MAMMARO v. THE NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY ("DCP&P") et al

Filing 30

OPINION filed. Signed by Judge Freda L. Wolfson on 1/15/2015. (eaj)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MICHELLE MAMMARO

:
:
Plaintiff, :
:
v.
:
:
THE NEW JERSEY DIV. OF CHILD
:
PERMANENCY & PROTECTION, et al., :
:
Defendants. :

Civ. Action No. 13-6483 (FLW)(DEA)
OPINION

WOLFSON, United States District Judge
This civil rights action, brought by plaintiff Michelle Mammaro (“Plaintiff”), arises out of
the removal of Plaintiff’s daughter from Plaintiff’s home by New Jersey Division of Child
Protection and Permanency (formerly Division of Youth and Family Services, hereinafter referred
to as “DYFS”). Presently before the Court is a motion to dismiss filed by defendants (1) DYFS;
(2) DYFS director Kara P. Wood (“Wood”), in her official capacity; (3) Division of Children and
Families1 (“DCF”) director Allison Blake (“Blake”), in her official capacity; (4) DYFS supervisor
Alireichen Graziani, in her individual capacity; (5) DYFS supervisor Benjamin Rehig (“Rehig”),
in his individual capacity; (6) DYFS caseworker Susan Hacker (“Hacker”); DYFS caseworker
Rebecca LaBarre (“LaBarre”), in her individual capacity; and (7) DYFS caseworker Krista
DeBroux (“DeBroux”), in her individual capacity (the seven defendants collectively referred to as
“DYFS Defendants”; Wood and Blake collectively referred to as “DYFS directors”; Graziani,
Rehig, Hacker, LaBarre, and DeBroux collectively referred to as “DYFS employees”). In relevant
part, Plaintiff asserts the following claims in her Complaint: (1) in Count One, injunctive relief for

1

DYFS is a sub-division of DCF.
1

violations of her Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983 (“Section
1983”) against DYFS and DYFS directors; (2) in Count Two, injunctive relief for violations of her
Sixth and Fourteenth Amendment rights under Section 1983 and 42 U.S.C. § 1986 (“Section
1986”) against DYFS Defendants; (3) in Count Three, money damages for conspiracy to violate
Plaintiff’s civil rights under 42 U.S.C. § 1985 (“Section 1985”); (4) in Count Four, money damages
for violation of Plaintiff’s Fifth, Sixth, and Fourteenth Amendment rights to due process and equal
protection under Section 1983 against DYFS Defendants; (5) in Count Five, money damages for
violation of Plaintiff’s First, Fourth, Sixth, Eighth, and Fourteenth Amendment rights under
Section 1983 against DYFS Defendants; (6) in Count Six, money damages for unlawful retaliation
under Section 1983 against DYFS Defendants; and (7) in Count Seven, money damages for
violations of the New Jersey Civil Rights Act (“NJCRA”) against DYFS Defendants.
For reasons set forth below, the Court grants DYFS Defendants’ motion to dismiss (1) all
claims against DYFS, (2) Counts Three through Seven against DYFS directors, (3) Plaintiff’s
Section 1983 claims alleging violations of the First, Fourth, Fifth, Sixth, and Eighth Amendments
and the Fourteenth Amendment’s equal protection clause; and (4) Plaintiff’s Section 1985 and
Section 1986 claims. The Court further denies DYFS Defendants’ motion to dismiss (1) DYFS
directors in Counts One and Two, (2) DYFS employees in Count Seven (3) Plaintiff’s Section
1983 claims in Counts Four and Five for violations of the Fourteenth Amendment’s due process
clause for injunctive relief against DYFS employees on the basis of quasi-judicial immunity, in
part and (4) on the basis of qualified immunity, without prejudice.
BACKGROUND
For the purpose of this motion, the Court will take the allegations in the Amended
Complaint as true, and only recount relevant facts. On July 22, 2011, Michelle Mammaro was

2

taken to a hospital for wounds she incurred from domestic violence caused by her husband,
Damon. At the hospital, Mammaro met with a DYFS caseworker and discussed what had
happened. See Compl. ¶¶ 23-31. Mammaro’s child, D.M., was sent to the home of Mammaro’s
brother-in-law for the night, so that Mammaro could recover and D.M. could be properly cared
for. Id. ¶ 32. A DYFS caseworker then visited Mammaro’s home on July 26, 2011, and appeared
at the first hearing at which Mammaro sought a restraining order against her husband. Id. ¶¶ 3744. The caseworker “began to question” Mammaro, told Mammaro that “someone had made
allegations against her,” and told Mammaro that she had to go with the caseworker to take a drug
test or risk losing custody of her child. Id. ¶¶ 37-41. A DYFS caseworker again appeared at
Mammaro’s final hearing on the restraining order and repeated the request for Mammaro to
accompany the caseworker and submit to a drug test screening or risk losing custody of her child.
Id. ¶ 45.
Mammaro submitted to drug tests on July 28, 2011 and August 4, 2011. Id. ¶ 47. She tested
positive on both tests and admits to using a small amount of marijuana “in an attempt to selfmedicate the stress and anxiety of the domestic violence which had occurred,” while D.M “was
safe in the care of her uncle and aunt.”2 Id. ¶ 46. Mammaro was also ordered to submit to a hair
follicle test administered by Omega Laboratories (“Omega”). The test came back as containing
100 picograms/milligram of cocaine, which Omega deemed a positive test despite Omega’s stated
policy of treating tests reporting exactly 100 picograms/milligram as negative.3 Id. ¶¶ 75-80.

2

According to Mammaro, the second test revealed sharply lower amounts of marijuana in Mammaro’s system, and a
DYFS caseworker who testified at Mammaro’s termination of parental rights trial admitted that the second test showed
lower amounts of marijuana. Id. ¶ 49.
3

Further, at the abuse and neglect trial, “DYFS’s expert testimony stated that the margin for error for the testing
equipment was 20%, and the pictogram/milligram measurement could be negative at 20% below the cut-off.” Id. ¶
82.

