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DOE v. DIVISION OF YOUTH AND FAMILY SERV.
June 25, 2001
JANE DOE AND BABY DOE, PLAINTIFFS,
DIVISION OF YOUTH AND FAMILY SERVICES, ANDREA YOUNG, CATHEE CHICHESTER, PEGGY MCHALE, KEITH WEINBERG, MARY ANN ST. JOHN, CAPITAL HEALTH SYSTEM, INC., EVELYN POTAKO, JOANNE DIX, BETTY BENNETT, MARIETTA CAHILL,: PAUL LOEB, M.D., AND STEPHEN MOFFITT, M.D., DEFENDANTS.
The opinion of the court was delivered by: Brown, District Judge
This matter comes before the Court upon the motion to dismiss of the
defendants Division of Youth and Family Services ("DYFS"), Andrea Young,
Cathee Chichester, Peggy McHale, Keith Weinberg and Mary Ann St. John
(collectively, the "State Defendants"); upon the motion for judgment on
the pleadings of the defendants Capital Health System, Inc. ("Capital
Health" or "Capital Health Systems"), Evelyn Potako, Joanne Dix, Betty
Bennett and Marietta Cahill (collectively the "Capital Health
Defendants"); upon the motion to dismiss of the defendant Stephen
Moffitt, M.D.; and upon the motion of the plaintiffs for leave to file an
amended complaint. The Court has jurisdiction over the plaintiffs'
federal claims pursuant to 28 U.S.C. § 1331 and 1343(a) and
supplemental jurisdiction over the plaintiffs' state law claims pursuant
to 28 U.S.C. § 1367(a). For the reasons discussed below, the
defendants' motions to dismiss and for judgment on the pleadings are
granted in part and denied in part, and the plaintiffs' motion for leave
to amend the complaint is denied.
A. The Allegations of the Complaint
The plaintiff, Jane Doe,*fn1 alleges in her complaint that in February
1998 she began prenatal treatment at the Health Start Prenatal Program at
Capital Health System. See Complaint at ¶ 20. On February 9, 1998,
Jane Doe signed a written consent to random urine screening for drugs and
HIV testing of her blood. See id. at ¶¶ 21-22. At no time during her
pregnancy did the plaintiff's urine test positive for drugs. See id. at
The plaintiff alleges that at some point after February 1998, she
decided to withdraw her consent to be tested for HIV,
and further alleges
that Capital Health personnel failed to record her withdrawal in her
records. See id. at ¶¶ 24-25. Hospital staff periodically telephoned
the plaintiff and asked her to submit to testing, which she refused. See
id. at ¶¶ 26 and 28. The plaintiff alleges that notwithstanding her
refusal to be tested for HIV, in July 1998 defendant "Betty Bennett
caused Plaintiff Jane Doe's blood to be tested for HIV. . . . Id. at
¶ 35. Later, the plaintiff was advised that she tested positive for
HIV. See id. at ¶ 36. The plaintiffs further allege that "[t]he AZT
recommended protocol for HIV positive [pregnant] mothers include[s] [one]
AZT pill [five] times a day during pregnancy beginning in the
[fourteenth] week, [administration of AZT] during labor and delivery, and
[administration of AZT] to the newborn right after birth for [six]
weeks." Id. at ¶ 40. The defendant Marietta Cahill prescribed AZT to
Jane Doe to take during her pregnancy, which Doe began taking but later
stopped because of adverse side effects. See id. at ¶¶ 39 and 41. At
some point between July and October 1998, unnamed personnel at Capital
Health contacted DYFS and advised DYFS personnel that the plaintiff
tested positive for HIV, but were told by DYFS to call back after Baby
Doe was born as the situation was not ripe for intervention by DYFS. See
id. at ¶¶ 42-43.
On October 1, 1998, Jane Doe experienced labor pains and went to
Capital Health, but was told to return home as she was not yet ready to
deliver. See id. at ¶ 45. While at home, the plaintiff took Tylenol
with codeine to ease her pain, but the pain persisted and the plaintiff
returned to the hospital. See id. at ¶¶ 46-47. The plaintiff alleges
that upon her return to the hospital, defendant Paul Loeb, M.D., "openly
discussed her HIV status and the administering of AZT during labor and
delivery in front of the plaintiff's family, who prior to that time had
been unaware of her HIV status. See id. at ¶¶ 48 and 58. The
plaintiff refused AZT, Loeb notified the plaintiff that he would not
participate in the delivery, and the plaintiff again was sent home. See
id. at ¶¶ 49-50. However, before the plaintiff left the hospital, her
water broke and she was admitted to the hospital. See id. at ¶ 51.
