ESTATE OF LYDIA JOY PERRY et al v. SLOAN et al
Filing
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OPINION AND ORDER granting in part and denying in part 22 Motion to Dismiss; that the claims against Defts State of New Jersey and Dept of Human Services, Division of Developmental Disabilities contained in the First, Second, Third and Seventh Counts are DISMISSED; that the claims against Deft Velez in her official capacity contained in the First, Second, Third and Seventh Counts are DISMISSED. Signed by Judge Anne E. Thompson on 5/31/2011. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ESTATE OF LYDIA JOY PERRY, deceased,
by Vivian KALE, co-Administratrix ad
Prosequendum of the Estate of Lydia Joy
Perry, and Janet FANDEL, co-Administratrix
ad Prosequendum of the Estate of Lydia Joy
Perry,
Plaintiff,
Civ. No. 10-4646 (AET)
OPINION & ORDER
v.
Debra SLOAN, et al.,
Defendants.
THOMPSON, U.S.D.J.
I. INTRODUCTION
This matter comes before the Court upon the Motion to Dismiss [docket # 22] filed by
Defendants State of New Jersey, Department of Human Services, Division of Developmental
Disabilities (DHS-DDD), and Jennifer Velez (collectively, “State Defendants”). Plaintiff has
opposed the motion [28]. The Court has decided the matter upon consideration of the parties’
submissions, without holding oral argument, pursuant to Fed. R. Civ. P. 78(b). For the reasons
given below, the motion is granted in part and denied in part.
II. BACKGROUND 1
Plaintiff in this case is the Estate of Lydia Joy Perry, who died intestate. Perry was born
in 1941 with a developmental disability. (Compl. ¶ 6) [1]. In 1985, she was placed in the
custody of the New Jersey Department of Human Services, Division of Developmental
1
The following facts are taken from Plaintiff’s Complaint [1] and accepted as true for purposes of this
motion to dismiss. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
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Disabilities (DHS-DDD). (Id.) In 2006, she was transferred to a Community Care residence,
operated out of the home of Defendant Debra Sloan under contract with the State of New Jersey.
(Id. at ¶ 23.) Sloan was highly recommended by Defendant Bridget Grimes, who worked as a
Habilitation Planning Coordinator at DHS-DDD and served as Perry’s case-manager. (Id. at ¶
24.) Plaintiff alleges that Grimes took active steps to keep Perry in Sloan’s home and to
persuade Perry’s family members to keep Plaintiff there. (Id.)
During her residency in Sloan’s home, Perry was subjected to abuse, neglect, harassment
and other mistreatment. (Id. at ¶ 25.) Sloan and Grimes were indicted in 2009 for various
crimes arising out of their treatment of Perry and two other disabled women in Sloan’s care. (Id.
at ¶ 26.) DHS-DDD later substantiated the allegations that Sloan and Grimes had mistreated and
denied adequate care to Perry and, particularly, that the Defendants had failed to provide Perry
with a needed colonoscopy. (Id. at ¶ 30.) In September 2008, Perry was transferred to the home
of Defendant Dorothy Purdy, but the neglect continued. (Id. at ¶ 32–33.) DHS-DDD later
substantiated the allegations of neglect against Purdy and found that Purdy was unable to provide
the level of care and supervision Perry needed. (Id. at ¶ 34.) Perry died on August 17, 2009, as a
result of a gastrointestinal hemorrhage, which Plaintiff claims was a result of Defendants’ failure
to provide Perry with necessary medical care. (Id. at ¶ 34.)
Plaintiff—Perry’s Estate—filed this action on September 10, 2010, alleging claims
against various defendants for violation of the United States Constitution, the New Jersey
Constitution, and New Jersey statutory and common law. The State Defendants have now
moved to dismiss several counts of the Complaint for failure to state a claim upon which relief
can be granted.
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III. LEGAL STANDARD
Under Fed. R. Civ. P. 12(b)(6), 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). When
considering a 12(b)(6) motion, a district court must accept as true all of a plaintiff’s well-pleaded
factual allegations and construe the complaint in the light most favorable to plaintiff, but may
disregard any legal conclusions. Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir.
