HOWARD v. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES et al

Filing 49

MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 8/26/2015. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HARVEY HOWARD, et al.,
Plaintiffs,
Civil Action No. 08-4934 (MAS) (DEA)
v.

MEMORANDUM OPINION

NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES, et al.,
Defendants.

SHIPP, District Judge

Plaintiffs Harvey Howard and Gerald Petrovey ("Plaintiffs") brought this action against
the New Jersey Division of Youth and Family Services ("DYFS"), Clarence E. Whittaker, Jr.
("Whittaker"), and Robert Lease ("Lease") (collectively, "Defendants") asserting that (1) N.J.S.A.
9:6-8.11 1 violates their due process rights by placing their names into the New Jersey Child Abuse
Registry (the "Registry") without a prior opportunity to be heard and (2) Defendants violated 42
U.S.C. § 1983 by failing to timely schedule a dispositional review of the DYFS findings that placed

1

N.J.S.A. 9:6-8.11 provides that, upon receiving a report of child abuse or neglect:
[T]he Division of Child Protection and Permanency, or such another entity in
the Department of Children and Families as may be designated by the
Commissioner of Children and Families to investigate child abuse or neglect,
shall immediately take such action as shall be necessary to insure the safety of
the child .... A representative of the division or other designated entity shall
initiate an investigation within 24 hours of receipt of the report, unless the
division or other entity authorizes a delay based upon the request of a law
enforcement official. The division or other entity shall also, within 72 hours,
forward a report of such matter to the child abuse registry operated by the
division in Trenton.

their names into the Registry. (ECF No. 18.) All claims against DYFS and all claims against
Whittaker and Lease, in their official capacity, were previously dismissed. Whittaker and Lease
("Moving Defendants") now move to dismiss the remaining claim, violation of § 1983 in their
individual capacity, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No.
34.) The Court has carefully considered the parties' submissions and decides the matter without
oral argument pursuant to Local Civil Rule 78.1. For the reasons stated below, the Court grants
Moving Defendants' motion to dismiss.
I.

Background
The procedural history and underlying facts of this matter are well known to the parties

and set forth in this Court's and the Third Circuit's previous decisions. Accordingly, only those
facts relevant to the instant motion will be set forth herein.
A.

Plaintiff Harvey Howard

Plaintiff Harvey Howard ("Howard") was a non-tenured special education teacher at the
Joyce Kilmer Elementary School during the 2005-2006 school year. (Am. Compl. if 11.) On May
18, 2006, there was an altercation between two students in Howard's classroom, and as a result,
Howard, as an alternative to being terminated, resigned. (Id. ifif 12-13.) DYFS conducted an
investigation into the altercation and, on August 11, 2006, without a hearing or plenary proceeding,
found that Howard put the two students at substantial risk of harm, which met the statutory
requirements for child neglect. (Id. ifif 14-15.) The report informed Howard that he could appeal
the finding within twenty days. (Id. if 16.) On or about August 25, 2006, Howard filed an appeal
requesting a dispositional review of the DYFS finding. (Id. if 17.) Plaintiffs allege that Defendant
Whittaker was tasked with scheduling and completing the dispositional review. (Id. if 18.)

2

Approximately two years later, after having heard nothing, Howard's attorney contacted
DYFS to ascertain the status of his dispositional review.

(Id. ,-r 20.) In correspondence dated

August 14, 2008, the Department of Children and Families ("DCF") 2 informed Howard that its
policy had changed due to the large number of requests for appeals and that dispositional reviews
no longer involved in-person or telephonic hearings. Rather, the DCF reviewed the investigative
report and other case information "to determine if they provide sufficient support for the
substantiation." (Id. ,-r 21.) In the correspondence, the DCF further informed Howard that his
dispositional review was completed, affirming DYFS' s finding of substantiated neglect. (Id. ,-r 22.)
Howard was then given the opportunity for an administrative hearing before the Office of
Administrative Law ("O AL"), which Howard requested. (Id. ,-r 21.) On July 31, 2012, the DCF
withdrew the pending appeal from the OAL because it "had modified the finding ... , resulting in
a change from 'substantiated' to 'unfounded'/ 'not substantiated."' (Pis.' Opp'n Br., Ex. G., ECF
No. 37-1.)