3

Thereafter, DYFS filed a Verified Complaint for temporary guardianship of D.M., in which
DYFS alleged that Mammaro had engaged in child abuse. Id. ¶ 51. According to Mammaro, the
Verified Complaint was filled with false and absurd allegations made by Mammaro’s husband and
brother-in-law.4 Id. ¶¶ 52-56. Further, Mammaro claims that DYFS does not have a policy of
pursuing every positive drug test as a case of abuse and neglect, and in fact did not immediately
pursue Mammaro’s case after the two positive tests.5 Id. ¶ 49.
According to Mammaro, “instead of acknowledging their wrongdoing and assisting [her]
with finding a new home, DYFS . . . contacted the Watchung Police Department and, with the
illegal threat of force from Officers of the Watchung Police Department . . . [who] arrived at the
home in conspiracy with . . . DYFS . . . , forcibly removed D.M. from Mammaro’s custody on
October 28, 2011, without due process of law and without probable cause.” Id. ¶ 73. According to
Mammaro, she was separated from her child for several days, and her child was only returned to
her after she challenged Defendants’ actions in New Jersey Superior Court. Id. ¶ 74.
Mammaro further alleges that DYFS caseworkers failed to assist Mammaro in attempting
to remain a fit parent by (1) refusing to reschedule a random drug test that conflicted with an earlier
meeting with Social Services, which resulted in her losing benefits and (2) failing to make
arrangements to move Mammaro and her child into an approved home when Mammaro could not
obtain an extension of time to continue living in the safe house to which she had relocated

4

For example, Mammaro’s brother-in-law Chris made statements about her being under the influence of drugs in front
of her child at her home—when in fact, according to Mammaro, Chris has never even been to Mammaro’s home. Id.
¶ 53. Another example is Damon’s allegation that Mammaro bruised herself by “running into walls”, which, according
to Mammaro, “was completely absurd.” Id. ¶ 54. A third example is the accusation that Mammaro engaged in “doctor
shopping,” “even though she only had one doctor for several years.” Id. ¶ 56.
5

Ms. Mammaro further claims to have tested negative for illicit substances on every test which was required of her
thereafter, including negative screens at Somerset Treatment Services on August 22, September 13, September 20 and
September 27, 2011.

4

following DYFS involvement. Id. ¶¶ 61-63, 70-74. Moreover, Mammaro alleges that DYFS
caseworkers advised her to agree to lift the restraining order against Damon Mammaro so he could
visit D.M., advised Mammaro against checking her joint cell-phone account to track whether her
husband was violating the restraining order, and falsely accused Mammaro of abusing prescription
medication after Mammaro complained in court about defendants’ wrongful conduct. Id. ¶¶ 5859.
DYFS’s complaints of child abuse and neglect against Mammaro were dismissed on June
27, 2012, by the Superior Court of New Jersey. According to Mammaro, the court found that “she
had never abused or neglected her child.” Compl. ¶ 90.
On October 28, 2013, Plaintiff filed a lawsuit in this Court against, inter alia, DYFS
Defendants. In her Amended Complaint, Plaintiff claims in relevant part that (1) under Section
1983, DYFS Defendants violated Plaintiff’s First, Fourth, Fifth, Sixth, Eighth, and Fourteenth
Amendment rights; (2) under Section 1983 and Section 1986, DYFS Defendants violated
Plaintiff’s Sixth and Fourteenth Amendment rights; (3) under Section 1985, DYFS Defendants
engaged in a conspiracy to violate Plaintiff’s civil rights; (3) under Section 1983, DYFS
Defendants retaliated against Plaintiff for seeking an investigation of Defendants’ actions; and (4)
under the New Jersey Civil Rights Act (“NJCRA”), DYFS Defendants have violated Plaintiff’s
civil rights as guaranteed by the U.S. Constitution and the laws of the State of New Jersey.6
On March 25, 2014, defendants Omega and Patrick Minno (“Minno”) moved to dismiss
Plaintiff’s claims against them; the Court granted Omega and Minno’s motion on September 30,
2014. On June 3, 2014, DYFS Defendants filed the present motion to dismiss, asserting (1)

6

Plaintiff asserts seven causes of action in her Amended Complaint. Counts One and Two, under Section 1983 and
Section 1986, and for prospective injunctive relief, are, in relevant part, only asserted against DYFS, Wood, and Blake.
Counts Three through Seven, under Section 1983 and Section 1985, are asserted against all DYFS Defendants.

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sovereign immunity, (2) quasi-judicial immunity, (3) qualified immunity and (4) that Plaintiff fails
to state a claim under Section 1983, Section 1985, and the NJCRA.
DISCUSSION
I.

State Sovereign Immunity
DYFS Defendants claim that under the Eleventh Amendment, they are immune from suit

under Section 1983, Section 1985, and Section 1986. A motion to dismiss based on state sovereign
immunity is appropriate under both Rule 12(b)(1) and Rule 12(b)(6). See Carter v. City of
Philadelphia, 181 F.3d 339, 343 (3d Cir. 1999) (considering immunity under 12(b)(6)); Blanciak
v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n. 2 (3d Cir.1996) (considering immunity under
12(b)(1)). Defendants bring their motion under Rule 12(b)(1). Under either standard, the Court
must look to the face of the Complaint and take its allegations as true. In an ordinary Rule 12(b)(1)
motion, the plaintiff bears the burden of persuading the court that subject matter jurisdiction exists.
See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991), cert. denied, 501
U.S. 1222 (1991). Sovereign immunity, on the other hand, is an affirmative defense, and the burden
of demonstrating immunity lies with the party asserting it. See Carter v. City of Philadelphia, 181
F.3d 339, 347 (3d Cir. 1999) (citing Christy v. Pennsylvania Turnpike Commission, 54 F.3d 1140,
1144 (3d Cir. 1995)).
The Eleventh Amendment provides that “[t]he judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by citizens of another state, or by citizens or subjects of any foreign state.” The
amendment precludes federal jurisdiction over a state absent the state's consent to suit. See
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99 (1984). The immunity from suit
extends to agencies, departments and officials of the state when the state is the real, substantial

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party in interest. Id. at 101–102; Alabama v. Pugh, 438 U.S. 781 (1978). In Fitchik v. New Jersey
Transit Rail Operations, Inc., the Third Circuit explained that the state is a party-in-interest when
“the judgment sought would expend itself on the public treasury or domain, or interfere with the
public administration, or if the effect of the judgment would be to restrain the Government from
acting or to compel it to act.” 873 F.2d 655, 659 (3d Cir.1989). In other words, sovereign immunity
is appropriate if the named defendant is an “arm of the state.” Chisolm v. McManimon, 275 F.3d
315, 323 (3d Cir. 2001).7
Here, Plaintiff argues that DYFS should not be considered an “arm” of the state because
the agency has funding separate and independent of the New Jersey state treasury, since DYFS
receives federal funding and “often obtains monies from the parents it brings actions against as
‘child support,’ but here is no accounting of these funds.” Pl.’s Opp. Br. at 10.
However, courts in this state have long held that DYFS is, “beyond dispute,” an arm of the
state for sovereign immunity purposes. New Jersey Div. of Youth & Family Servs. v. D.C., 118
N.J. 388, 396 (1990) (“DYFS is . . . a supervisory arm of the State.”) (internal citation and
quotation marks omitted); see also Izquierdo v. New Jersey, No. 12-7298 DRD, 2014 WL 234186,
at *2 (D.N.J. Jan. 21, 2014), appeal dismissed (May 1, 2014); Sweet-Springs v. Dep't of Children
& Families, No. 12-706 FLW, 2013 WL 3043644, at *5 (D.N.J. June 17, 2013); Simmerman v.
Corino, 804 F.Supp. 644, 650 (D.N.J. 1992) (“The Division of Youth and Family Services is . . .
created by statute and is answerable to other State agencies.”).