2009). Once the well-pleaded facts have been identified, a court must determine whether the
“facts are sufficient to show that plaintiff has a ‘plausible claim for relief.’” Id. (quoting
Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009)). A claim is only plausible if the
facts pleaded allow a court reasonably to infer that the “defendant is liable for the misconduct
alleged.” Id. at 210 (quoting Iqbal, 129 S. Ct. at 1948). Facts suggesting the “mere possibility of
misconduct” fail to show that the plaintiff is entitled to relief. Id. at 211 (quoting Iqbal, 129 S.
Ct. at 1949).
IV. ANALYSIS
The State Defendants move to dismiss the First, Second, Third, and Seventh Counts for
failure to state a claim upon which relief can be granted. The First and Second Counts alleges
claims against the State Defendants under 42 U.S.C. § 1983 for violation of Perry’s substantive
due process rights. The Third Count alleges a claim against the State Defendants under § 1983
for deliberate indifference. And the Seventh Count claims that the State Defendants violated the
New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1. The State Defendants argue that all
four of these claims must be dismissed against Defendants State of New Jersey, DHS-DDD, and
Commissioner Velez because these defendants are not persons subject to suit under § 1983 and
the NJCRA. (Br. in Supp. of Mot. To Dismiss 4–5) [22-1]. They further argue that
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Commissioner Velez cannot be held liable in her official or individual capacity because there are
insufficient factual allegations of her personal involvement in the alleged wrongs. (Id. at 6.)
A. Claims Against Defendants State of New Jersey and DHS-DDD
The first three counts of the Complaint are brought against the State Defendants under
§ 1983, which provides a federal cause of action against any person who, acting under color of
state law, deprives another individual of a federal right. 42 U.S.C. § 1983. A state is not a
“person” subject to suit under § 1983, and this rule also applies to governmental units that are
considered “arms of the state.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70–71 (1989).
New Jersey is a state, and DHS-DDD is an arm of the state. See N.J.S.A. 30:1-2; 30:6D-24.
Therefore, the First, Second, and Third Counts must be dismissed against these Defendants.
Plaintiff does not contest this. (Mem. in Opp’n 17) [28].
Turning to Count Seven, Defendants argue that the principle of state immunity from suit
under § 1983 also applies to the New Jersey Civil Rights Act. The NJCRA is a state law
analogue to 42 U.S.C. § 1983—it creates a private right of action for the violation of civil rights
secured by the Constitution and laws of the state of New Jersey and the Constitution and laws of
the United States. Accordingly, courts in this district have generally interpreted the NJCRA to
be coextensive with its federal counterpart. See Jefferson v. Twp. of Medford, 2010 WL
5253296, at *13 (D.N.J. Dec. 16, 2010); Celestine v. Foley, 2010 WL 5186145, at *6 (D.N.J.
Dec. 14, 2010); Chapman v. New Jersey, 2009 WL 2634888, at *3 (D.N.J. Aug. 25, 2009);
Slinger v. New Jersey, 2008 WL 4126181, at *5 (D.N.J. Sept. 4, 2008), rev’d in part on other
grounds, 366 F. App’x 357 (3d Cir. 2010). Specifically, at least one court in this district has
found that sovereign immunity for the states under the Eleventh Amendment applies as much to
NJCRA claims as to § 1983 claims. See Slinger, 2008 WL 4126181, at *5. We find these
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decisions well-reasoned, and accordingly, we will dismiss Count Seven against Defendants State
of New Jersey and DHS-DDD. 2
B. Claims Against Defendant Velez
Plaintiff asserts several claims against Defendant Velez, the Commissioner of DHS, in
both her individual and official capacities. As an initial matter, we find that the § 1983 claims
against Velez in her official capacity must be dismissed because a state official acting in her
official capacity is not a “person” subject to suit for money damages under § 1983. See Will, 491
U.S. at 71. Furthermore, because we interpret the NJCRA to be coextensive with § 1983, the
NJCRA claim in Count Seven against Velez in her official capacity must be dismissed as well.
