the Eleventh Amendment does not bar suits against Young in her individual
capacity under state law. Those claims, however, fail as a matter of law.
The New Jersey Legislature, in enacting the New Jersey Tort Claims
Act, declared that it is "to be the public policy of this State that
public entities shall only be liable for their negligence within the
limitations of this act and in accordance with the fair and uniform
principles established herein.*fn6 All of the provisions of this act
should be construed with a view to carry out the above legislative
declaration." N.J. Stat. Ann. § 59:1-2. A "public entity" includes
the "State, and any county, municipality, district, public authority,
public agency, and any other political subdivision or public body in the
State." N.J. Stat. Ann. § 59:1-3. An "employee" includes an
"officer, employee, or servant, whether or not compensated or part-time,
who is authorized to perform any act or service." N.J. Stat. Ann. §
59:1-3. Furthermore, a "public employee" means an employee of a public
entity. See id. The Act further provides that, "[e]xcept as otherwise
provided by this act, a public entity is not liable for an injury, whether
such injury arises out of an act or omission of the public entity or a
public employee or any other person." N.J. Stat. Ann. § 59:2-1a. A
public entity is liable for any injury that is proximately caused by an
act or omission of a public employee within the scope of his employment
"in the same manner and to the same extent as a private individual under
like circumstances," but is not liable for an injury resulting from an
act or omission of a public employee where the public employee is not
liable. See N.J. Stat. Ann. § 59:2-2. Neither a public employee, nor
a public entity, is liable for an injury that results from the exercise
of discretion or judgment vested in the employee or entity. See N.J.
Stat. Ann. §§ 59:2-3-59:3-2. Additionally, a public employee is not
liable if he acts in good faith in the execution or enforcement of any
law. See N.J. Stat. Ann. § 59:3-3. The Act further provides that it
does not exonerate a public employee from liability if it is established
that the employee was acting outside the scope of his or her employment,
or the employee's conduct rose to the level of a crime, fraud, actual
malice or willful misconduct. See N.J. Stat. Ann. at § 59:3-14a.
Turning first to the plaintiffs' claim for failure to investigate
asserted in Count IX of the complaint, the plaintiffs argue that Young
had "a statutory duty to investigate allegations of suspected child abuse
or neglect and to determine whether a child has been abused or
neglected," and further argue that Young breached that duty when she
accused Jane Doe of being drug involved during her pregnancy. See
Plaintiffs' Brief in Opposition to State Defendants' Motion to Dismiss at
29 (citing N.J. Stat. Ann. §§ 9:6-11 and 30:4C-11).
Neither of the statutes relied on by the plaintiffs, however, provide
for a private right of action on the facts alleged in this action. New
Jersey law provides that upon receipt of an allegation of child abuse or
neglect, DYFS "shall immediately
take such action as shall be necessary to insure the safety of the child
and to that end may request and shall receive appropriate assistance from
local and State law enforcement officials." N.J. Stat. Ann. § 9:6-8.11.
While it appears that under New Jersey law an accused child abuser has a
right to a hearing prior to being placed on a DYFS registry of abusers,
see In re Allegations of Sexual Abuse at East Park High Sch.,
714 A.2d 339, 349 (N.J.Super. Ct. App. Div. 1998), there is
nothing in the statute indicating that an accused abuser can maintain a
private right of action against DYFS or its employees for failing to
conduct a thorough investigation and, here, that is all that the plaintiffs
allege. The plaintiffs allege that DYFS and Young failed to perform a
confirmatory test on Baby Doe after Baby Doe's initial meconium test was
positive for opiates, see Complaint at ¶¶ 202-03, and that
DYFS and Young further failed to investigate the efficacy of the AZT
protocol prescribed by the plaintiffs' doctors prior to mandating the
treatment, see id. at ¶ 204. Assuming for purposes of this
motion that the defendants did not perform a thorough investigation, there
is no indication that New Jersey law provides a common law or statutory
right of action for such a failure. The plaintiffs have failed to cite a
single reported decision recognizing a cause of action for failure to
investigate under New Jersey law, and the Court's own research has
uncovered no such cause of action.