B.

Plaintiff Gerald Petrovey

Plaintiff Gerald Petrovey ("Petrovey") was a custodian at Woodbridge High School during
the 2000-2001 school year. (Am. Compl. ,-r 23.) In June 2000, a student at the school tripped
Petrovey, causing him to fall down some stairs and sustain serious injury. The student then kicked
Petrovey, and Petrovey struck the student.

(Id. ,-r 24.)

In March 2001, Petrovey reached a

settlement with the Woodbridge Township Board of Education and resigned. (Id. ,-r 25.) DYFS
conducted an investigation into this altercation and, on January 29, 2001, without a hearing or
plenary proceeding, found that the allegations of physical abuse were substantiated and Petrovey

2

DYFS (now renamed Child Protection and Permanency) is a division of the Department of
Children and Families.
3

put the student at unnecessary and undue risk of significant harm. (Id.

if 26; Am. Compl., Ex. D.)

The report informed Petrovey that he could appeal the finding within twenty days. (Am. Compl.

if 27.)

On or about February 2, 2001, Petrovey filed an appeal requesting a dispositional review

of the DYFS finding. (Id.

if 28.) Plaintiffs allege that Defendant Lease was tasked with scheduling

and completing the dispositional review of the DYFS finding. (Id.

if 29.) More than six years

later, via correspondence dated May 2, 2007, the DCF informed Petrovey that his dispositional
review had been completed, without an in-person or telephone hearing due to a change in DCF
policy, affirming DYFS's finding of substantiated abuse. (Id.

ifif 31-32; Am. Compl., Ex. F.)

Petrovey requested an administrative hearing by the OAL, which was held on May 26,
2011. The administrative law judge ("ALJ") assigned to the appeal found, among other things,
that the DCF's procedures violated Petrovey's due process rights, noting that the six-year delay in
the dispositional review process curtailed his ability to challenge the substantiated charge. See
NJ. Dep't of Children & Families v. G.P., No. A-3147-11T3, 2013 WL 1845360, at *2-3 (N.J.
Super. Ct. App. Div. May 3, 2013). In February 2012, the Commissioner rejected the ALJ's
decision and affirmed the finding of substantiated abuse, holding that "although there was a delay
in the hearing process in this case, there was no due process violation and no risk of deprivation."
Id. at *4. The Commissioner further found that Petrovey' s failure to inquire about or take any
action concerning his appeal indicated he suffered no deprivation as a result of the delay. See id.
at *4-5.
Petrovey appealed the Commissioner's decision to the Appellate Division of the Superior
Court of New Jersey. On May 3, 2013, the Appellate Division affirmed the decision of the
Commissioner finding that there was no pre- or post-substantiation due process violation. The
Appellate Division reasoned that Petrovey received due process because, prior to the finding of

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substantiated abuse, Petrovey was notified of the allegation and was afforded an opportunity to
participate and, after the finding, Petrovey was notified of the finding and was afforded an
opportunity to present information and witnesses at a dispositional hearing.

The Appellate

Division found he failed to do so and noted that Petrovey' s counsel conceded that there was no
prejudice to Petrovey' s right to confront witnesses, present evidence, or have a full and fair
hearing. Id. at n.7. Petrovey then petitioned for certification to the Supreme Court ofNew Jersey,
which was denied. See NJ. Dep't of Children & Families v. G.P., 215 N.J. 485 (2013).
C.

Procedural History

Plaintiffs filed this action in 2008 against DYFS, Whittaker, and Lease. 3 Plaintiffs threecount Amended Complaint alleged that: (1) N.J.S.A. 9:6-8.11 violates Plaintiffs' rights to due
process under the United States and New Jersey Constitutions; (2) N.J.S.A. 9:6-8.11 violates
Plaintiffs' rights to privacy under the United States and New Jersey Constitutions; and
(3) Defendants violated 42 U.S.C. § 1983. (ECF No. 18.) In 2009, Plaintiffs filed a motion for a
preliminary injunction to enjoin the then-ongoing state administrative proceedings (ECF No. 12);
Defendants opposed and filed a cross-motion to dismiss (ECF Nos. 14, 15). The Honorable Joel
A. Pisano, U.S.D.J.,4 denied Plaintiffs' motion and granted Defendants' cross-motion to dismiss.
(Jan. 28, 2010 Order, ECF No. 19.) Judge Pisano found that DFYS was immune from suit under
the Eleventh Amendment because it is not a "person" within the meaning of 42 U.S.C. § 1983 and
abstained from exercising jurisdiction over the remaining claims under Younger v. Harris, 401
U.S. 37 (1971), because of the ongoing administrative proceedings.

