NEWSON et al v. THE DEPARTMENT OF CHILDREN AND FAMILIES DIVISION OF CHILD PROTECTION AND PERMANENCY et al
OPINION filed. Signed by Judge Anne E. Thompson on 10/7/2014. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Curtis Eugene Newson, Aisha Newson, and
Civ. No. 14-5708
The Department of Children and Families
Division of Child Protection and
Permanency, et al.,
This matter has come before the Court on the application of pro se Plaintiffs
Curtis Eugene Newson and his daughters Aisha and Aliyyah Newson to proceed in forma
pauperis. (Doc. No. 1). The Court has reviewed the affidavit of indigence and the
Complaint. (Id.). Although the Court will grant Plaintiffs’ application to proceed in
forma pauperis, the Court will dismiss the Complaint for failure to state a claim upon
which relief may be granted.
Plaintiffs seek damages and an injunction against the Department of Children and
Families Division of Child Protection and Permanency (“DCF”). Plaintiff Curtis Newson
alleges that DCF employees unlawfully refused to place his daughters in his custody and
failed to inform him of their location even though he told them he had been awarded sole
and residential custody in a prior divorce proceeding. (Doc. No. 1 at 3). Moreover, Mr.
Newson alleges that as a result of DCF’s conduct, his two daughters ended up at a hotel
sharing the same bed with a boy, Aisha suffered a head injury, and Aliyyah was sexually
molested by a stranger. (Id. at 3-4). Although unclear, it appears that at the time, the
children had been under the temporary custody of their mother, Carmella Newson, who
had been previously arrested for abuse. (Id. at 3). Police and DCF employees
interviewed daughters Aisha and Aliyyah after the hotel incident, without Mr. Newson
present. (Id. at 4). Plaintiffs allege that Defendants failed to place Aisha and Aliyyah in
their father’s custody despite knowledge of the children’s poor living conditions and
knowledge of his lawful custody. (Id.). Plaintiffs assert a Fourteenth Amendment Due
Process violation and an Eighth Amendment violation. (Id.). They appear to be suing
Defendants for damages in their official and individual capacities and for an injunction
against DCF to ensure that children of opposite genders do not share the same bed and to
ensure that medical or psychological investigations of a child are recorded and conducted
in the presence of a parent. (Id. at 5).
In considering applications to proceed in forma pauperis, the court generally
engages in a two-step analysis. See Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir.
1990). First, the court determines whether the plaintiff is eligible to proceed under 28
U.S.C. § 1915(a). Id. Second, the court determines whether the Complaint should be
dismissed as frivolous or for failure to state a claim upon which relief may be granted, as
required by 28 U.S.C. § 1915(e). See id.
1. Application to proceed in forma pauperis
The filing fee for a civil case in the United States District of New Jersey is $350.00,
with an additional $50.00 administrative fee. To avoid paying these fees, a plaintiff may
submit an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. “In
making such application, a plaintiff must state the facts concerning his or her poverty
with some degree of particularity, definiteness or certainty.” Simon v. Mercer Cnty.
Comm. College, No. 10-5505, 2011 WL 551196, at *1 (D.N.J. Feb. 9, 2011) (citations
omitted). A litigant need not be “absolutely destitute” to qualify. Mack v. Curran, 457 F.
App’x 141, 144 (3d Cir. 2012) (citations omitted).
It appears from the application that Plaintiffs do not have any assets and receive a
total of $1,470 each month from social security, welfare, and food stamps. Upon review,
Plaintiffs have shown sufficient economic disadvantage to proceed in forma pauperis.
2. Dismissal under 28 U.S.C. § 1915(e)
Having granted Plaintiffs’ application to proceed in forma pauperis, the Court
must screen the Complaint to determine whether dismissal is warranted pursuant to 28
U.S.C. § 1915(e), which directs courts to sua sponte dismiss any claims that “fail to
state a claim upon which relief may be granted.” In making this determination, the Court
reviews the Complaint under the familiar pleading standards reiterated and clarified in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662
(2009). Specifically, Plaintiffs must assert “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. “Dismissal is appropriate where,
accepting all well-pleaded allegations in the Complaint as true and viewing them in the
light most favorable to the plaintiff, a court finds that the plaintiff has failed to set forth
‘fair notice of what the . . . claim is and the grounds upon which it rests.’” Simon v.
