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September 28, 1998

P.F., on her own behalf and on behalf of T.F., S.F., and N.F., minor children,
JEAN MENDRES and PAT BALASCO-BARR, in her capacity as Director of Division of Youth and Family Services.

The opinion of the court was delivered by: COOPER


 COOPER, District Judge

 This matter comes before the Court on the motion by defendants Jean Mendres and Pat Balasco-Barr to dismiss plaintiffs' Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons expressed below, the motion is denied without prejudice to the right of defendant Mendres to raise the issue of qualified immunity in a properly supported motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. The motion is granted as to defendant Balasco-Barr, and her successor as the Director of the State of New Jersey Division of Youth and Family Services ("DYFS") is directed to be substituted as a party defendant in this case.


 As this motion is premised upon Federal Rule of Civil Procedure 12(b)(6), we must take all factual allegations in the Complaint as true. Accordingly, this factual background is based upon the facts as they are alleged in the Complaint filed in this matter. Plaintiff P.F. is an approved foster mother and special home service provider with DYFS. (Compl. P 2.) At the time the claims arose in August 1995, DYFS had placed two "medically fragile" children with P.F., along with a third child not designated in the Complaint as "medically fragile." Plaintiff N.F. was born in May 1994. (Id. P 7.) Shortly after N.F. was born, P.F. expressed an interest in providing a home for the infant N.F. It appears that the other plaintiffs named in this case, S.F. and T.F., are the other children in plaintiff P.F.'s care. N.F. and S.F. are biological siblings, and T.F. and S.F. are HIV positive. (Id. P 2-3, 10.)

 P.F.'s initial request to provide a home for N.F. was denied by Janice Malec ("Malec"), Central Regional Administrator of DYFS. (Id. P 7.) On January 3, 1995, P.F. sought reconsideration of Malec's decision. On May 19, 1995, Eileen Crummy ("Crummy"), manager of the "Adoption Resource Center (ARC)/Central" informed P.F. that her request for reconsideration was denied. (Id. P 8-9.)

 P.F. immediately sought further review of the decision by requesting a Regional Dispositional Conference/Review. On August 3, 1995, Mary C. McArdle, Administrative Review Officer of the Northern Regional Office of DYFS, notified P.F. that a final agency decision had been made overturning the May 19, 1995 decision, and placing N.F. in P.F.'s care. (Id. P 10.)

 Plaintiffs next allege that on August 14, 1995, defendant Mendres, the Deputy Director of DYFS, sua sponte notified P.F. by letter that she was reversing the decision of the Dispositional Conference. We will refer to this letter herein as "the August 14 letter." Plaintiffs' Complaint states that the August 14 letter "contained confidential HIV information." (Id. P 11.) The Complaint does not state, however, whose HIV information was disclosed. *fn1" (Id.) Other persons to whom the letter was distributed include the following: (1) defendant Balasco-Barr; (2) Malec; (3) Rose Seltzer, a supervisor in the DYFS Office of Adoption Operations and Support; (4) Virginia Coons, a DYFS employee; (5) Donna Youngkins, a subordinate of Rose Seltzer; (6) Joyce Manrazini, the "Law Guardian" of Monmouth County, and (7) Ellen McNamara, an investigator for Manrazini. (Id. P 13.) The Complaint further states that "P.F. did not authorize or consent to disclosure of the HIV information contained in the letter." (Id. P 14.) Plaintiffs also allege that "on information and belief, the letter was placed in the P.F. case file where it is available to any DYFS employee who has access to the file." (Id. P 15.)

 DYFS again reversed its decision in January 1996, and allowed N.F. to be placed in P.F.'s foster care. On July 31, 1997, plaintiffs filed a Complaint in this Court, alleging that defendants Jean Mendres ("Mendres") and Pat Balasco-Barr ("Balasco-Barr") violated 42 U.S.C. § 1983, the New Jersey Constitution, and New Jersey state law by disseminating the August 14 letter to various other individuals named in the Complaint. Plaintiffs claim that Mendres disclosed "confidential HIV information" with "no legitimate need" to defendant Balasco-Barr, Maltec, Seltzer, Coons, Youngkins, Manrazini and McNamara. (Id. P 18.) Although the Complaint is not a model of clarity, it appears that Count I of plaintiffs' Complaint alleges that defendants are liable under 42 U.S.C. § 1983 for a violation of plaintiffs' right to privacy protected by the Ninth and Fourteenth Amendments to the United States Constitution. (Compl., Count I.) Count II alleges that defendants violated plaintiffs' right to privacy under Article 1, Section 1 of the New Jersey Constitution. (Id., Count II.) Count III alleges that defendant Mendres's dissemination of a letter containing HIV information without plaintiffs' consent violates N.J. Stat. Ann. § 26:5C-7 et seq., and "continues to violate the statute each day the letter remains in the file." (Id., Count III P 26.) Finally, Count IV alleges that Mendres's decision to unilaterally reverse the final agency decision regarding placement of N.F. with P.F. without notifying the prospective foster parent, in the absence of any established procedure permitting such conduct, violated plaintiffs' right to due process under the Fourteenth Amendment to the United States Constitution. (Id., Count IV.) We construe this last claim as one which is pursued under 42 U.S.C. § 1983, but that it is premised upon an alleged constitutional deprivation apart from that which is described in Count I. Plaintiffs seek the following relief: (1) a judgment requiring DYFS to remove the August 14 letter from its files, (2) damages against Mendres in her individual capacity, and (3) attorney's fees and costs. (Id., Relief Requested.)

 Defendants Mendres and Balasco-Barr filed a motion to dismiss the Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants make the following arguments in support of dismissal of the Complaint with prejudice: (1) both defendants are entitled to qualified immunity from suit against them in their individual capacity concerning the disclosure of the "confidential HIV information" in the August 14 letter; (2) suit against Balasco-Barr in her official capacity must be dismissed because she is no longer the Director of DYFS; and (3) suit against Mendres in her individual capacity is barred by the Eleventh Amendment. *fn2"


 A court may dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) "only if, accepting all alleged facts as true, the plaintiff is not entitled to relief." Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir. 1986) (citations omitted). Further, all reasonable inferences that can be drawn from the plaintiff's allegations "must be accepted as true and viewed in the light most favorable to the non-moving party." Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987) (citations omitted).

 A. Dismissal of Count I Based upon Doctrine of Qualified Immunity

 Count I alleges that Mendres's actions violated plaintiffs' right to privacy which is guaranteed by the United States Constitution. While not specifically designated as such, Count I can fairly be read to assert a claim premised upon 42 U.S.C. § 1983. A person seeking to recover under § 1983 "must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988). Plaintiffs here claim that their right to privacy was violated: (1) by Mendres's dissemination of the August 14 letter ...

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