3

Plaintiff Howard filed the original complaint against DYFS and Whittaker. The complaint was
later amended to include Petrovey as a plaintiff and Lease as a defendant. (See ECF Nos. 1, 18.)
4

On March 10, 2015, this case was reassigned to the undersigned.
5

Plaintiffs appealed, and the Third Circuit affirmed in part and vacated in part. See Howard
v. N.J. Div. of Youth & Family Servs., 398 F. App'x 807 (3d Cir. 2010). Specifically, the Third
Circuit affirmed the denial of Plaintiffs' motion for a preliminary injunction and the dismissal of
Plaintiffs' claims for injunctive and declarative relief against Defendants under Younger. The
Third Circuit, however, noted that claims for damages and attorney fees should be stayed when
such relief is not available from the ongoing state action. Therefore, the Third Circuit affirmed
the dismissal of Plaintiffs' claim for damages and attorney fees against DYFS, and Whittaker and
Lease, in their official capacities, but vacated the dismissal of Plaintiffs' claim for damages and
attorney fees against Whittaker and Lease, in their individual capacities, and remanded the matter.
Thereafter, Judge Pisano entered an order staying Plaintiffs' claim for damages and
attorney fees until the state administrative proceedings were completed, pursuant to the mandate
of the Third Circuit. (ECF No. 26.) On September 20, 2013, the Court was advised that all state
proceedings had been concluded; accordingly, by order dated September 26, 2013, Judge Pisano
reopened the remaining claim against Whittaker and Lease in their individual capacities. (ECF
No. 28.) Accordingly, the sole claim in this action is Plaintiffs' allegation that Whittaker and
Lease violated § 1983 in their individual capacities.
II.

Legal Standard

Rule 8(a)(2) "requires only 'a short and plain statement of the claim showing that the
pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and
the grounds on which it rests."' Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). On a motion to dismiss for failure to state a claim, a
"defendant bears the burden of showing that no claim has been presented." Hedges v. United
States, 404 F.3d 744, 750 (3d Cir. 2005).

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A district court conducts a three-part analysis when considering a Rule 12(b)( 6) motion.
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). "First, the court must 'tak[e] note of the

elements a plaintiff must plead to state a claim."' Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675
(2009)). Second, the court must accept as true all of a plaintiffs well-pleaded factual allegations
and construe the complaint in the light most favorable to the plaintiff. Fowler v. UPMC Shadyside,
578 F.3d 203, 210-11 (3d Cir. 2009).

The court, however, must disregard any conclusory

allegations proffered in the complaint.

Id.

For example, the court is free to ignore legal

conclusions or factually unsupported accusations that merely state "the-defendant-unlawfullyharmed-me." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Finally, once the wellpleaded facts have been identified and the conclusory allegations ignored, a court must next
"determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has
a 'plausible claim for relief."' Fowler, 578 F.3d at 211 (quoting Iqbal, 556 U.S. at 679). On a
motion to dismiss for failure to state a claim, a "defendant bears the burden of showing that no
claim has been presented." Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005).
A court may properly consider the preclusive effect of a state court decision when raised
as an affirmative defense on a motion to dismiss under Rule 12(b)(6). M & M Stone Co. v.
Pennsylvania, 388 F. App'x 156, 162 (3d Cir. 2010). Furthermore, "[i]n reviewing a Rule 12(b)(6)

motion, it is well-established that a court should 'consider only the allegations in the complaint,
exhibits attached to the complaint, matters of public record, and documents that form the basis of
a claim."' Id. (quoting Lum v. Bank ofAm., 361F.3d217, 221 n. 3 (3d Cir. 2004)). It is axiomatic,
however, that the Court may not consider "matters extraneous to the pleadings" in evaluating such
a motion. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
When the motion raises issue preclusion concerns, the "court must still consider the prior

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adjudication in order to determine whether issue preclusion bars that plaintiffs claims" because "a
prior judicial opinion constitutes a public record of which a court may take judicial notice." M &

M Stone Co., 338 F. App'x at 162. 5

III.

