Filed: Oct. 28, 2010
Latest Update: Feb. 21, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 10-1613 HARVEY HOWARD; GERALD PETROVEY, Appellants v. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES; CLARENCE E. WHITTAKER, JR., ESQ., individually and in his former capacity as Dispositional Review Officer for the Division of Youth and Family Services; ROBERT LEASE, individually and in his capacity as Dispositional Review Officer for the Division of Youth and Family Services; and JOHN AND/OR JANE DOES 1-10 On Appeal fr
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 10-1613 HARVEY HOWARD; GERALD PETROVEY, Appellants v. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES; CLARENCE E. WHITTAKER, JR., ESQ., individually and in his former capacity as Dispositional Review Officer for the Division of Youth and Family Services; ROBERT LEASE, individually and in his capacity as Dispositional Review Officer for the Division of Youth and Family Services; and JOHN AND/OR JANE DOES 1-10 On Appeal fro..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 10-1613
HARVEY HOWARD; GERALD PETROVEY,
Appellants
v.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES;
CLARENCE E. WHITTAKER, JR., ESQ., individually and in his former
capacity as Dispositional Review Officer for the Division of Youth and
Family Services; ROBERT LEASE, individually and in his capacity as
Dispositional Review Officer for the Division of Youth and Family Services;
and JOHN AND/OR JANE DOES 1-10
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 08-cv-4934)
District Judge: Honorable Joel A. Pisano
Submitted Under Third Circuit L.A.R. 34.1(a),
October 7, 2010
Before: FUENTES, JORDAN, and ALDISERT, Circuit Judges.
(Opinion Filed: October 28, 2010)
OPINION OF THE COURT
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FUENTES, Circuit Judge.
Appellants, Harvey Howard and Gerald Petrovey, were both employed in the New
Jersey public schools. Based on incidents that occurred during the course of their
employment, pursuant to N.J. Stat. Ann. § 9:6-8.11, they were investigated by the New
Jersey Division of Youth and Family Services (“DYFS”) and found to have neglected or
abused students. For both Howard and Petrovey, the initial investigation by DYFS and
the first level of appeal did not include a hearing or a plenary proceeding in which they
could participate. The next level of review, however, entails a full administrative hearing
before the Office of Administrative Law (“OAL”); both Howard and Petrovey have
requested such hearings, which currently remain pending.
Section 9:6-8.11 also provides for the entry of the names of individuals found to
have abused or neglected a child into the New Jersey Child Abuse Central Registry.
Plaintiffs claim that the statute violates their due process rights under the United States
and New Jersey Constitutions as it permits the entry of their names into the registry
without a prior opportunity to be heard. They seek declaratory and injunctive relief,
attorney fees, and damages pursuant to 42 U.S.C. § 1983.
The District Court abstained from exercising jurisdiction over the instant suit in
light of the ongoing state proceedings.1 Such abstention was proper with respect to
Plaintiffs’ claims for declaratory and injunctive relief. Plaintiffs’ claims for damages and
1
The District Court did exercise jurisdiction to the limited extent that it ruled on the
merits of a Motion for a Preliminary Injunction filed by the plaintiffs, as more fully
described therein. See infra at 5.
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attorney fees against Defendants in their individual capacities, however, should have been
stayed rather than dismissed. For the reasons that follow, we will affirm in part and
vacate in part and remand to the District Court for further proceedings consistent with this
opinion. 2
I.
Because we write primarily for the parties, we only discuss the facts and
proceedings to the extent necessary for the resolution of the case.
This case involves a challenge to the constitutionality of N.J. Stat. Ann. § 9:6-
8.11, which provides for the entry of the name of an individual accused of abusing and/or
neglecting a child into the New Jersey Child Abuse Central Registry. Specifically, upon
receiving a report of child abuse, DYFS “shall initiate an investigation within 24 hours of
receipt of the report . . . . [DYFS] shall also, within 72 hours, forward a report of such
matter to the child abuse registry operated by the division in Trenton.” N.J. Stat. Ann.
§ 9:6-8.11. Authorized entities, such as DYFS, family day care providers, and child care
centers, may request information from the registry in limited circumstances such as
employment background checks and screening for foster or adoptive parents. Id. § 9:6-
8.10a.