The plaintiff alleges that she repeatedly asked for pain medication, but
refused intravenous medication, and was denied the medication my hospital
staff. See id. at ¶¶ 52-54. According to the plaintiff, AZT must be
administered intravenously to pregnant women during delivery. See id. at
On October 2, 1998, Jane Doe gave birth to a baby girl, Baby Doe. See
id. at ¶ 56. The plaintiff alleges that after the birth, defendant
Stephen Moffitt, M.D., openly discussed Jane Doe's HIV status in front of
her family, and notified the plaintiff of the recommended AZT protocol
for Baby Doe. See id. at ¶¶ 57-59. Jane Doe refused to permit the
hospital staff to administer the recommended protocol to Baby Doe. See
id. at ¶ 59.
On October 16, 1998, pursuant to a court order, Baby Doe was returned
to the care and custody of Jane Doe with mandatory in-home visitation by
DYFS. See id. at ¶ 81. Jane Doe was instructed by DYFS that she was
to administer AZT to Baby Doe. See id. at ¶ 82. On or about February
22, 1999, Jane Doe notified defendant Andrea Young that she had stopped
administering AZT to Baby Doe because the medication was making the child
ill. See id. at ¶ 86. DYFS filed a motion for temporary custody and
accused Jane Doe of abuse and neglect. See id. at ¶ 87. On February
24, 1999, the Honorable Gerald J. Council, J.S.C., ordered that Baby Doe
submit to medical treatment at the Robert Wood Johnson Hospital in New
Brunswick, New Jersey. See id. at ¶ 88.
On March 18, 1999, a diagnostic HIV DNA PCR test was performed on Baby
Doe at Robert Wood Johnson Hospital, which indicated that Baby Doe was
negative for HIV infection. See id. at ¶ 89. Accordingly, medical
personnel decided that further treatment was unnecessary and Jane Doe was
advised that there was no need to bring Baby Doe for additional scheduled
AZT treatments. See id. at ¶¶ 90-91.
On April 21, 1999, Yong filed an affidavit with a court accusing the
plaintiff of being drug involved at the time of Baby Doe's birth based on
Baby Doe's meconium testing positive for opiates. See id. at ¶ 92.
At an August 4, 1999 hearing, Jane Doe presented evidence that she was
not drug involved and that the meconium screening test was inaccurate.
See id. at ¶¶ 94-96. The Honorable Laurence Lerner, J.S.C., dismissed
the DYFS complaint against the plaintiff. See id. at ¶ 97. There is
no allegation in the complaint that Jane Doe and Baby Doe ever had any
further involvement with either the State Defendants or the Capital
On June 28, 2000, the plaintiffs filed an eleven-count complaint in
this Court against the defendants. The plaintiffs assert various
statutory and common law claims against non-state actors in Counts I-IV
of their complaint. In Count I, the plaintiffs assert a cause of action
against Capital Health Systems, Potako and Loeb under Title III of the
Americans With Disabilities Act, 42 U.S.C. § 12181, et seq. (the
"ADA"). In Count II, the plaintiffs assert a cause of action against
Capital Health Systems, Potako and Loeb under the New Jersey Law Against
Discrimination, N.J. Stat. Ann. § 10:5-1, et seq. ("NJLAD"). In Count
III, the plaintiffs assert a cause of action against Capital Health
System, Bennett, Potako, Dix and Moffitt under the New Jersey Aids
Assistance Act, N.J. Stat. Ann. § 26:5C-1, et seq. ("NJAAA"). The
plaintiffs assert a cause of action for common law tortious interference
with parental rights against Capital Health Systems, Potako and Dix in
Count IV of the complaint.