Turning to the claims against Velez in her individual capacity, it is well established that §
1983 liability cannot be premised solely on a theory of respondeat superior. Natale, 318 F.3d at
583–84. Rather, a supervisor must be personally involved in the alleged wrongs. Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). There are two theories of supervisory
liability under which supervisors can be found to have been personally involved: (1) if they
“established and maintained a policy, practice or custom which directly caused [the]
constitutional harm[;]” and (2) if they “participated in violating plaintiff’s rights, directed others
to violate them, or, as the person[s] in charge, had knowledge of and acquiesced in [their]
subordinates’ violations.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572,
586 (3d Cir. 2004) (citations omitted).
Defendants move to dismiss the claims against Velez because the Complaint does not
allege sufficient factual allegations of her personal involvement. (Br. in Supp. of Mot. to
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Plaintiff contends that the Seventh Count must be viewed in connection with the Sixth Count, which
states a direct cause of action for violation of the New Jersey Constitution. (Mem. in Opp’n 18.) Plaintiff
believes it can bring its claims under both the NJCRA and directly under the New Jersey Constitution.
(Id.) Defendants have not moved to dismiss the Sixth Count, so we take no position on the viability of
this claim, and our analysis of the NJCRA claim is unaffected.
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Dismiss 6.) We disagree. Among a detailed list of allegations, the Complaint makes the
following accusations against Velez (as one of the “State Defendants”): she failed to train DHSDDD employees and agents on the proper handling of disabled persons, (Compl. ¶ 44; 62); she
failed to establish a protocol for reporting or documenting instances of abuse, (id. at ¶ 44); she
failed to take appropriate measures in response to allegations of abuse, (id.); she was on notice
that the training and supervision at DHS-DDD were inadequate to protect disabled persons, (id.
at ¶ 36); she knew or should have known that Defendant Sloan was abusing and neglecting
disabled persons, (id. at ¶ 40); she failed to supervise, control, or monitor the services being
provided by Defendants Purdy and Sloan, (id. at ¶ 41); and she failed to investigate the ongoing
mistreatment of Perry, (id. at ¶ 39).
Defendants contend that these allegations are mere legal conclusions not based on any
facts. (Reply Br. 2.) To some extent, we recognize that specific facts supporting these
allegations are scant. For example, Plaintiff does not allege specific facts that would show how
Velez was put on notice of the mistreatment of Perry or that the training and supervision of
DHS-DDD employees was inadequate. We also understand, however, the difficulty of proving
the negative—that is, things Velez failed to do—especially at the pleadings stage of an action.
The Twombley pleading standard addresses this issue: it requires not “detailed factual
allegations” but only “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct.
1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombley, 550 U.S. 555–56 (2007)). A plaintiff
must put forward “enough facts to raise a reasonable expectation that discovery will reveal
evidence of” illegal conduct. Twombley, 550 U.S. at 554. Here, Plaintiff has alleged facts,
which we must accept as true for purposes of the motion to dismiss, that Perry was placed in a
care residence operating under contract with the State, that Velez, the Commissioner of DHS,
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failed to train or supervise DHS-DDD employees and agents, and that Velez knew or should
have known of the mistreatment of disabled persons such as Perry. We find that, under the
circumstances of this case, Plaintiff has put forward a plausible claim for relief and is entitled to
discovery that may reveal specific evidence of illegal conduct. Accordingly, Plaintiff’s claims
against Velez in her individual capacity may proceed.
V. CONCLUSION
For the reasons set forth above, IT IS on this 31st day of May, 2011,
ORDERED that the Motion to Dismiss [docket # 22] filed by Defendants State of New
Jersey, Department of Human Services, Division of Developmental Disabilities, and Jennifer
Velez is GRANTED IN PART and DENIED IN PART; and it is
ORDERED that the claims against Defendants State of New Jersey and Department of
Human Services, Division of Developmental Disabilities contained in the First, Second, Third,
and Seventh Counts are DISMISSED; and it is
ORDERED that the claims against Defendant Velez in her official capacity contained in
the First, Second, Third, and Seventh Counts are DISMISSED.
/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.
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