“[t]hese officials are subject to a plethora of rules, often so voluminous, ambiguous, and
contradictory, and in such flux that officials can only comply with or enforce them selectively.”
Davis, 468 U.S. at 196 (citing PETER H. SCHUCK, SUING GOVERNMENT 66 (1983)). It is, therefore,
irrelevant whether New Jersey law clearly establishes the age limit for compulsory education or
educational neglect. The Caseworker Defendants do not forfeit qualified immunity from suit
unless they violated a clearly established federal law when they conducted the investigation on
Plaintiffs. See Doe, 257 F.3d at 319.
Second, the allegedly violated constitutional right must be “‘clearly established’ in a more
particularized, and hence more relevant, sense,” so as to give the Caseworker Defendants sufficient
notice that what they were doing violates that right. See Anderson v. Creighton, 483 U.S. 635, 640
(1987). Plaintiffs appear to allege that the fundamental constitutional rights at issue are the right
“to be free from child abuse and neglect investigations absent credible evidence of imminent abuse
and neglect.” (Am. Compl. at 17 (ECF pagination) 4; see also D.E. No. 67 at 38). This articulation

4

The quoted language appears in the header under “First Count” and nowhere else. The Court notes that
Plaintiffs’ counsel fails to follow the Court’s explicit instruction to paginate the Amended Complaint. (D.E. No. 49

8

of the “clearly established right” is too broad for purposes of qualified immunity analysis. See
Mammaro v. New Jersey Div. of Child Prot. & Permanency, 814 F.3d 164, 169 (3d Cir. 2016), as
amended (Mar. 21, 2016).
In Mammaro, the parent-plaintiff similarly relied on Croft and contended that she had a
clearly established right “to be free from the temporary removal of her child unless there is some
reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been
abused or is in imminent danger of abuse.” 814 F.3d at 169 (citing Croft, 103 F.3d at 1126). The
Third Circuit held that “[t]his definition is too broad for purposes of qualified immunity.” Id.
Instead, the plaintiff “must show that the law was so well established at that time a reasonable
caseworker would have understood that temporarily removing a child in those circumstances
would violate substantive due process.” Id. at 170. In concluding that “there was no consensus of
authority” that the DCPP’s temporary removal of the child violated the substantive due process,
the Third Circuit based its holding on that “the [Supreme] Court has never found a substantive due
process violation when state agencies temporarily remove a child, whatever the circumstances of
the removal.” Id.
Here, too, Plaintiffs cite no case, and the Court has found none, where the Supreme Court
or the Third Circuit held that conducting a child neglect investigation is a violation of the Fourth
or the Fourteenth Amendment, regardless of the circumstances that led to the investigation. It thus
cannot be said that Caseworker Defendants were put on notice that their conduct was
constitutionally prohibited at the time they conducted the child educational neglect investigation
against Plaintiffs.

at 95:1–3) (“You are going to, obviously, as an officer of the court, make sure you follow our instructions, which is .
. . first of all, complaints are to be paginated.”).

9

In the same vein, Plaintiffs fail to allege that the law is clearly established that they are
entitled to a “Miranda type” warning in child protective services investigation or a notification as
to the right to appeal the DCPP’s administrative finding. Indeed, Plaintiffs’ counsel admitted
during oral argument that “there’s no Miranda case that applies to . . . the child protective services
caseworkers.” (D.E. No. 49 at 82: 4–7). Plaintiffs also cited no law, federal or state, requiring the
caseworkers to notify Hector Ferrer of his right to appeal the DCPP’s administrative finding.
Absent any legal support, Plaintiffs fail to show that the Caseworker violated any clearly
established rights protected under the Due Process Clauses of the Fourth and Fourteenth
Amendments.
As such, all claims under First Count are dismissed.
B. Second Count
Plaintiffs assert First Amendment retaliation claims against the Teaneck Defendants and
Tamburello. Specifically, Plaintiffs allege that the Teaneck Defendants retaliated against Plaintiffs
and “acted with deliberate indifference by instituting a policy” that no individual busing will be
provided to students, which “would only affect David Ferrer.” (Am. Compl. ¶ 121). As to Pinsak,
who is among the Teaneck Defendants, Plaintiffs’ allegation is seemingly based on additional
retaliatory conduct that Pinsak “contributed to the unconstitutional investigation for Educational
Neglect” by making false statements to the DCPP. (Id. ¶ 122). Finally, as to Tamburello, the
allegedly retaliatory conduct was that she “referred Hector Ferrer for Educational Neglect.” (Id.
¶ 123). These claims are dismissed for failure to state a claim that is plausible on its face. See
Iqbal at 678.
To plead a First Amendment retaliation claim, a plaintiff must present facts sufficient to
plausibly show three elements: “(1) constitutionally protected conduct, (2) retaliatory action