Mercer Cnty. Cmty. Coll., No. 10-5505 (GEB), 2011 WL 551196, at *1 (D.N.J. Feb. 9,
2011) (citations omitted). Finally, since Plaintiffs are pro se, courts must be mindful to
construe the complaint liberally in their favor. See Haines v. Kerner, 404 U.S. 519, 520–
21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
Eighth Amendment Claim
Plaintiffs assert that Defendants’ failure to release Aisha and Aliyyah Newson
into their father’s custody resulted in physical harm to them in violation of the Eighth
Amendment prohibition against cruel and unusual punishment. However, the Eighth
Amendment only applies to convicted prisoners. See City of Revere v. Mass. Gen. Hosp.,
463 U.S. 239 (1983); Ingraham v. Wright, 430 U.S. 651 (1977). Therefore, Plaintiffs’
Eighth Amendment claim will be dismissed with prejudice.
Fourteenth Amendment Claims
Plaintiffs appear to assert two Fourteenth Amendment violations: (1) Plaintiff
Curtis Newson claims that his parental rights were violated when DCF failed to release
his daughters into his custody and inform him of their location; and (2) Plaintiffs Aisha
and Aliyyah Newson assert that their rights were violated when, as a result of
Defendants’ failure to release them into their father’s custody, they were physically
harmed by a stranger. Both substantive Due Process claims will be dismissed for failure
to state a claim showing entitlement to relief. See Fed. R. Civ. P. 8(a)(2).
“A substantive due process claim requires a showing that a defendant deprived the
plaintiff of a protected property or liberty interest and that the deprivation ‘shocks the
conscience.’” Clayworth v. Luzerne Cnty., No. 3:11-CV-254, 2011 WL 6055407, at *3
(M.D. Pa. Dec. 6, 2011) (quoting Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008)). A
protected liberty interest exists for parents regarding “the custody, care and management
of their children,” and a state “has no interest in protecting children from their parents
unless it has some reasonable and articulable evidence giving rise to a reasonable
suspicion that a child has been abused or is in imminent danger of abuse.” Croft v.
Westmoreland Cnty. Child and Youth Servs., 103 F.3d 1123, 1125–26 (3d Cir. 1997). “In
the context of a social worker acting to separate parent and child, the standard of
culpability for a substantive due process violation ‘must exceed both negligence and
deliberate indifference, and reach a level of gross negligence or arbitrariness that indeed
shocks the conscience.’” Clayworth, 2011 WL 6055407, at *3 (quoting Miller v. City of
Phila., 174 F.3d 368, 375 (3d Cir. 1999)).
Plaintiffs’ first Due Process claim asserts that Defendants unlawfully interfered
with Plaintiff Mr. Newson’s protected parental rights. However, Plaintiffs’ Complaint
does not allege that Defendants had control, custody, or supervision over daughters Aisha
and Aliyyah Newson such that Defendants owed a duty to Plaintiffs to inform Mr.
Newson of his daughters’ location or to place his daughters in his custody. Indeed, the
Complaint states that Mr. Newson “agreed for his daughters to stay with the mom until
the remainder of the school year ending in June 2014.” (Compl. at 3). Plaintiffs’
Complaint fails to specify DCF’s role within the Newson family, and there is no
indication that Defendants knew where the children were or had control over them.
Therefore, Plaintiffs’ first Due Process claim will be dismissed without prejudice and
with leave to refile.