The plaintiffs seek in their prayer for relief a declaration that the
defendants violated the plaintiffs' rights under the United States
Constitution, the ADA, the Rehabilitation Act, the New Jersey
Constitution, NJLAD and the NJAAA. Additionally, the plaintiffs seek
compensatory and punitive money damages, attorneys fees and costs.*fn2
In November and December 2000, all of the defendants except Loeb moved
to dismiss or for judgment on the pleadings. Apparently in response to
the State Defendants' Eleventh Amendment argument, the plaintiffs filed a
motion for leave to amend their complaint to "name Charles Venti, the
Director of the Division of Youth and Family Services, in his official
capacity, as a defendant, name the other DYFS Defendants in their
official capacit[ies], and to add a prayer for relief seeking an
injunction against future enforcement of DYFS's policy of seizing
newborns based solely on a mother's HIV status and her refusal to
administer AZT to the baby." Plaintiffs' Brief in Support of Motion to
Amend Complaint at 1.
C. Claims Against the Individual Defendants
The plaintiffs have asserted different legal claims against the various
individual defendants based on their involvement with the plaintiffs.
Thus, the Court must identify the specific factual allegations and legal
claims asserted against each individual defendant.
Generally, the plaintiffs allege that DYFS became involved with them on
or about October 2, 1998 after the birth of Baby Doe when the agency was
contacted by Capital Health personnel about Jane Doe's refusal to permit
the hospital to administer AZT to Baby Doe. The plaintiffs allege that
DYFS violated the plaintiffs' rights when it went to court and obtained
orders permitting the hospital to treat Baby Doe notwithstanding Jane Doe
refusing consent. Additionally, the plaintiffs allege that DYFS falsely
charged Jane Doe with child abuse and neglect based on the first meconium
screening's positive test for opiates.
The plaintiffs assert that DYFS's conduct and policies violated the
plaintiffs' substantive due process rights to privacy and familial
relations, violated the Rehabilitation Act, violated the ADA, violated
NJLAD, and violated the New Jersey Constitution. The plaintiffs also
assert common law causes of action against DYFS for failure to
investigate and for negligence.
The plaintiffs seek in their complaint both money damages and
declaratory relief against DYFS.
The plaintiffs allege that Andrea Young was the case manager involved
with the plaintiffs' case, and that Young filed a false affidavit in
state court charging Jane Doe with being drug involved during her
pregnancy. See Complaint at ¶¶ 8 and 83. The complaint does not
specify whether Young is being sued in her individual or official
The plaintiffs assert causes of action against Young under the
Rehabilitation Act, the ADA, NJLAD, and for state common law failure to
investigate and negligence.
The plaintiffs allege that Chichester "was, at all times material, a
supervisor employed by Defendant DYFS." Id. at ¶ 9. This is the only
mention of Chichester in the complaint. The complaint does not indicate
whether Chichester is sued in her individual or official capacity, does
not assert any particular legal claim against Chichester, and does not
allege that Chichester had any direct involvement with the plaintiffs or
that Chichester was responsible for DYFS policymaking that affected the
The plaintiffs allege that McHale "was, at all times material, the
district office manager employed by Defendant DYFS." Id. at ¶ 10.
This is the only mention of McHale in the complaint. The complaint does
not indicate whether McHale is sued in her individual or official
capacity, does not assert any particular legal claim against McHale, and
does not allege that McHale had any direct involvement with the
plaintiffs or that McHale was responsible for DYFS policymaking that
affected the plaintiffs.
The plaintiffs allege that Weinberg was a caseworker employed by DYFS
and that he served Jane Doe with a "hospital hold" on or about October
2, 1998, which she refused to sign. See id. at ¶¶ 11 and 65. This is
the only mention of Weinberg in the complaint. The complaint does not
indicate whether Weinberg is sued in his individual or official
capacity, does not assert any particular legal claim against Weinberg,
and does not allege that Weinberg had any direct involvement with the
plaintiffs other than serving a document on Jane Doe on October 2, 1998,
or allege that Weinberg was responsible for DYFS policymaking that
affected the plaintiffs.
The plaintiffs allege that St. John "was, at all times material, a
caseworker employed by Defendant DYFS." Id. at ¶ 12. This is the
only mention of St. John in the complaint. The complaint does not
indicate whether St. John is sued in her individual or official
capacity, does not assert any particular legal claim against St. John,
and does not allege that St. John had any direct involvement with the
plaintiffs, or allege that St. John was responsible for DYFS policymaking
that affected the plaintiffs.