10

sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3)
a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas
v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006). With regard to the third element, the requirement
is a “but-for” causation. Mirabella v. Villard, 853 F.3d 641, 651 (3d Cir. 2017) (citing Hartman
v. Moore, 547 U.S. 250, 256 (2006)). Ways to allege “but-for” causation include: “(1) an unusually
suggestive temporal proximity between the protected activity and the allegedly retaliatory action;
(2) a pattern of antagonism coupled with timing; or (3) other evidence gleaned from the record as
a whole.” Kriss v. Fayette Cty., 504 F. App'x 182, 188 (3d Cir. 2012) (internal quotation marks
omitted). Plaintiffs fail to allege, let along demonstrate, any theory to support the inference of
“but-for” causation.
The Amended Complaint alleged the following events that seemingly triggered the
retaliation from the Teaneck Defendants: (i) Hector Ferrer’s assertions, made at various public
meetings held in Clifton and Teaneck from 2013 to 2015, that the Teaneck school district, by and
through its attorneys, was engaged in wrongful conduct(see Am. Compl. ¶¶ 22–23 & 121); (ii) the
litigation where the Teaneck Board of Education challenged the residency of Plaintiffs (see id.
¶¶ 28 & 121); and (iii) the litigation between Hector Ferrer and the Teaneck Board of Education
at or around the start of the 2015 to 2016 school year regarding the Teaneck Board of Education’s
decision to terminate all transportation for David Ferrer (see id. ¶¶ 32 & 121). 5
During the oral argument held on November 29, 2018, the Court discussed the original
complaint with Plaintiffs’ counsel in painstaking detail and pointed out its deficiencies claim-by-

5

Throughout their Amended Complaint, Plaintiffs fail to follow the Court’s explicit instruction to include in
their Amended Complaint a “recitation of [ ] paragraphs” that lend factual supports to the various elements of each
claim. (See D.E. No. 49 at 94:20–95:23) (stating “I’m going to have counts against particular defendants, and I’m
going to have the recitation of which paragraphs are applicable that supports the various elements of each claim.”).
The Court, therefore, can only speculate as to the factual bases for each of the claims asserted, which itself is sufficient
ground for dismissal. See Tombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above
the speculative level on the assumption that all of the complaint's allegations are true.”).

11

claim. With regard to the First Amendment claims, the Court noted that the original complaint fell
woefully short of establishing a “but-for” causation between Plaintiffs’ constitutionally protected
activities and the allegedly retaliatory act. (See, e.g., D.E. No. 49 at 13:21–31:13). For example,
the Court warned Plaintiffs that the original complaint did not explain how the speech Hector
Ferrer made at a Clifton townhall meeting in 2014 is “even related to the September 16th event”
that occurred a year later. (See Id. 13:14–15:3; 28:7–16). The original complaint also failed to
even assert that the defendants were aware of the speech that occurred in Clifton. (Id. at 17:11–
18:10; 27:16–28:5).
None of these deficiencies were cured in the Amended Complaint 6 and thus, Plaintiffs still
do not allege “the elements of retaliatory animus as the cause of injury.” See Mirabella v. Villard,
853 F.3d 641, 651 (3d Cir. 2017) (“Any plaintiff charging official retaliatory action must prove
the elements of retaliatory animus as the cause of injury, and the defendant will have the
opportunity to respond to a prima facie case by showing that the action would have been taken
anyway, independently of any retaliatory animus.”) (quoting Hartman v. Moore, 547 U.S. 250,
260–61 (2006)) (internal quotation marks and alterations omitted). The majority of Hector Ferrer’s
public complaints regarding the Teaneck Board of Education and its lawyers occurred more than
a year before David Ferrer was placed on the school bus with four other students. (See id. ¶¶ 22–
23 & 36). The most recent public speech allegedly occurred in January, 2015, eight months before
the September 16th incident. (Id. at 22). Similarly, it is unclear when the litigation regarding
Plaintiffs’ residency started and how it caused the allegedly retaliatory act. (See id. ¶ 28) (alleging