Analysis
A.

Section 1983 Claim Against Defendant Lease

Moving Defendants argue that Plaintiff Petrovey' s § 1983 claim against Lease, in his
individual capacity, for monetary damages should be dismissed because the Court must give
preclusive effect to the Appellate Division's decision that Petrovey's due process rights were not
violated. Moving Defendants argue that the Constitution's Full Faith and Credit Clause has long
been understood to give preclusive effect to state court decisions under the doctrines of both res
judicata, or claim preclusion, and collateral estoppel, or issue preclusion. In response, Plaintiffs
argue that issue preclusion is not applicable because Petrovey was not afforded a full and fair
opportunity to question Defendant Lease regarding the dispositional review and the issue of
Petrovey's due process rights was not essential to the Appellate Division's findings. As the Court
finds that collateral estoppel, or issue preclusion, applies, the Court will not address the parties'
arguments regarding res judicata.
The Supreme Court has clearly held that state court proceedings should be given preclusive
effect in subsequent federal court § 1983 litigation. See Migra v. Warren City Sch. Dist. Bd. of

Educ., 465 U.S. 75, 85-87 (1984) (claim preclusion); Allen v. McCurry, 449 U.S. 90, 97-98 (1980)

5

Plaintiffs incorrectly argues that this motion cannot be decided under Rule 12(b)( 6) because
Moving Defendants are asking the Court to consider documents other than the pleadings and
Moving Defendants have already answered. The Appellate Division decision, relied on by Moving
Defendants, is a public record that the Court may look at on a motion to dismiss under Rule
12(b)(6). See M & M Stone Co., 338 F. App'x at 162. Additionally, Defendant Whittaker filed an
answer to Plaintiffs original complaint. (ECF No. 7.) Neither Moving Defendant has answered
Plaintiffs' Amended Complaint, the operative pleading here.
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(issue preclusion). This is because 28 U.S.C. § 1738 requires federal courts to give the same
preclusive effect to a prior state court decision as the court in the state where the decision was
rendered. Edmundson v. Borough of Kennett Square, 4 F.3d 186, 189 (3d Cir. 1993) ("When a
prior case has been adjudicated in a state court, federal courts are required by 28 U.S.C. § 1738 to
give full faith and credit to the state judgment and, in[§] 1983 cases, apply the same preclusion
rules as would the courts of that state.") (citing Allen, 449 U.S. at 95-105). Under the doctrine of
collateral estoppel, or issue preclusion, a final judgment forecloses "successive litigation of an
issue of fact or law actually litigated and resolved in a valid court determination essential to the
prior judgment, even if the issue recurs in the context of a different claim." New Hampshire v.
Maine, 532 U.S. 742, 748-49 (2001).

Under New Jersey law, the party asserting collateral estoppel to foreclose the re-litigation
of an issue must establish the existence of five conditions:
(1) the issue to be precluded is identical to the issue decided in the prior
proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the
court in the prior proceeding issued a final judgment on the merits; (4) the
determination of the issue was essential to the prior judgment; and (5) the party
against whom the doctrine is asserted was a party to or in privity with a party to
the earlier proceeding.
Olivieri v. Y.MF. Carpet, Inc., 186 N.J. 511, 521 (2006). New Jersey courts no longer require

mutuality of parties in order to apply collateral estoppel; rather, "[a] party precluded from
relitigating an issue with an opposing party ... is also precluded from doing so with another person
unless he lacked full and fair opportunity to litigate the issue in the first action or unless other
circumstances justify affording him an opportunity to relitigate the issue." Zirger v. Gen. Accident
Ins. Co., 144 N.J. 327, 338 (1996) (quoting United Rental Equip. Co. v. Aetna Life & Cas. Ins.
Co., 74 N.J. 92, 101 (1977)).