7. Capital Health Systems
The plaintiffs assert causes of action against Capital Health under the
ADA, NJLAD, NJAAA and for common law tortious interference with parental
The plaintiffs allege that Potako was employed as a nurse by Capital
Health Systems. See id. at ¶ 14. The plaintiffs further allege that
Potako contacted DYFS on or about October 2, 1998 and informed DYFS that
Jane Doe was HIV positive and that she had refused consent to have the
hospital treat Baby Doe. See id. at ¶¶ 60 and 62.
The plaintiffs assert claims against Potako under the ADA, NJLAD, NJAAA
and for tortious interference with parental rights.
The plaintiffs allege that Dix is a social worker employed by Capital
Health Systems. See id. at ¶ 15. The plaintiffs further allege that
on or about October 2, 1998 Dix contacted DYFS and disclosed that Jane
Doe tested HIV positive. See id. at ¶ 61.
The plaintiffs assert claims against Dix under NJAAA and for tortious
interference with parental rights.
The plaintiffs allege that Bennett is an employee of Capital Health
Systems who caused Jane Doe's blood to be tested for HIV notwithstanding
the fact that Doe had withdrawn her consent to be tested. See id. at
¶¶ 16 and 35.
The plaintiffs assert claims against Bennett under NJAAA only.
The plaintiffs allege that Cahill is a "nurse/midwife" employed by
Capital Health Systems. See id. at ¶ 17. This is the only mention of
Cahill in the complaint. The plaintiffs do not assert any particular
legal claim against Cahill, and do not allege that Cahill had any
involvement with the plaintiffs or DYFS.
The plaintiffs allege that Dr. Loeb was a doctor employed by Capital
Health Systems, who disclosed to the plaintiffs' relatives that Jane Doe
was HIV positive and refused to deliver Baby Doe after Jane Doe refused
intravenous AZT treatment. See id. at ¶¶ 18, 48-49.
The plaintiffs assert claims against Dr. Loeb under the ADA, NJLAD and
NJAAA. Dr. Loeb is the only defendant who has not filed a dispositive
13. Stephen Moffitt, M.D.
The plaintiffs allege that Dr. Moffitt was employed by Capital Health
Systems, and that he openly discussed Jane Doe's HIV status in front of
her relatives. See id. at ¶¶ 19 and 57.
The plaintiffs assert a claim against Dr. Moffitt under NJAAA only.
The Court will first address the plaintiffs' motion seeking leave to
file an amended complaint and then turn to the defendants' respective
motions to dismiss or for judgment on the pleadings.
A. Plaintiffs' Motion for Leave to File an Amended Complaint
1. Rule 15 Standard Governing Leave to Amend
The Federal Rules of Civil Procedure provide that a party may amend
pleading once before a responsive pleading is served, or thereafter
upon leave of court or on consent from his adversary. Fed.R.Civ.P. 15(a).
The rule states that "leave should be freely given when justice so
provides." Id. The decision whether to grant leave to amend rests with the
sound discretion of the trial judge and will be overturned on appeal only
upon a finding of abuse of discretion. See Oran v. Stafford, 226 F.3d 275,
291 (3d Cir. 2000) (citation omitted); Rolo v. City Investing Co.
Liquidating Trust, 155 F.3d 644, 654 (3d Cir. 1998) (citing Howze v.
Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984)).
Additionally, leave can be granted at any time during the litigation,
even after judgment or on appeal. See 6 C. Wright, A. Miller & M. Kane,
Federal Practice and Procedure: Civil 2d § 1488 (West 1990). "If the
underlying facts or circumstances relied upon by a plaintiff may be a
proper subject of relief, he ought to be afforded an opportunity to test
his claim on the merits." Foman v. Davis, 371 U.S. 178 (1962).
The Third Circuit has adopted a particularly liberal approach to the
amendment of pleadings to ensure that "a particular claim will be decided
on the merits rather than on technicalities." Dole Arco Chemical Co.,
921 F.2d 484, 486-87 (3d Cir. 1990) (citing 6 C. Wright, A. Miller & M.
Kane, Federal Practice and Procedure: Civil 2d § 1471 (West 1990)).