Moreover, even if New Jersey courts recognized a cause of action for
failure to investigate, which they have not, the plaintiffs' claims
against Young would be barred under the New Jersey Tort Claims Act. The
act provides that "[a] public entity is not liable for any injury caused
. . . by failing to enforce any law." N.J. Stat. Ann. § 59:2-4. In
Count IX of the complaint, the plaintiffs are attempting to do nothing
more than impose liability on the State Defendants for allegedly failing
to enforce state law requiring an investigation of abuse and neglect
complaints. Moreover, the plaintiffs have failed to allege that Young did
anything other than perform discretionary duties in her capacity as a
DYFS case worker. Thus, the plaintiffs' claims are barred under the New
Jersey Tort Claims Act. See N.J. Stat. Ann. §§ 59:2-3-59:3-2
Thus, the Court concludes that Young is not liable, as a matter of
law, for her alleged failure to investigate. Accordingly, the defendants'
motion to dismiss Count IX of the plaintiffs' complaint must be granted.
With respect to the plaintiffs' negligence claims asserted in Count X
of the plaintiffs' complaint, the plaintiffs appear to have abandoned
those claims. The defendants argue in their moving brief that, under the
New Jersey Tort Claims Act, DYFS can only be held liable for the
negligence of its employees to the same extent that the employee is
liable under State law, and that Young is immune from suit on a claim of
negligence under New Jersey law. See State Defendants Brief in Support of
Motion to Dismiss at 34. The plaintiffs' argue in opposition that Count X
of their complaint, notwithstanding its title"Negligence," "implicates
more than negligence" and in reality is a claim for "willful misconduct"
against Young. See Plaintiffs' Opposition Brief at 30.
The Court concludes, and the plaintiffs do not dispute, that both DYFS
and Young are immune from suit for negligence under N.J. Stat. Ann.
§ 59:3-3 (providing that state employee is "not liable if he acts in
good faith in the execution or enforcement of any law") and B.F. v.
Division of Youth and Family Srvs., 686 A.2d 1249, 1257 (N.J.Super.
App. Div. 199 7) (holding that DYFS and its employees are immune from suit
under the New Jersey Tort Claims Act for claims of negligence brought
plaintiff wrongly accused of abuse and neglect). Rather, relying on N.J.
Stat. Ann. § 59:3-14a the plaintiffs argue that their claim against
Young is for "willful misconduct."
The New Jersey Tort Claims Act provides that "[n]othing in this act
shall exonerate a public employee from liability if it is established
that his conduct was outside the scope of his employment or constituted a
crime, actual fraud, actual malice or willful misconduct." N.J. Stat.
Ann. § 59:3-14a. However, the terms "actual malice" and "willful
misconduct" as used in the act appear to refer to the requisite state of
mind of an employee acting outside the scope of her employment. If the
employee commits some underlying tort, such as assault, with scienter and
is acting outside the scope of her employment, that employee is not
entitled to the immunities provided in the Tort Claims Act. The
plaintiffs have not cited and the Court's own research has not uncovered a
single case under the New Jersey law recognizing a tort of "willful
misconduct" against a state officer.
Thus, the Court concludes that the plaintiffs' negligence claims
asserted in Count X of the complaint, which now are re-framed as claims
for "willful misconduct," are legally deficient. Accordingly, the
defendants' motion to dismiss Count X of the plaintiffs' complaint must
be granted for failure to state a claim upon which relief can be
Finally, The plaintiffs assert a claim against Young in Count VIII of
their complaint under NJLAD. See Complaint at ¶¶ 184-96.*fn7 The
State Defendants argue that they are not liable under NJLAD, as a matter
of law, because DYFS is not a place of public accommodation as defined in
the statute. The plaintiffs, without citing a single case interpreting
New Jersey law, argue that a state agency like DYFS is a place of public
accommodation under NJLAD.
The New Jersey Law Against Discrimination provides, in pertinent part,
that it shall be considered an unlawful act of discrimination "[f]or any
owner, lessee, proprietor, manager, superintendent, agent, or employee of
any place of public accommodation directly or indirectly to refuse,
withhold from or deny to any person any of the accommodations,
advantages, facilities or privileges thereof. . . ." N.J. Stat. Ann.
§ 10:5-12(f)(1). A place of public accommodation, in turn,
shall include, but not be limited to: any tavern,
roadhouse, hotel, motel, trailer camp, summer camp,
day camp, or resort camp, whether for entertainment of
transient guests or accommodation of those seeking
health, recreation or rest; any producer,
manufacturer, wholesaler, distributor, retail shop,
store, establishment, or concession dealing with goods
or services of any kind; any restaurant, eating
house, or place where food is sold for consumption on
the premises; any place maintained for the sale of ice
cream, ice and fruit preparations or their
derivatives, soda water or confections, or where any
beverages of any kind are retailed for consumption on
the premises; any garage, any public conveyance
operated on land or water, or in the air, any stations
and terminals thereof; any bathhouse, boardwalk, or
seashore accommodation; any auditorium, meeting
place, or hall; any theater, motion-picture house,
music hall, roof
garden, skating rink, swimming pool, amusement and
recreation park, fair, bowling alley, gymnasium,
shooting gallery, billiard and pool parlor, or other
place of amusement; any comfort station; any
dispensary, clinic or hospital; any public library;
any kindergarten, primary and secondary school,
trade or business school, high school, academy, college
and university, or any educational institution
under the supervision of the State Board of
Education, or the Commissioner of Education of
the State of New Jersey.