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It is undisputed that Petrovey was a party to the state court action, which entered a final

judgment on the merits. Instead, Petrovey argues that he did not have a full and fair opportunity
to litigate the issue because the issue was not identical in the prior state court proceeding. Issues
are sufficiently similar to permit collateral estoppel when "the same general legal rules govern
both cases and that the facts of both cases are indistinguishable as measured by those rules."

Suppan v. Dadonna, 203 F.3d 228, 233 (3d Cir. 2000). In this action, Plaintiff Petrovey alleges
that Defendant Lease violated § 1983 by his failure to schedule a dispositional review for six years
in violation of Petrovey' s right to due process. The issue before the Appellate Division was
whether the "DCF violated his federal and State due process rights by not affording him an
opportunity to be heard before and after substantiating abuse and placing his name in the Registry."
G.P., 2013 WL 1845360, at *1.

The issues are identical. The Appellate Division affirmed the Commissioner's decision,
which overturned the ALJ's finding that "there was a post-deprivation violation because the sixyear delay in the dispositional review process severely curtailed G.P. 's ability to effectively
challenge the substantiated abuse." Id. at *3. Specifically, the Appellate Division found that
Petrovey received post-deprivation due process because the "DCF notified G.P. of the
substantiated abuse and afforded him an opportunity to present information and witnesses at a
dispositional hearing. G.P. presented nothing and took no steps to participate in the dispositional
review or inquire of the review's status." Id. at * 5. In sum, the Appellate Division already
concluded that Petrovey' s due process rights were not violated by the six years it took to produce
Petrovey's dispositional review.

This finding does not change because the individual

administrative review officer that was allegedly charged with scheduling and handling the
dispositional review was not a party to the state court proceeding.

10

Here, Petrovey' s § 1983 claim for deprivation of due process by Lease involves the same
general legal rules and the exact same facts as those governing the Appellate Division's
determination that Petrovey suffered a due process violation. Further, Petrovey had a full and fair
opportunity to litigate this issue, as the issue of whether Petrovey' s due process rights were violated
was actually, and extensively, litigated through the OAL adjudication process and through the
appeal to the Appellate Division, where oral argument was heard and briefs were submitted.
Therefore, the Court finds that the issues are identical and were actually litigated in the prior
proceeding.
Petrovey additionally argues that the Appellate Division's determination that his federal
due process rights were not violated was not essential to their judgment. Petrovey appears to
contend that the judgment of the Appellate Division only addressed the issue of the substantiated
abuse. This argument ignores the fact that Petrovey' s appeal from the Commissioner was premised
on his argument that the substantiated abuse should be vacated because the "DCF violated his
federal and State due process rights by not affording him an opportunity to be heard before and
after substantiating abuse and placing his name in the [Registry]." G.P., 2013 WL 1845360, at *1.
Accordingly, Petrovey placed the issue of due process at the forefront of the controversy before
the Appellate Division; if the Appellate Division determined that Petrovey' s due process rights
were violated, reviewing the finding of substantiated abuse would be moot. A determination of
the issue of whether Petrovey' s due process rights were violated was essential to the judgment in
that case, as it resulted in the Court affirming the Commissioner's final decision. See id. at *1-2
(evaluating Petrovey' s due process argument first because the court could not uphold an agency
decision if there was a showing it was unreasonable or lacked fair support in the record).
Therefore, the issue of due process was essential to the prior judgment of the Appellate Division.

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The elements of collateral estoppel being satisfied, the Court concludes that Petrovey is
precluded from relitigating the issue of whether Petrovey' s due process rights were violated.
Because this is a central element to Petrovey' s § 1983 claim against Lease, Petrovey' s claim fails
as a matter of law. Therefore, the Court grants Moving Defendants' motion to dismiss the
Amended Complaint as it relates to Lease with prejudice.
B.