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The Third Circuit has explained that “there are only three narrowly circumscribed exceptions to Eleventh
Amendment immunity (1) abrogation by Act of Congress, (2) waiver by state consent to suit; and (3) suits against
individual state officials for prospective relief to remedy an ongoing violation of federal law.” M.A. ex rel. E.S. v.
State–Operated Sch. Dist., 344 F.3d 335, 345 (3d Cir. 2003) (citing MCI Telecomms. Corp. v. Bell Atlantic–
Pennsylvania Serv., 271 F.3d 491, 503 (3d Cir.2001), cert. denied, 537 U.S. 941 (2002). Plaintiff has not argued that
any of these “narrowly circumscribed” exceptions apply.

7

Plaintiff’s attempts to distinguish this established body of case law by citing to two cases
in support of her position: (1) Ramada Inns, Inc. v. Rosemount Mem'l Park Ass'n, 598 F.2d 1303,
1307 (3d Cir. 1979), in which the Third Circuit found that a lawsuit against the New Jersey
Cemetery Board could proceed because New Jersey was not a real party-in-interest, and (2)
Fitchik, 873 F.2d at 662, in which the Third Circuit found that New Jersey Transit Rail Operations
(“NJTRO”), a wholly-owned subsidiary of New Jersey Transit (“NJT”), was not entitled to
sovereign immunity. However, both cases are distinguishable. In Ramada Inns, the Third Circuit
found that “[n] o possible outcome of this suit could result in an award of damages which will be
paid out of the state treasury or in equitable relief which must be satisfied by the state” because
the plaintiff in that case simply sought money it had paid out to be returned and that neither the
attorney general nor the cemetery board had raised an Eleventh Amendment defense. In Fitchik,
the Third Circuit found that the vast majority of NJT funds came from passenger fares and federal
funding, NJT was self-insured, and “New Jersey is under no obligation to pay NJT's debts or
reimburse NJT for judgments that it pays;” accordingly, judgment against NJT in the personal
injury case at issue would not come out of the state treasury Fitchik, 873 F.2d at 662. Ramada
Inns, 598 F.2d at 1307.
Here, however, there are no facts demonstrating that New Jersey is a minority contributor
to DYFS’s budget or that Plaintiff’s asserted relief—totaling $60 million in compensatory and
punitive damages, plus attorneys’ fees and injunctive relief—will not impact the state treasury.
Further, DYFS has clearly asserted Eleventh Amendment immunity. Am. Compl. at ¶ 165; Defs.’
Br. at 9. Moreover, the other two Fitchik factors, the status of the entity under state law and the
degree of autonomy enjoyed by the entity, clearly weigh towards finding that DYFS is an arm of
the state. See Simmerman v. Corino, 804 F. Supp. 644, 650 (D.N.J. 1992) aff'd, 16 F.3d 405 (3d

8

Cir. 1993). Plaintiff’s argument is unavailing. DYFS is an arm of the State and thus, New Jersey
is the real party-in-interest in this litigation against DYFS.

8

Therefore, DYFS is entitled to

sovereign immunity and all claims against the agency must be dismissed.
I now turn to whether the individual DYFS defendants also enjoy sovereign immunity.
Usually, absent specific abrogation of the state's immunity by Congress or consent by a state, suits
for money damages against a state or state officials in their official capacities are barred by the
Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 169 (1985) (concluding that
Eleventh Amendment barred official capacity action for damages in Section 1983 suit); Edelman
v. Jordan, 415 U.S. 651 (1974) (holding that suit against state official for retroactive monetary
relief, which requires payment of funds from state treasury is barred by Eleventh Amendment);
accord Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 (3d Cir. 1996). The Eleventh
Amendment, however, does not bar Plaintiffs from suing state officials for violations of federal
law where future injunctive relief is sought. See Ex parte Young, 209 U.S. 123 (1908) (holding
that Eleventh Amendment does not prohibit suit to enjoin state Attorney General from enforcing
state statute that allegedly violated Fourteenth Amendment); see also Edelman, 415 U.S. 651
(same); Koslow, 302 F.3d at 167–68 (same).
Here, Plaintiff has named Wood, the director of DYFS, and Blake, the commissioner of
the Department of Children and Families (“DCF”) solely in their official capacities and in all seven

8

I specifically note that though Plaintiff argues that DYFS’s receipt of federal funding precludes DYFS from being
considered an arm of the state, Plaintiff does not argue or otherwise provide support for the position that New Jersey
waived its Eleventh Amendment immunity in this case by accepting federal funding. See M.A. ex rel. E.S., 344 F.3d
at 345. Even if the Court were to read such an argument into Plaintiff’s brief, the argument would fail. While other
courts in this district have accepted that DYFS receives federal funding and therefore can potentially be sued under
the Rehabilitation Act, see Doe v. Div. of Youth & Family Servs., 148 F. Supp. 2d 462, 490 (D.N.J. 2001), the
Rehabilitation Act is a statute that clearly conditions receipt of federal funding on waiving Eleventh Amendment
immunity. See Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 170 (3d Cir. 2002). The Court is unable to
find any cases holding that DYFS has waived its Eleventh Amendment immunity against Section 1983 or Section
1985 suits.
9