N.J. Stat. Ann. § 10:5-5(l).
Neither the State of New Jersey nor its agencies are listed entities in
NJLAD. While the list of places of public accommodation in the statute is
not intended to be exhaustive, the list has been used by New Jersey
courts as "a benchmark for determining whether the unlisted entity should
be included." See Dale v. Boy Scouts of America, 734 A.2d 1196, 1213
(N.J. 1999) (citing Board of Chosen Freeholders v. New Jersey,
732 A.2d 1053 (1999), rev'd on other grounds, 530 U.S. 640 (2000). A
brief review of the listed entities leads to the inescapable conclusion
that none of the listed entities even remotely resemble DYFS or any other
State agency. The list includes taverns, hotels, summer camps, retail
shops, restaurants, garages, bathhouses, music halls, pool halls,
libraries and schools. See N.J. Stat. Ann. § 10:5-5(l). Certainly,
had the legislature intended to include State agencies within NJLAD's
public accommodation provision, it would have included at least one term
reflecting that intent.
Moreover, even applying the tests employed by New Jersey courts to
determine whether an unlisted entity is considered a place of public
accommodation under NJLAD, DYFS does not fall within the statutory
definition. One key factor courts have looked to is whether the entity
engages in "broad solicitation" in an effort to attract the public to its
organization. See Dale, 734 A.2d at 1210; National Org. for Women v.
Little League Baseball, Inc., 318 A.2d 33, 37-38 (N.J.Super. Ct. App.
Div.), aff'd, 338 A.2d 198 (N.J. 1974). It cannot be said that a State
child welfare agency charged with enforcing anti-child abuse laws broadly
solicits the public to partake in its services.
Thus, the Court concludes that DYFS is not place of public
accommodation under NJLAD and, therefore, Young is not an employee of a
place of public accommodation liable under the act. Accordingly, the
defendants' motion to dismiss Count VIII of the plaintiffs' complaint
must be granted.
In summary, the State Defendants' motion to dismiss Counts V, VII,
VIII, IX, X and XI is granted. The State Defendants' motion to dismiss
Count VI is granted with respect to defendant Young only. All of
plaintiffs' claims asserted against defendants Young, Chichester, McHale
Weinberg and St. John are dismissed. The plaintiffs' only remaining
claims against the State Defendants are the Rehabilitation Act claim
asserted against DYFS in Count VI.
C. Motions of Defendants Capital Health Systems, Potako, Dix, Bennett
and Cahill for Judgment on the Pleadings
Capital Health Systems, Potako, Dix, Bennett and Cahill move for
judgment on the pleadings on the plaintiffs claims under the ADA, NJLAD,
NJAAA and for common law "tortious interference with parental rights."
1. Rule 12(c) Standard Governing Judgment on the Pleadings
A defendant may move to dismiss a complaint or parts of a complaint
before or after filing an answer. See Fed.R.Civ.P. 12(b)(6) and (c). A
motion made before an answer is filed is a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6). A motion made after an answer is filed is a motion
for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).*fn8 "A
defense of failure to state a claim upon which relief can be granted . .
. may be made in . . . [a] motion for judgment on the pleadings." See
Fed.R.Civ.P. 12(h)(2). Here, the motion was filed after the answer.
The standard under which the Court must analyze the plaintiff's
complaint and the defendants' arguments in a Rule 12(c) motion for
judgment on the pleadings is the same as the standard in a motion to
dismiss under Fed.R.Civ.P. 12(b)(6). See Fed.R.Civ.P. 12(h)(2); see also
Turbe v. Government of the Virgin Islands, 938 F.2d 427, 928 (3d Cir.
1991); Institute for Scientific Info., Inc. v. Gordon & Breach, Science
Publishers., Inc., 931 F.2d 1002, 1006 (3d Cir.), cert. denied,
502 U.S. 909 (1991).
Like Rule 12(b)(6), Rule 12(c) requires the Court "accept the
allegations in the complaint as true, and draw all reasonable factual
inferences in favor of the plaintiff. [The motion can be granted] only if
no relief could be granted under any set of facts that could be proved."