Section 1983 Claim Against Defendant Whittaker

Moving Defendants argue that Plaintiff Howard's § 1983 claim against Whittaker, in his
individual capacity, for monetary damages must be dismissed because Whittaker, as an
administrative review officer, is entitled to qualified immunity. "Although § 1983 purports to
subject '[ e]very person' acting under color of state law to liability for depriving any other person
in the United States of 'rights, privileges, or immunities secured by the Constitution and laws,' the
Supreme Court has recognized that § 1983 was not meant to 'abolish wholesale all common-law
immunities."' Yarris v. Cnty. of Del., 465 F.3d 129, 134-35 (3d Cir. 2006) (quoting Pierson v.
Ray, 386 U.S. 547, 554 (1967)). Qualified immunity "protects government officials [performing

discretionary functions] 'from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known."' Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). The rule balances two interests: (1) "the need to hold public officials accountable
when they exercise power irresponsibly" and (2) "the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably." Id. A qualified immunity
analysis requires consideration of two concepts. "First, a court must decide whether the facts that
a plaintiff has alleged ... make out a violation of a constitutional right." Id. "Second, if the
plaintiff has satisfied this first step, the court must decide whether the right at issue was 'clearly

12

established' at the time of defendant's alleged misconduct." Id. The second prong is only met
when it would be "clear to a reasonable officer that his conduct was unlawful in the situation he
confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001). Although the inquiry is normally
considered in that order, it need not be. Pearson, 555 U.S. at 236.
Here, as the second prong of the analysis is clearly not met, the Court will only analyze
that prong. Howard alleges that Whittaker violated his due process rights by taking approximately
two years to complete his dispositional review. (Am. Compl. -if-if 54-55.) First, sufficient precedent
does not exist that would have put Whittaker on notice that his alleged conduct was prohibited by
the Constitution. In other words, there is no clearly established law that a two-year delay in
adjudicating a post-deprivation review would violate due process. The Third Circuit has found
that an administrative review process that extended nearly four years violated due process, but has
rejected that a twenty-month delay in adjudication and a two-and-a-half year delay in adjudication
were sufficient to establish a violation of due process. Compare Kelly v. R.R. Ret. Bd., 625 F.2d
486, 490 (3d Cir. 1980), with Hill v. City ofScranton, 411F.3d118, 134 (3d Cir. 2005), and Ritter
v. Cohen, 797 F.2d 119, 124 (3d Cir. 1986). 6

Additionally, neither Plaintiffs nor Moving Defendants have pointed to any New Jersey
statute or precedent that establishes a time period in which a post-deprivation hearing must be held
that would allow for an inference that an agency official would know that a two-year delay in the
administrative review process violates an individual's due process rights.

See R.I., Inc. v.

McCarthy, 483 F. App'x 745, 748 (3d Cir. 2012) (explaining that compliance with state law is

6

Plaintiffs' reliance on In re Allegations of Sexual Abuse at East Park High, 314 N.J. Super. 149
(App. Div. 1998), and Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), to
support their argument that there was an applicable, clearly established law is misplaced. These
cases concern violations of due process due to specific policies and procedures in New Jersey and
Ohio, not an individual review officer's handling and processing of dispositional reviews.
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"highly indicative of entitlement to qualified immunity"). Likewise, there are no allegations that
allow for an inference that Whittaker somehow knowingly violated the law by intentionally
holding up the review process. See Malley, 475 U.S. at 341 (explaining that qualified immunity
protects all but "those who knowingly violate the law"). The only inference that can fairly be
drawn from the Amended Complaint is that the delay was caused by a change to the administrative
appeal process by the DCF due to the large number of appeals. (See Am. Compl. ~ 21.) There are
no allegations that Howard inquired about the status of his appeal between August 2006 and
August 2008. (See id.

at~~

17, 19, 21 (asserting that counsel for Howard inquired about the status

of review in August 2008).) Therefore, the Court finds that it would not have been clear to a
reasonable officer that a two-year delay in the administrative process under the facts alleged in the
Amended Complaint was unlawful.
Accordingly, Whittaker is entitled to qualified immunity, and Defendants' motion to
dismiss on account of qualified immunity is granted.
IV.

Conclusion

For the reasons set forth above, Moving Defendants' motion to dismiss is granted. An
order consistent with this Opinion will be entered.

,~

Dated: August~~~'; 2015

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