Plaintiffs’ second Due Process claim appears to assert that Defendants’ failure to
place Aisha and Aliyyah into their father’s custody resulted in Aisha and Aliyyah’s
physical harm from strangers. However, the Supreme Court has held that the Fourteenth
Amendment does not impose liability on state agencies for actions or omissions that
resulted in harm to children caused by a non-state, private actor when the children were
not in the State’s custody. See DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489
U.S. 189, 197 (1989) (holding that the Fourteenth Amendment does not apply to a county
social services department that failed to remove a child from his abusive father’s custody
despite receiving repeated notifications of abuse by the father; the court reasoned that “a
State’s failure to protect an individual against private violence simply does not constitute
a violation of the Due Process Clause”). Here, the Complaint suggests that Aisha and
Aliyyah were in their mother’s custody at the time of the alleged abuse, and there is no
indication that the abuser is in any way affiliated with DCF or the State. Thus, Plaintiffs’
second Due Process claim will be dismissed with prejudice.
Plaintiffs seek damages against Defendants in their official and individual
capacities. However, claims against Defendants in their official capacities are barred by
immunity. State officials acting in their official capacity are not deemed “person[s]”
within the meaning of 42 U.S.C. § 1983 to the extent plaintiffs seek retrospective
damages. See Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989). In addition, the
Eleventh Amendment protects states and their agencies and departments from suit in
federal court. Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
State officers can only be sued in their official capacity for an injunction, Ex Parte
Young, 209 U.S. 123 (1908), or in their individual capacity for damages, Hafer v. Melo,
912 F.2d 628, 635 (3d Cir. 1990) (“In a suit against state officials in their ‘personal’
capacity, however, where the plaintiff seeks recovery from the personal assets of the
individual, the state is not the real party in interest; the suit is therefore not barred by the
Eleventh Amendment.”). However, state officials sued in their individual capacity may
still be protected by qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800 (1982).
Here, DCF and its employees are protected in their official capacity against suits
for damages. See Sweet–Springs v. Dept. of Children and Families, Civ. No. 12–706,
2013 WL 3043644, at *5 (D.N.J. June 17, 2013) (“Courts in this district have long held
that DCF and DYFS are, beyond dispute, arms of the state for sovereign immunity
purposes.”) (internal citation omitted). Thus Plaintiffs’ claims for damages against
Defendants in their official capacity will be dismissed with prejudice, but claims for
damages against Defendants in their individual capacity may proceed.
In addition to damages, it appears that Plaintiffs seek an injunction to change
DCF’s practices to require that its investigations of children are recorded and conducted
in the presence of a parent and to ensure that children of the opposite sex do not share the
same bed. However, Plaintiffs have no standing to assert such an injunction. Under
Article III of the United States Constitution, only plaintiffs with standing may bring
claims in federal court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
To have standing, a plaintiff must assert (1) an injury in fact that is (a) concrete and
particularized and (b) actual or imminent; (2) a causal connection between the plaintiff’s
injury and defendant’s conduct and (3) a likelihood that judicial relief will redress
plaintiff’s injury. Id. If the plaintiff seeks injunctive relief, he must additionally allege
an immediate threat of future injury. See City of L.A. v. Lyons, 461 U.S. 95, 111 (1983).
Here, it does not appear that daughters Aisha and Aliyyah Newson were under DCF’s
custody or supervision. Nor has Plaintiff alleged that DCF’s actions in this case are
demonstrative of broader policies within the agency. Thus, Plaintiffs have not alleged an
actual or imminent threat of future injury that judicial relief will redress. Therefore,
Plaintiffs’ claims for an injunction to change DCF’s practices will be dismissed with
For the foregoing reasons, the Court will grant Plaintiffs’ application to proceed
in forma pauperis (Doc. No. 1), but will sua sponte dismiss the Complaint.1 An
appropriate Order accompanies this Opinion.
/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.
However, because it is conceivable that Plaintiffs may be able to supplement their
pleading with facts sufficient to state a Fourteenth Amendment claim with respect to
Defendants’ interference with Plaintiff Curtis Newson’s parental rights, the Court will
grant Plaintiffs leave to file an application to re-open, accompanied by a proposed
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