However, the allowance should not be automatic. See Dover Steel Co.,
Inc. v. Hartford Accident and Indemnity Co., 151 F.R.D. 570, 574 (D.N.J.
1993). Leave should be granted absent a showing of "undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of the allowance of the amendment, futility
of amendment, etc." Foman, 371 U.S. at 182. See also Oran, 226 F.3d at
291; Heyl & Patterson Int'l, Inc. v. F.D. Rich Housing of the Virgin
Islands, Inc., 663 F.2d 419, 425 (3d Cir. 1981), cert. denied sub nom.,
F.D. Rich Housing of the Virgin Islands v. Government of the Virgin
Islands, 455 U.S. 1018 (1982). "Futility of amendment is shown when the
claim or defense is not accompanied by a showing of plausibility
sufficient to present a triable issue." Harrison Beverage, 133 F.R.D. at
468 (internal quotations omitted). See also Gasoline Sales, Inc. v. Aero
Oil Co., 39 F.3d 70, 74 (3d Cir. 1994); Reaves v. Sielaff,
382 F. Supp. 472, 474-75 (E.D.Pa. 1977) (denying leave to amend because
plaintiff did not have standing to litigate amended claims for injunctive
relief). Futility of amendment means that the complaint as amended does
not state a claim upon which relief can be granted. See In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). If the
amendment would not withstand a motion to dismiss, leave must be denied.
See Miller, 844 F. Supp. at 1001; see also Fishbein Family P'ship v. PPG
Indus., Inc., 871 F. Supp. 764, 768 (D.N.J. 1994) (applying motion to
dismiss standard to claim of "futility of amendment" when third-party
defendant sought to name additional party). "This does not require the
parties to engage in the equivalent of substantive motion practice upon
the proposed new claim or defense; this does require, however, that the
newly asserted [claim] appear to be sufficiently well-grounded in fact or
law that it is not a frivolous pursuit. See Harrison, 133 F.R.D. at 469.
Accordingly, "the Court must accept as true the allegations in [the
proposed amended complaint] and construe those allegations in the light
most favorable to
the [plaintiffs]." Miller, 844 F. Supp. at 1001.
Procedurally, Rule 7.1(e)(2) of the Local Civil Rules of the United
States District Court for the District of New Jersey ("L.Civ.R.")
requires the moving party to attach to their moving papers a copy of the
proposed amended pleading. The plaintiffs have not done so.
2. Plaintiffs' Proposed Amendments
Here, the defendants do not argue that they would suffer prejudice if
leave were granted. Rather, the defendants argue that leave should be
denied because amendment would be futile.
Apparently after being presented with the State Defendants' motion to
dismiss on Eleventh Amendment immunity grounds, the plaintiffs seek leave
to amend to "name Charles Venti, the Director of the Division of Youth
and Family Services, in his official capacity, as a defendant, name the
other DYFS Defendants in their official capacit[ies], and to add a prayer
for relief seeking an injunction against future enforcement of DYFS's
policy of seizing newborns based solely on a mother's HIV status and her
refusal to administer AZT to the baby." Although it is difficult to
ascertain the precise contours of the plaintiffs' amended pleading
because the plaintiffs did not include a copy of their proposed amended
complaint with their moving papers as required by L.Civ.R. 7.1(e)(2), the
plaintiffs appear to be attempting to bring their claims within the Ex
Parte Young exception to state sovereign immunity in response to the
defendants' Eleventh Amendment immunity defense by seeking prospective
injunctive relief against Venti and the other DYFS defendants in their
The Court concludes that granting the plaintiffs leave to amend would
be futile because the plaintiffs cannot satisfy the constitutionally
irreducible minimum standing requirements for their proposed amendments.
At a minimum, a plaintiff seeking to invoke the jurisdiction of this
Court must establish three elements as an indispensable part of his or
her case in order to satisfy the Article III "case or controversy"
requirements. See City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983)
(citations omitted). "First, the plaintiff must have suffered an
injury-in-fact — an invasion of a legally protected interest which
is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical. Second, there must be a causal connection
between the injury and the conduct complained of — the injury has
to be fairly . . . trace[able] to the challenged action of the defendant
and not . . . th[e] result [of] the independent action of some third
party not before the court. Third, it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision."
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (citations and
internal quotation marks omitted). When ...