of her causes of action. In Counts One and Two, Plaintiff solely seeks injunctive relief “in the form
of an order requiring that the explicit instruction and policy be made requiring DYFS workers to
refrain from abuse of process.” Am. Compl. at ¶¶ 112, 118. In her remaining causes of action
(Counts Three through Seven), Plaintiff only seeks monetary damages, including attorneys’ fees,
costs, and interest. Id. ¶ 122. Because DYFS directors are being sued in their official capacities for
money damages in Counts Three through Seven of Plaintiff’s Amended Complaint and New Jersey
is the real party-in-interest upon which liability is to be imposed,9 it is clear that under Eleventh
Amendment immunity analysis, Counts Three through Seven against DYFS directors must be
dismissed. See Jones v. Hashagen, 512 F. App'x 179, 182 (3d Cir. 2013); see also Figueroa v. City
of Camden, 580 F. Supp. 2d 390, 398 (D.N.J. 2008).
However, DYFS directors are not entitled to sovereign immunity as to Counts One and
Two, since those claims are purely for prospective injunctive relief. Ex parte Young, 209 U.S. 123;
see also Edelman, 415 U.S. 651; Koslow, 302 F.3d at 167–68. Finally, Plaintiff’s claims against
DYFS employees in their individual capacities based on actions taken under color of state law are
also not precluded by sovereign immunity and may not be dismissed on that basis.10 Hafer v. Melo,
502 U.S. 21, 31 (1991) (“The Eleventh Amendment does not bar . . . suits [against state officials
sued in their individual capacities], nor are state officers absolutely immune from personal liability
under § 1983 solely by virtue of the “official” nature of their acts.”).

9

As I found above, DYFS is an arm of the state, and the parties do not dispute that DCF, which oversees DYFS, is
also an arm of the state. Therefore, the state of New Jersey is the real party-in-interest. See Jones v. Hashagen, 512 F.
App'x 179, 182 (3d Cir. 2013).
10

DYFS Defendants claim that despite the fact that Plaintiff has named DYFS employees in their individual capacities,
“the State defendants are being sued for the actions as State officers/employees and, therefore, they are entitled to
cloak themselves in [sic] State’s sovereign immunity.” Defs.’ Br. at 9. DYFS Defendants cite to Johnson v. State of
New Jersey, 869 F.Supp. 289 (D.N.J. 1994) for this proposition. However, Johnson did not examine the issue of
sovereign immunity for officials sued in their individual capacities, and the case law is clear on denying sovereign
immunity for officials sued in their individual capacities. Hafer v. Melo, 502 U.S. 21, 31 (1991).

10

In sum, under Eleventh Amendment sovereign immunity analysis, Plaintiff’s federal
claims against DYFS and federal claims for monetary damages against DYFS directors must be
dismissed. However, Plaintiff’s claims against DYFS directors for prospective injunctive relief
and against DYFS employees in their individual capacities may not be dismissed on the basis of
sovereign immunity.
II.

Failure to State A Claim
a. Section 1983
DYFS Defendants also argue that Plaintiff fails to state a claim under Section 1983. 42

U.S.C. § 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
42 U.S.C. § 1983. “A Section 1983 claim has two essential elements: (1) the conduct complained
of must be ‘committed by a person acting under color of state law’; and (2) this conduct must
‘deprive[ ] a person of rights, privileges, or immunities secured by the Constitution or laws of the
United States.’” Burton v. Kindle, 401 F. App'x 635, 636-37 (3d Cir. 2010) (quoting Kost v.
Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993)).
In order to be liable within the meaning of the statute, a defendant must be a “person.” In
Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989), the Supreme Court held that a
State, or an official acting in his or her official capacity for the State, being sued for money
damages is not a person within the meaning of 42 U.S.C. § 1983. Specifically, the Court noted that
Congress did not intend to override the immunity protections afforded to a state and its officials
under the Eleventh Amendment. Id. Thus, a cause of action for money damages brought pursuant
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to § 1983, cannot be asserted against the State, its agencies, or its officials acting in their official
capacities. As the Court has already determined that DYFS and DYFS directors are entitled to
sovereign immunity because DYFS is an “arm” of the state” and DYFS directors are state officials
of “arms” of the state being sued in their official capacities, Plaintiff’s Section 1983 claims for
money damages against DYFS and DYFS directors may alternatively be dismissed because they
are not “persons” within the meaning of Section 1983.
Further, Plaintiff must establish which rights or privileges have been infringed upon by
DFYS Defendants’ actions. Albright v. Oliver, 510 U.S. 266, 271 (1994); see also Burse v.
Borough of Swissvale, No. CIV.A. 13-705, 2014 WL 1017886, at *4 (W.D. Pa. Mar. 17, 2014);
Gottlieb ex rel. Calabria v. Laurel Highlands Sch. Dist., 272 F.3d 168, 171 (3d Cir. 2001). Plaintiff
asserts violations of her First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights.
However, Plaintiff’s causes of action are conclusory and do not explain how each amendment is
implicated by DYFS Defendants’ conduct. See Am. Compl. ¶¶ 105-160. Parsing the general
allegations contained in Plaintiff’s complaint, which precede each of Plaintiff’s causes of action,
only reveals allegations that DYFS Defendants deprived Plaintiff of her Fourteenth Amendment
rights to procedural and, possibly, substantive due process in what Plaintiff describes as a
seemingly-arbitrary and adversarial investigation into Plaintiff’s parenting and the forcible
removal of D.M. without a hearing.11 As the following analysis demonstrates, not only does
Plaintiff not clearly explain how certain of her rights have been violated, but certain of the
constitutional claims she assets have absolutely no applicability here.

11

However, the Court reserves judgment whether Plaintiff’s Section 1983 allegations under the Fourteenth
Amendment’s due process clause do indeed state a claim under Section 1983. The Court merely finds that on its face,
the allegations in Plaintiff’s complaint may support such a claim against DYFS defendants who are persons within the
meaning of Section 1983. Thus, the Court declines to dismiss Plaintiff’s due process claims without DYFS Defendants
specifically moving and briefing that Plaintiff has failed to establish the other elements of Section 1983 liability under
the Fourteenth Amendment’s due process clause.