6

For example, the Court specifically suggested that Plaintiffs’ counsel should include allegations that the
Teaneck Defendants were aware of the speech Hector Ferrer made in Clifton. (D.E. No. 49 at 27:25–28:8) (“The
Court: So I assume, at some point, in a future amended complaint you’re going to say that based on widely-read
publication, it goes without saying that members of the Teaneck group read it. Or you’re going to say something to
the extent that people from The Machado Law Group shared with them, upon information and belief, right? Mr.
Rosellini: Yes.”). No such amendment was made in the Amended Complaint.

12

merely that the litigation “was pending in September of 2015 and is still ongoing”). The Amended
Complaint thus fails to allege how these two events could plausibly support an unusually
suggestive temporal proximity and Plaintiffs do not allege causation under other theories. See
Kriss, 504 F. App’x at 188 (noting that the Court has found “no case where a gap of more than
even two months was found to be unusually suggestive”).
The only event that is arguably within temporal proximity is the litigation before the
administrative law judge that occurred shortly before the 2015 to 2016 school year started. (Am.
Compl. ¶ 32). However, that litigation was initiated because the school decided to cancel David
Ferrer’s bus altogether, which Plaintiffs do not argue is retaliatory. (See id. ¶¶ 32 & 121 (stating
that the allegedly retaliatory act is the institution of “a policy that [Teaneck Board of Education]
would not provide individual busing to students, a policy which would only affect David Ferrer”).
Plaintiffs thus fail to explain how the lawsuit is a but-for causation of the Teaneck Defendants’
decision to bus David Ferrer with other students, when the Teaneck Defendants’ non-retaliatory
plan before the lawsuit was more intrusive. See Kriss, 504 F. App’x at 188 (finding that “insofar
as [the allegedly retaliatory] activities occurred before [the lawsuit], they are at odds with the
notion that Defendants retaliated against [the plaintiffs] because they filed their lawsuit”).
As to the First Amendment retaliation claims against Pinsak based on her contribution to
the “unconstitutional investigation . . . by making false statements to [DCPP],” Plaintiffs fail to
allege what protected activities triggered the allegedly retaliatory actions. (See Am. Compl.
¶ 121). To the extent Plaintiffs allege that the same “public complaints” and “litigations” discussed
above triggered retaliatory action from Pinsak, the claim, too, fails to allege a but-for causation
between Plaintiffs constitutionally protected activities and the allegedly retaliatory act. See Kriss,
504 F. App’x at 188.

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Similarly, as to the First Amendment retaliation claims against Tamburello, it is unclear
what “lawful complaints against New Bridges School” the Amended Complaint references. (Am.
Compl. ¶ 123). Because the Court is unable to ascertain whether Plaintiffs engaged in activities
protected by the First Amendment and whether those activities caused Tamburello’s allegedly
retaliatory act, the claims against Tamburello is dismissed.
The Second Count based on the First Amendment violations is thus dismissed in its entirety
against all defendants under Federal Rule of Civil Procedure 12(b)(6). See Iqbal, 556 U.S. at 678.
C. Third Count
Plaintiffs assert § 1983 claims against Diaz-Petti and Beyer for violating Plaintiffs’ rights
to due process protected under the Fourth and Fourteenth Amendments of the Constitution. (See
Am. Comp. ¶¶ 124–31). Because the claims against Diaz-Petti and Beyer are merely based on
their managerial or supervisory roles and are not supported by any specific facts, they fail to meet
the pleading standard under Twombly and Iqbal. Twombly, 550 U.S. 544; Iqbal, 556 U.S. 662.
Indeed, the allegations dismissed in Iqbal resemble the allegations against Diaz-Petti and
Beyer. Specifically, Iqbal sued the then-Attorney General Ashcroft and the then-FBI Director
Muller for the conduct of FBI agents because Ashcroft and Mueller “each knew of, condoned, and
willfully and maliciously agreed to subject [Iqbal] to harsh conditions of confinement as a matter
of policy.” Iqbal, 556 U.S. at 669. In fact, Iqbal’s factual allegations were more detailed than the
instant Amended Complaint, because Iqbal alleged the roles Ashcroft and Mueller played in
creating and executing the policy. Id. at 681. Specifically, Iqbal alleged that Ashcroft was that
policy’s “principal architect” and that “Mueller was instrumental” in its adoption and execution.
Id. at 68081. The Supreme Court nevertheless dismissed the claims against Ashcroft and Mueller
because they were “bare assertions” that are “conclusory and not entitled to be assumed true.” Id.