2
The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1331. This Court has
jurisdiction under 28 U.S.C. § 1291. Except with respect to the plaintiffs’ Motion for A
Preliminary Injunction, the District Court abstained from exercising jurisdiction under
Younger v. Harris,
401 U.S. 37 (1971). “We exercise plenary review over the legal
determination of whether the requirements for abstention have been met. Once we
determine that the requirements have been met, we review a district court’s decision to
abstain under Younger abstention principles for abuse of discretion.” Addiction
Specialists, Inc. v. Twp. of Hampton,
411 F.3d 399, 408 (3d Cir. 2005) (internal quotation
marks & citation omitted).
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During the 2005–2006 school year, Howard was a special education teacher at
Joyce Kilmer Elementary School. In May 2006, there was an altercation between two
students in Howard’s classroom. Shortly thereafter, Howard resigned as an alternative to
being terminated. DYFS began an investigation into the altercation; this investigation did
not involve a hearing or plenary proceeding in which Howard could participate. In
August 2006, DYFS issued an investigative report finding that Howard had put two of his
students at substantial risk, which met the statutory requirement for child neglect, and
informed Howard that he could appeal. Howard filed an appeal, requesting a
dispositional review with Defendant-Appellee Clarence E. Whittaker.
Approximately two years later, having heard nothing, Howard’s attorney contacted
DYFS. In a letter dated August 14, 2008, DYFS informed Howard that its policy had
changed and that dispositional reviews no longer involved in-person or telephonic
hearings. Rather, DYFS reviewed the investigative report and other case information “to
determine if they provide sufficient support for the substantiation.” (Supplemental App.
(“S.A.”) at 20.) Howard’s Dispositional Review had been completed and the finding of
substantial neglect affirmed. Howard was given the opportunity for a full administrative
hearing before the OAL. Howard requested an OAL hearing, which is currently pending.
If the results of the OAL hearing are unfavorable, he may appeal to the Appellate
Division of the New Jersey Superior Court.
Petrovey was a custodian at Woodbridge High School during the 2000–2001
school year. In June 2000, a student at the school tripped Petrovey, causing him to fall
down some stairs and be seriously injured. The student then kicked Petrovey, and
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Petrovey struck the student. In March 2001, Petrovey reached a settlement with the
Woodbridge Township Board of Education and resigned. DYFS investigated the incident
and found, without a hearing or plenary proceeding, that physical abuse was
substantiated. Petrovey requested a dispositional review of the finding with Defendant-
Appellee Robert Lease. More than six years later, by letter dated May 2, 2007, DYFS
informed Petrovey that his dispositional review had been completed without a hearing
and that the finding of substantiated abuse had been affirmed. Petrovey requested an
OAL hearing, which remains pending. After the OAL hearing, Petrovey may appeal to
the Appellate Division of the New Jersey Superior Court.
Plaintiffs brought an action in federal court against DYFS and against Whittaker
and Lease, individually and in their capacities as Dispositional Review Officers for
DYFS. Plaintiffs allege that N.J. Stat. Ann. § 9:6-8.11 violates their due process rights
under the United States and New Jersey Constitutions. As previously noted, Plaintiffs
filed a Motion for a Preliminary Injunction to enjoin the ongoing state administrative
proceedings. Defendants opposed Plaintiffs’ request for a preliminary injunction and
filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The
District Court denied Plaintiffs’ motion, holding that they had failed to show any
likelihood of success on the merits or irreparable injury caused by a denial of injunctive
relief. Concluding that DYFS was immune from suit under the Eleventh Amendment and
that abstention was warranted in light of the ongoing state administrative proceedings, the
District Court granted Defendants’ motion to dismiss and closed the case. Plaintiffs
challenge both of these rulings.
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II.
The District Court abstained from exercising jurisdiction under Younger v. Harris,
401 U.S. 37 (1971). Younger abstention is appropriate where “(1) there are ongoing state
proceedings that are judicial in nature; (2) the state proceedings implicate important state
interests; and (3) the state proceedings afford an adequate opportunity to raise the federal
claims.” Addiction Specialists, Inc. v. Twp. of Hampton,
411 F.3d 399, 408 (3d Cir.
2005) (citing Gwynedd Props., Inc. v. Lower Gwynedd Twp.,
970 F.2d 1195, 1200 (3d
Cir. 1992)). Even when this test is met, there are two exceptions: “Younger abstention is
not appropriate when ‘(1) the state proceedings are being undertaken in bad faith or for
purposes of harassment or (2) some other extraordinary circumstances exist.” Lazaridis
v. Wehmer,
591 F.3d 666, 670 n.4 (3d Cir. 2010) (quoting Schall v. Joyce,
885 F.2d 101,
106 (3d Cir. 1989)).
Younger operates to bar suits for injunctive and declaratory relief. Anthony v.