Turbe, 938 F.2d at 428 (citing Unger v. National Residents Matching
Program, 928 F.2d 1392, 1394-95 (3d Cir. 1991); see also Dykes v.
Southeastern Pennsylvania Transp. Auth., 68 F.3d 1564, 1565, n. 1 (3d
Cir. 1995); Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255
(3d Cir. 1994); Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994). A complaint may be dismissed for failure to state a
claim where it appears beyond any doubt that no relief could be granted
under any set of facts which could be proved consistent with the
allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
A complaint should not be dismissed unless it appears beyond doubt that
"the facts alleged in the complaint, even if true, fail to support the
claim." Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). Legal
conclusions made in the guise of factual allegations, however, are given
no presumption of truthfulness. See Papasan v. Allain, 478 U.S. 265, 286
(1986); see also Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d
Cir. 1997) ("[A] court need not credit a complaint's `bald assertions' or
`legal conclusions' when deciding a motion to dismiss").
A district court reviewing the sufficiency of a complaint has a limited
role. "The issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support his [or
her] claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Generally, when conducting such an inquiry, material beyond the pleadings
should not be considered. See In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997); Pension Benefit Guar. Corp. v. White
Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.), cert. denied, 510 U.S. 1042
(1994); Gannon v. Continental Ins. Co., 920 F. Supp. 566, 574 (D.N.J.
1996). When a court relies upon matters outside of the pleadings, it must
convert the motion to dismiss into a motion for summary judgment pursuant
to Fed.R.Civ.P. 56. See Fed.R.Civ.P. 12(c); Zucker v. Quasha,
891 F. Supp. 1010, 1013 (D.N.J. 1995), aff'd, 82 F.3d 408 (3d Cir.),
cert. denied, 519 U.S. 825 (1996). An exception to this rule is when the
Court relies upon documents to which the plaintiff refers in the
complaint. See Zucker, 891 F. Supp. at 1013 (citing Pension Benefit
Guarantee Corp. v. White Consolidated Industries, Inc., 998 F.2d 1192,
1196-97 (3d Cir. 1993)).
2. The Plaintiffs' Claims Against Cahill
Before turning to the merits of the Capital Health Defendants' motion
for judgment on the pleadings, the Court must address a more glaring
deficiency in the plaintiffs' claims asserted against Cahill. The
plaintiffs allege that defendant Cahill is a "nurse/midwife" employed by
Capital Health Systems, that Cahill refused Jane Doe's request for a
second HIV test, and that Cahill prescribed AZT for Jane Doe. See
Complaint at ¶¶ 17, 38 and 39. As with defendants Chichester,
McHale, Weinberg and St. John discussed in Part II.B.2., supra, the
plaintiffs do not assert any particular cause of action against Cahill.
Although the defendants raise this point in their motion for judgment on
the pleadings, the plaintiffs' brief in opposition is silent with respect
to Cahill and the plaintiffs appear to have abandoned any claims against
Thus, the Court concludes that the plaintiffs' complaint fails to state
a claim upon which relief can be granted against Cahill. Accordingly,
Cahill's motion for judgment on the pleadings must be granted.
3. Plaintiffs' ADA Claim
The plaintiffs assert claims against defendants Capital Health, Potako
and others in Count I of the complaint. See Complaint at ¶¶ 99-111.
The moving defendants argue that the plaintiffs' claims asserted in Count
I under the ADA fail as a matter of law because the defendants did not
deny the plaintiffs any services provided at the hospital and at all
times acted in the best interests of Baby Doe. The plaintiffs counter
that the complaint asserts a claim under the ADA based on the disparate
treatment Jane Doe received based on her HIV status. The defendants also
argue, relying on cases interpreting Title II of the ADA, that the
plaintiffs' ADA claim asserted against Potako must be dismissed because
Title III of the ADA does not provide for individual liability. The
plaintiffs argue in opposition that Title III, unlike Title II, of the
ADA, expressly provides for individual liability.
a) Plaintiffs' ADA claim against Capital Health.
Title III of the ADA proscribes a broad range of discrimination against
the disabled in places of public accommodation. See PGA Tour, Inc. v.
Martin, 121 S.Ct. 1879, 1889 (2001). The act provides, in pertinent
No individual shall be discriminated against on the basis
of disability in the full and equal enjoyment of the
services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any
person who owns, leases (or leases to), or operates a
place of public accommodation.
42 U.S.C. § 12182(a). It is a discriminatory act under Title III