14

at 681; see also Kriss, 504 F. App’x. at 187 (dismissing First Amendment retaliation claims against
the county commissioner and the director of zoning, where the claims were based merely on the
allegation that “they directed others to engage in unconstitutional behavior”).
Here, the claim asserted against Diaz-Petti is based on her official capacity as Director of
the DCPP (id. ¶¶ 3 & 125); and the same claim against Beyer is based on her official capacity as
the Commissioner of Department of Children and Families (the “DCP”) (id. ¶¶ 4 & 125). Plaintiffs
allege that Diaz-Petti and Beyer “established through tacit authorization or explicit instruction a
policy or custom of allowing [DCPP] workers to commit abuse of process.” (Am. Compl. ¶ 128).
Yet the Amended Complaint is devoid of any supporting factual allegations as to the existence of
such “policy or custom,” or Diaz-Petti’s and Beyer’s involvement regarding such policy or custom.
It is indeed telling that Plaintiffs’ original complaint asserted the same claims against the former
Director of the DCPP, Lisa Von Pier, and the former Commissioner of the DCP, Allison Blake,
and similarly alleged no specific supporting facts. (D.E. No. 1 ¶¶ 96–103). Absent any supporting
facts, Plaintiffs’ claims against Diaz-Petti and Beyer are insufficient and is dismissed under the
Federal Rule of Civil Procedural 12(b)(6). See Iqbal, 556 U.S. at 678.
D. Fourth Count
Because the Court dismisses all federal claims, the Court declines to exercise supplemental
jurisdiction over any intended state law claims. See 28 U.S.C. § 1367(c)(3) (stating that a district
court may decline to exercise supplemental jurisdiction over a claim if the court “has dismissed all
claims over which it has original jurisdiction”).
IV.

CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss are GRANTED. As noted

above, despite the fact that the Court spent over two hours discussing with Plaintiffs the obvious

15

deficiencies in the original complaint (D.E. Nos. 43 & 49), and that the Court placed Plaintiffs on
notice that this would be their final bite at the proverbial apple (D.E. No. 46), Plaintiffs’ Amended
Complaint did little to address the pleading deficiencies. As such, the Court finds that further
amendment would not only be futile, but would needlessly waste scarce judicial resources and
unfairly burden Defendants. See, e.g., Brown v. Cantineri, No. 14-6391, 2017 WL 481467, at *2
(D.N.J. Feb. 6, 2017) (“Because I have already given [Plaintiff] one opportunity to amend, this
dismissal is with prejudice.”); accord Foster v. Raleigh, 445 F. App’x 458, 460 (3d Cir. 2011);
Venditto v. Vivint, Inc., No. 14-4357, 2015 WL 926203, at *15 (D.N.J. Mar. 2, 2015); Prudential
Ins. Co. of Am. v. Bank of Am., Nat’l Ass’n, No. 13-1586, 2015 WL 502039, at *7 (D.N.J. Feb. 5,
2015). Accordingly, Plaintiffs’ Amended Complaint is dismissed with prejudice. An appropriate
Order accompanies this Opinion.
s/Esther Salas
Esther Salas, U.S.D.J.

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