Council, 316 F.3d 412, 418 n.6 (3d Cir. 2003) (citing Samuels v. Mackell,
401 U.S. 66, 73
(1971)). With respect to Plaintiffs’ injunctive and declaratory claims, all three
requirements for Younger abstention are satisfied. First, there are ongoing state
proceedings that are judicial in nature, as both Howard and Petrovey have pending OAL
hearings. Second, the protection of children from abuse and neglect is an important state
interest. Third, Plaintiffs may challenge the constitutionality of N.J. Stat. Ann. § 9:6-8.11
on due process grounds in the state proceedings. See Zahl v. Harper,
282 F.3d 204, 210
(3d Cir. 2002). Furthermore, neither of the exceptions to Younger applies here. Plaintiffs
do not claim that the DYFS proceedings are motivated by bad faith or for the purpose of
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harassment. We have explained that “circumstances are extraordinary in the relevant
Younger sense where they create an extraordinarily pressing need for immediate federal
equitable relief, and do not simply present a unique or unusual factual situation.” Sullivan
v. City of Pittsburgh, 811 F.2d 171, 179 (3d Cir. 1987) (internal quotation marks &
citations omitted). In arguing that abstention is improper here, Plaintiffs cite the long
duration of the state proceedings; this is insufficiently extraordinary to warrant federal
relief. Accordingly, we will affirm the dismissal of Plaintiffs’ claims for injunctive and
declaratory relief against all Defendants. 3
With respect to Plaintiffs’ claims for damages and attorney fees against Whitaker
and Lease in their individual capacities, however, we have held that “a district court,
when abstaining from adjudicating a claim for injunctive relief, should stay and not
dismiss accompanying claims for damages and attorney fees when such relief is not
available from the ongoing state proceedings.” Williams v. Hepting, 844 F.2d 138,
144–45 (3d Cir. 1988) (internal quotation marks & citation omitted). Here, the District
Court dismissed Plaintiffs’ damages and attorney fees claims against all Defendants
rather than staying them. 4
3
We also affirm the denial of plaintiffs’ motion for preliminary injunctive relief,
because, for the reasons cited by the District Court, the plaintiffs failed to demonstrate
entitlement to such relief.
4
Defendants argue that dismissal of these claims was nevertheless warranted based on a
declaration that they submitted with their response to the motion for preliminary
injunction that stated that names are not placed in the Registry during the pendency of an
appeal. (S.A. at 34–35.) It states further that as of the date of the declaration, no check of
the Registry had been requested or performed with respect to Howard. (Id. at 35.) “As a
general matter, a district court ruling on a motion to dismiss may not consider matters
extraneous to the pleadings. However, an exception to the general rule is that a document
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The damages and attorney fees claims against DYFS were properly dismissed
instead of stayed because DYFS is immune from suit under the Eleventh Amendment.
See Pa. Fed’n of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002)
(“[T]he Eleventh Amendment . . . has been interpreted to render states—and, by
extension, state agencies and departments and officials when the state is the real party in
interest—generally immune from suit by private parties in federal court.”). Whittaker and
Lease in their official capacities are similarly immune from a suit for damages. See
id.
While they can be sued in their official capacities for injunctive relief, see Ex Parte
Young,
209 U.S. 123, 155–56 (1908), such claims were subject to dismissal under
Younger. Accordingly, we will affirm the District Court’s dismissal of all claims,
including those for damages and attorney fees, against DYFS and against Whittaker and
Lease in their official capacities.
As to Plaintiffs’ claims for damages and attorney fees against Whittaker and Lease
in their individual capacities, the District Court should have stayed rather than dismissed
these claims. Thus, we will vacate the District Court’s Order with respect to these claims
only. 5
integral to or explicitly relied upon in the complaint may be considered without
converting the motion [to dismiss] into one for summary judgment.” In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (internal quotation marks &
citations omitted). The declaration submitted by Defendants does not fall into this
exception and thus may not be considered at the motion-to-dismiss stage. All of
Defendants’ arguments in favor of dismissal rely on this declaration and are thus
unavailing.
5
Plaintiffs raise various other challenges to the District Court’s dismissal order and the
order denying their motion for preliminary injunction. As these arguments are without
merit, we decline to address them further.
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III.
For the foregoing reasons, we affirm the District Court’s denial of Plaintiffs’
motion for preliminary injunction. We affirm in part and vacate in part the District
Court’s Order granting Defendants’ motion to dismiss and remand for further proceedings
in accordance with this opinion.
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