12

First, Plaintiff asserts a First Amendment violation in both Count Five and Count Six. In
Count Five, Plaintiff asserts that an abuse of process claim and states that “Defendants . . . caused
Plaintiff to be deprived of her rights to speak truthfully about the Defendants’ conduct without fear
of reprisal and retaliation in violation of the First Amendment . . . .” Am. Compl. ¶ 138. In Count
Six, Plaintiff lists a separate, explicit retaliation claim under Section 1983 and contends that
Defendants undertook unspecified conduct in retaliation for Plaintiff’s “exercise of her First
Amendment rights in communicating seeking [sic] investigation of Defendants’ actions.” See Am.
Compl. ¶ 143. The Court construes both claims as First Amendment retaliation claims.
“In order to plead a retaliation claim under the First Amendment, a plaintiff must allege:
(1) constitutionally protected conduct, (2) retaliatory action 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); see also Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003). “The key question in
determining whether a cognizable First Amendment claim has been stated is whether ‘the alleged
retaliatory conduct was sufficient to deter a person of ordinary firmness from exercising his First
Amendment rights.” McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (internal citation and
quotation marks omitted). Here, while Plaintiff asserts that the hair follicle test administered by
Omeag “was falsified evidence . . . submitted in retaliation for her complaints about [DYFS’s]
violations of [her] rights,” Am. Compl. at ¶ 86, Plaintiff does not specifically describe any
protected activity in which she engaged or explain how the erroneous hair follicle test would deter
a person of ordinary firmness from exercising her First Amendment rights.12 Therefore, Plaintiff’s
Section 1983 claim under the First Amendment claim must be dismissed.

12

Further, Plaintiff alleges that Omega, not DYFS, found Plaintiff’s hair follicle to test positive for cocaine and
marijuana. However, the Court dismissed Plaintiff’s claims against Omega and Minno, Omega’s agent, because the
13

Second, Plaintiff repeatedly claims that DYFS Defendants caused Plaintiff to be deprived
of her Fourth Amendment right, and quotes the Fourth Amendment as stating that no person shall
“be deprived of life, liberty, or property, without due process of law.” Am. Compl. ¶¶ 111, 136.
However, such language is not contained in the Fourth Amendment. The Fourth Amendment
states,
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
U.S. CONST. AMEND. IV. Plaintiff in no way explains how her right to be free from unreasonable
searches and seizures is implicated in her lawsuit; accordingly, her Section 1983 claim under the
Fourth Amendment claim must be dismissed.
Third, Plaintiff asserts that her Sixth Amendment rights have been violated. The Sixth
Amendment states,
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the state and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in his
favor, and to have the assistance of counsel for his defense.
U.S. CONST. AMEND. VI. None of Plaintiff’s allegations state that she was the subject of a criminal
prosecution. See Am. Compl. Thus, Plaintiff’s Sixth Amendment claim must be dismissed.
Fourth, Plaintiff asserts that her Eighth Amendment right to be free from cruel and unusual
punishment has been violated. The Eighth Amendment states that “excessive bail shall not be

Court found that Plaintiff did not allege facts sufficient to find that Omega was a state actor for the purposes of Section
1983 liability. Mammaro v. Omega Lab., Inc., No. CIV.A. 13-6483 FLW, 2014 WL 4854602, at *3–*5 (D.N.J. Sept.
30, 2014). Therefore, Plaintiff’s allegations that DYFS Defendants, acting through Omega, falsified the test results
fails.
14

required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST.
AMEND. VIII. However, Plaintiff does not specify which, if any, actions of which she complains
constitutes cruel and unusual punishment. See Am. Compl. Therefore, Plaintiff’s Section 1983
claim under the Eighth Amendment claim must be dismissed.
Fifth, Plaintiff also asserts that her Fourteenth Amendment right to equal protection was
violated. The Fourteenth Amendment states that no state shall “deny to any person within its
jurisdiction the equal protection of the laws. U.S. CONST. AMEND. XIV. “In order to bring a
successful section 1983 claim for the denial of equal protection, plaintiffs must prove the existence
of purposeful discrimination.” Id. (citing Andrews v. Philadelphia, 895 F.2d 1469, 1478 (3d Cir.
1990)). A plaintiff may proceed as a “class of one” by alleging that she has “been intentionally
treated differently from others similarly situated and that there is no rational basis for the difference
in treatment.” Marcavage v. Nat'l Park Serv., 666 F.3d 856, 860 (3d Cir.2012) (quoting Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)); see also McGuire v. Nw. Area Sch. Dist., No.
3:11-CV-1022, 2012 WL 1144652, at *3 (M.D. Pa. Apr. 5, 2012). Plaintiff has asserted an equal
protection violation in Counts Four and Five of her Amended Complaint. Plaintiff has alleged no
facts in those causes of action specifically demonstrating that she was the target of purposeful
discrimination or that she was intentionally treated differently from others similarly situated. See
Am. Compl. ¶¶ 123-39. Therefore, Plaintiff’s Section 1983 claim under the Fourteenth
Amendment’s equal protection clause must be dismissed.
Accordingly, the Court dismisses Plaintiff’s Section 1983 claims to the extent they assert
violations of Plaintiff’s Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment equal protection
rights. However, Plaintiff’s Section 1983 claims asserting violations of her Fourteenth Amendment

15

due process rights, against DYFS directors in Counts One and Two and against DYFS employees
in Counts Four and Five, may proceed.
b. NJCRA
DYFS Defendants further argue they are not “persons” within the meaning of the NJCRA.
The NJCRA was modeled after § 1983, and thus courts in New Jersey have consistently looked at
claims under the NJCRA “through the lens of § 1983.” Trafton v. City of Woodbury, 799 F.Supp.2d
417, 443–44 (D.N.J. 2011); Chapman v. New Jersey, No. 08–4130, 2009 WL 2634888, *3 (D.N.J.
Aug.25, 2009) (“Courts have repeatedly construed the NJCRA in terms nearly identical to its
federal counterpart. . . .”); Armstrong v. Sherman, No. 09–716, 2010 WL 2483911, *5 (D.N.J. June
4, 2010) (“[T]he New Jersey Civil Rights Act is a kind of analog to section 1983 . . . .”). Courts in
this District have generally interpreted the NJCRA as having incorporated the Supreme Court’s
holding in Will. See, e.g., Lopez-Siguenza v. Roddy, No. CIV. 13-2005 JBS/JS, 2014 WL 1298300,
at *7 (D.N.J. Mar. 31, 2014); Didiano v. Balicki, Civ. 10–4483 (RBK/AMD), 2011 WL 1466131,
at *8 (D.N.J. Apr. 18, 2011), aff'd, 488 F. App'x 634 (3d Cir. 2012); Chapman, 2009 WL 2634888,
at *3; Slinger v. New Jersey, Civ. 07–5561(DMC), 2008 WL 4126181, at *7 (D.N.J. Sept. 4, 2008),
rev'd in part, 366 F. App'x 357 (3d Cir. 2010). Accordingly, Plaintiff's NJCRA claims against
DYFS and DYFS directors also fail as a matter of law because they are not persons amenable to
suit under the NJCRA. However, Plaintiff’s NJCRA claims against DYFS employees in their
individual capacities are not subject to dismissal on this basis, because, as discussed supra in my
sovereign immunity analysis, they are persons amenable to suit.
c. Section 1985
DYFS Defendants argue that Plaintiff has failed to state a claim under Section 1985. In
Count Three, Plaintiff alleges that defendants, including DYFS Defendants, conspired, in violation

16

of § 1985, when they “reached a meeting of the minds amongst themselves that incidents of abuse
of process would be tolerated notwithstanding the constitutional implications of such abuse and
the likelihood such conduct would be repeated.” Compl. ¶ 120–22. Plaintiff further avers that this
abuse of process is evident through “Defendants' incidents of abuse of process and from the
repeating of that conduct in an effort to delay Michelle Mammaro her rights of due process.”
Compl. ¶ 121. Taken together, Plaintiff accuses DYFS Defendants of conspiring with other
defendants to abuse process in violation of § 1985. See Compl. ¶¶ 119–122.
I incorporate my September 30, 2014 opinion’s Section 1985 analysis—in which I
dismissed Plaintiff’s Section 1985 and Section 1986 claims against Omega and Minno—herein,
and reiterate and adopt my previous conclusions.. No abuse of process claim exists under § 1985.
See 42 USC § 1985; see Mammaro v. Omega Lab., Inc., No. CIV.A. 13-6483 FLW, 2014 WL
4854602, at *5-*6 (D.N.J. Sept. 30, 2014); see also Marable v. W. Pottsgrove Twp., 176 Fed.
App’x 275, 281–282 (3d Cir.2006); Natale v. Schwartz, 1999 U.S. Dist. LEXIS 18933, at *30,
1999 WL 1134535 (E.D. Pa. Dec. 10, 1999). And, while a state action for abuse of process may
give rise to a conspiracy to obstruct justice in violation of 42 USC § 1985(2),13 Plaintiff has not

13

42 U.S.C. § 1985(2), titled “Obstructing Justice; intimidating party, witness, or juror,” states:
If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat,
any party or witness in any court of the United States from attending such court, or from testifying
to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his
person or property on account of his having so attended or testified, or to influence the verdict,
presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in
his person or property on account of any verdict, presentment, or indictment lawfully assented to by
him, or of his being or having been such juror; or if two or more persons conspire for the purpose
of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any
State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him
or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of
persons, to the equal protection of the laws . . . .

17

pled this type of claim.14 Am. Compl. ¶¶ 119–122. Simply, Plaintiff has failed to state a claim;
thus, Plaintiff's claim for abuse of process in violation of § 1985 is dismissed.
Further, because Plaintiff cannot state a claim under § 1985, she also cannot state a claim
under § 1986.15 See Brawer v. Horowitz, 535 F.2d 830, 841 (3d Cir. 1976); Clark v. Clabaugh, 20
F.3d 1290, 1295 n.5 (3d Cir. 1994). Accordingly, Plaintiff's §§ 1985 and 1986 claims are dismissed
for failure to state a claim.
III.

Quasi-Judicial Immunity
Next, I analyze DYFS Defendants’ argument that child welfare workers are protected by

absolute, quasi-judicial immunity.16 “Quasi-judicial absolute immunity attaches when a public
official's role is functionally comparable to that of a judge. To determine this, a court must consider
whether the official acted independently and what procedural safeguards attended his/her decisionmaking process.” Hamilton v. Leavy, 322 F.3d 776, 785 (3d Cir. 2003) (internal citation and
quotation marks omitted); see also Butz v. Economou, 438 U.S. 478, 513 (1978); Cleavinger v.
Saxner, 474 U.S. 193, 202 (1985).
In Ernst v. Child & Youth Servs. of Chester Cnty., 108 F.3d 486 (3d Cir. 1997), the Third
Circuit found that the child welfare workers from Child and Youth Services of Chester County,

14

Nevertheless, even under § 1985(2), Plaintiff would still fail to state a claim because the Third Circuit requires §
1985(2) claims for conspiracy to “include allegations that the conspiracy was motivated by racial or class-based
discriminatory animus,” and Plaintiff at no point in her Complaint indicates any protected class to which she belongs.
Nor does she allege that she was denied equal protection because of her class membership. See Davis v. Township of
Hillside, 190 F.3d 167, 171 (3d Cir. 1999) (“Because plaintiff does not allege that the officers colluded with the
requisite “ ‘racial, or ... otherwise class-based, invidiously discriminatory animus,’ ... the district court correctly
dismissed this claim.”) (citation omitted); see also Kush v. Rutledge, 460 U.S. 719, 725 (1983).
15

The Court notes that DYFS Defendants have not specifically moved to dismiss Plaintiff’s Section 1986 claim under
Rule 12(b)(6). See Defs.’ Br.

16

The Court notes that it does not appear that quasi-judicial immunity extends to claim for injunctive relief;
accordingly, the Court solely analyzes whether DYFS employees may enjoy quasi-judicial immunity. DYFS directors
do not appear to be able to claim quasi-judicial immunity. Bernstein v. New York, 591 F. Supp. 2d 448, 463 (S.D.N.Y.
2008) (citing Pulliam v. Allen, 466 U.S. 522, 541–42 (1984)).
18

Pennsylvania “were entitled to absolute immunity for their actions on behalf of the state in
preparing for, initiating, and prosecuting dependency proceedings,”17 including “their formulation
and presentation of recommendations to the court in the course of such proceedings.” Id. at 488.
The Third Circuit cited the following considerations in reaching its conclusion: “(1) the functions
performed by the CYS defendants in dependency proceedings are closely analogous to the
functions performed by prosecutors in criminal proceedings; (2) the public policy considerations
that countenance immunity for prosecutors are applicable to child welfare workers performing
these functions; and (3) dependency proceedings incorporate important safeguards that protect
citizens from unconstitutional actions by child welfare workers.” See also Nicini v. Morra, 212
F.3d 798, 813 n.11 (3d Cir. 2000). However, this immunity does not extend to administrative or
investigative acts outside the scope of the actual dependency proceeding. See Ernst, 108 F.3d at
497 n.7; see also B.S. v. Somerset Cnty., 704 F.3d 250, 266 (3d Cir. 2013). In B.S. v. Somerset
Cnty, the Third Circuit extended this immunity to the actions taken by a child protective services
worker in seeking a court order transferring custody from a child’s mother to her father. Id. at 26465.
Here, whether quasi-judicial immunity applies turns on whether DYFS employees
“‘function[ed] as the state's advocate when performing the action(s)’ that gave rise to the due
process violations [Plaintiff] seeks to redress, or whether those claims instead arose from
unprotected ‘administrative or investigatory actions.’” B.S., 704 F.3d at 265 (quoting Odd v.
Malone, 538 F.3d 202, 208 (3d Cir. 2008)). “The key to the absolute immunity determination is
not the timing of the investigation relative to a judicial proceeding, but rather the underlying

17

Dependency proceedings are, essentially, child protection proceedings. See Randi Mandelbaum, Revisiting the
Question of Whether Young Children in Child Protection Proceedings Should Be Represented by Lawyers, 32 LOY.
U. CHI. L.J. 1, 22 (2000).

19

function that the investigation serves and the role the caseworker occupies in carrying it out.” B.S.,
704 F.3d at 270. In B.S., the Third Circuit carefully examined the line between prosecutorial and
investigatory actions undertaken by a child protective services worker who, after a judge had
signed an initial custody removal order, had continued to investigate and filed a ChildLine report
in connection with a subsequent custody determination. Id. at 265-70. The court concluded that
“the presence of an investigative component to [a child protective services worker’s] conduct does
not bar the application of absolute immunity when the function of her actions is still fundamentally
prosecutorial in nature.” Id. at 269. Thus, the court found that the child protective services worker’s
complained-of actions were within the ambit of the ongoing judicial proceeding, and granted
absolute immunity.18 Id.
Here, unlike the actions at issue in B.S., the bulk of Plaintiff’s allegations in her Amended
Complaint concern actions or omissions undertaken by DYFS employees that appear to lack a
prosecutorial purpose. Those actions include DYFS employees’ allegedly (1) coercive insistence
that Plaintiff submit to questioning and take a drug test, (2) recommendation that Plaintiff maintain
contact with her estranged husband, (3) failure to assist Plaintiff in securing public benefits and
housing, and (2) decision to contact the Watchung police, which resulted in the removal of D.M.
from Plaintiff’s custody. See generally Am. Compl. Further, none of Plaintiff’s causes of actions
specifically refer to DYFS’s Verified Complaint or actions DYFS employees took in direct
connection with Plaintiff’s abuse and neglect trial. See, e.g., McCready v. Womble, No. CIV.A.
11-7670, 2014 WL 1608446, at *18 n.28 (E.D. Pa. Apr. 22, 2014).

18

This Court notes with disapproval that neither DYFS Defendants nor Plaintiff cited to B.S., a recently-decided and
precedential Third Circuit decision, in their quasi-judicial immunity arguments—or indeed, anywhere in their briefs.
See Defs.’ Br.; Pl.’s Opp. Br.

20

However, several paragraphs concern the allegations contained in the Verified Complaint
DYFS filed afterwards “seeking temporary guardianship of D.M. and [stating] allegations of child
abuse against Plaintiff.” Id. ¶ 51; see also id. at ¶¶ 51-56. The Verified Complaint resembles the
ChildLine report in B.S. and falls within the scope of the immunity as defined in Ernst protecting
the “formulation and presentation of recommendations to the court in the course of [child custody]
proceedings.” 108 F.3d at 488.
Because DYFS Defendants’ complained-of actions are a mix of prosecutorial and
investigative/administrative actions, the Court finds that DYFS employees are only entitled to
quasi-judicial immunity to the extent that Plaintiff’s claims are premised on DYFS directors and
DYFS employees’ actions taken in preparing the Verified Complaint and actions taken in
representing the State in Plaintiff’s abuse and neglect trial.
IV.

Qualified Immunity
Finally, DYFS Defendants claim they are entitled to qualified immunity. State actors are

entitled to qualified immunity as an affirmative defense against Section 1983 claims when “their
actions could reasonably have been thought consistent with the rights they are alleged to have
violated.”19 Anderson v. Creighton, 483 U.S. 635, 638 (1987). The Supreme Court has established
a two part test for determining whether a state actor is entitled to a defense of qualified immunity.
Saucier v. Katz, 533 U.S. 194, 201 (2001). This test asks “(1) whether the facts alleged by the
plaintiff show the violation of a constitutional right; and (2) whether the right at issue was clearly
established at the time of the alleged misconduct.” James v. City of Wilkes-Barre, 700 F.3d 675,

19

The Court solely analyzes whether DYFS employees may enjoy qualified immunity, as qualified immunity does
not extend to individuals being sued in their official capacities. Thus, DYFS directors may not claim qualified
immunity. See Morse v. Frederick, 551 U.S. 393, 400 (2007); Brandt v. Monte, 626 F.Supp.2d 469, 478
(D.N.J.2009) (“Qualified immunity is available only for individual capacity claims for damages.”); Disability Rights
New Jersey, Inc. v. Velez, Civ. No. 10-3950 DRD, 2011 WL 4436550, at *5 (D.N.J. Sept. 23, 2011).
21

679 (3d Cir. 2012) (citing Saucier, 533 U.S. at 201). In Pearson v. Callahan, 555 U.S. 223 (2009),
the Supreme Court held that courts were not required to analyze the first prong of Saucier before
proceeding to the second prong. Id at 240; Bayer v. Monroe Cnty. Children & Youth Servs., 577
F.3d 186, 191 (3d Cir. 2009).
While the Supreme Court has established that “qualified immunity questions should be
resolved at the earliest possible stage of litigation,” Anderson v. Creighton, 483 U.S. at 646 n.6,
the Court has noted that such questions can sometimes only appropriately be resolved on summary
judgment. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Indeed, the Third Circuit has held
that “it is generally unwise to venture into a qualified immunity analysis at the pleading stage as it
is necessary to develop the factual record in the vast majority of cases.” Newland v. Reehorst, 328
F. App’x 788, 791 n.3 (3d Cir. 2009). See also Coles v. Carlini, 2012 WL 1079446, at *9 (D.N.J.
Mar. 29, 2012). Questions of qualified immunity may only be resolved on a motion to dismiss
“when the immunity is established on the face of the complaint,” Thomas v. Indep. Twp., 463 F.3d
285, 291 (3d Cir. 2006), in other words, where “the plaintiff’s allegations [do not] state a claim of
violation of clearly established law.” Mitchell, 472 U.S. at 526. Accordingly, this Court will
analyze whether Plaintiff has alleged a violation of clearly established law to determine whether it
is appropriate to find that DYFS employees are entitled to qualified immunity at this stage of the
litigation.
The threshold test for determining whether DYFS employees meet the first prong of the
Saucier qualified immunity analysis is to “identify the specific constitutional right allegedly
infringed." Albright v. Oliver, 510 U.S. 266, 271 (1994). In the substantive due process context, to
determine whether Plaintiff has sufficiently pled that the constitutional right in question was
infringed upon, the Court must determine whether DYFS employees’ alleged actions are arbitrary

22

or “shock the conscience.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 (1998); see also Evans
v. Sec'y Pennsylvania Dep't of Corr., 645 F.3d 650, 660 (3d Cir. 2011). In order to meet this
standard, “[t]he defendant’s actions must be ‘an abuse of executive power so clearly unjustified
by any legitimate objective as to be barred by the Fourteenth Amendment.’” O’Donnell v. Simon,
2007 WL 2159596, at *12-*13 (D.N.J. July 25, 2007) (quoting Cnty. of Sacramento v. Lewis, 523
U.S. 833, 840 (1998)). There is no clearly stated method through which courts should determine
whether a defendant’s conduct has shocked the conscience because “’deliberate indifference that
shocks in one environment may not be so patently egregious in another.’” Levin v. Upper
Makefield Twp., 90 F. App’x 653, 661 (3d Cir. 2004) (quoting Lewis, 523 U.S. at 850). Thus, the
relevant inquiry may “begin[] . . . [with] asking whether or not the objective character of certain
conduct is consistent with our traditions, precedents, and historical understanding of the
Constitution and its meaning.”20 Id. (quoting Lewis, 523 U.S. at 857 (Kennedy, J., concurring)).
In determining whether a right was clearly established, the dispositive inquiry revolves
around whether “it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Saucier, 533 U.S. at 202. This must be “undertaken in light of the specific
context of the case, not as a broad general proposition.” Id. at 201.
DYFS Defendants do not dispute that Plaintiff has identified a specific Fourteenth
Amendment constitutional right allegedly infringed, i.e. Plaintiff’s right to parent her child. See
Davis v. Thornburgh, 903 F.2d 212, 225 (3d Cir. 1990); see also Lassiter v. Dept. of Social Serv.,
452 U.S. 18 (1981). And, indeed, to the extent Plaintiff asserts a substantive due process violation,

20
In the context of child protective workers or other social workers seeking qualified immunity from a
substantive due process claim asserted by a claimant, “a social worker need not have acted with the ‘purpose to cause
harm,’ but the standard of culpability for substantive due process purposes must exceed both negligence and deliberate
indifference, and reach a level of gross negligence or arbitrariness that indeed ‘shocks the conscience.’” Miller v. City
of Philadelphia, 174 F.3d 368, 375-76 (3d Cir. 1999).

23

DYFS Defendants also fail to contest whether their complained-of activity “shocks the
conscience.” See Defs.’ Br. At 17-18. Therefore, on this record, the Court must conclude that the
parties do not dispute that Plaintiff has met the first prong of the Saucier analysis.
However, DYFS Defendants do dispute whether Plaintiff has met the second prong of the
Saucier analysis by claiming a violation of clearly established law. DYFS Defendants argue that
their institution of an abuse and neglect complaint against Plaintiff was not clearly unlawful to
reasonable DYFS officers, because Plaintiff (1) admittedly tested positive for marijuana, (2)
reportedly, Plaintiff had also tested positive for cocaine and marijuana, and (3) Plaintiff’s husband,
Damon, also made allegations against her.
Here, accepting Plaintiff’s allegations as true and drawing all inferences in her favor, the
Verified Complaint and other actions taken against Plaintiff were “malicious” and DYFS
Defendants’ proffered reasons for pursuing her case are pretextual. See Am. Compl. at 89. Plaintiff
points to the following facts to support her position: (1) DYFS employees ignored their general
policy of not pursuing “every positive drug test as a case of abuse or neglect” and (2) Damon
Mammaro’s allegations were made “in an interview while he was on tranquilizers in a county jail
cell” awaiting hearings on charges related to his domestic abuse of Plaintiff and while testifying
at the Final Restraining Order Hearing. Further, DYFS employees continued to accept hearsay
allegations against Plaintiff “despite admissions by those [who] made them that they were using
their allegations to gain leverage against Plaintiff in her family law matters.” See Am. Compl. ¶¶
19-104. In spite of the alleged holes in DYFS employees’ case against Plaintiff and Plaintiff’s
good-faith attempt to comply with DYFS employees’ requirements during their investigation of
her, Plaintiff contends DYFS employees participated in the forcible removal of D.M. from
Plaintiff’s custody without a hearing. Plaintiff’s allegations paint the picture that DYFS employees

24

acted arbitrarily and malevolently to obstruct Plaintiff’s parental rights. At this preliminary stage
of the litigation, the Court finds that Plaintiff’s allegations may support her claim that DYFS
employees violated her clearly-established constitutional rights by engaging in conduct that is
sufficiently conscience-shocking or unlawful to a reasonable officer at the time. See Weaver v.
Marling, No. 2:12-CV-1777, 2013 WL 4040472, at *7 (W.D. Pa. Aug. 8, 2013).
Accordingly, the Court denies without prejudice DYFS Defendants’ request for qualified
immunity on Plaintiff’s remaining Section 1983 substantive due process claims against DYFS
employees. DYFS Defendants are free to renew their motion for qualified immunity on summary
judgment.
CONCLUSION
The Court grants DYFS Defendants’ motion to dismiss (1) all claims against DYFS, (2)
Counts Three through Seven against DYFS directors, (3) Plaintiff’s Section 1983 claims alleging
violations of the First, Fourth, Fifth, Sixth, and Eighth Amendments and the Fourteenth
Amendment’s equal protection clause; and (4) Plaintiff’s Section 1985 and Section 1986 claims.
The Court further denies DYFS Defendants’ motion to dismiss (1) DYFS directors in Counts One
and Two, (2) DYFS employees in Count Seven; (3) Plaintiff’s Section 1983 claims in Counts Four
and Five for violations of the Fourteenth Amendment’s due process clause against DYFS
employees on the basis of quasi-judicial immunity, in part and (4) on the basis of qualified
immunity, without prejudice. Counts One, Two, Four, Five, and Seven may proceed as limited by
the Court.

Dated:

January 15, 2015
/s/ Freda L. Wolfson
FREDA L. WOLFSON, U.S.D.J.

25