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Love v. New Jersey Division of Youth & Family Services

July 22, 2010


The opinion of the court was delivered by: Irenas, Senior District Judge


This case arises out of the "categorically deplorable*fn1 " and, indeed, criminal behavior of Defendant Bruce Fitzgerald. However, Fitzgerald has not answered the Complaint, and no one has entered an appearance on his behalf.*fn2 The principal issue raised by the other Defendants' instant summary judgment motion is whether the State of New Jersey, or its employees, may be held liable for their alleged failings in connection with Fitzgerald's conduct. Because the Court holds that, as a matter of law, they cannot, their Motion for Summary Judgment will be granted.*fn3


During the relevant time period, Plaintiff Helen Love was a foster parent to A.D., a foster child in the New Jersey foster care system administered by Defendant New Jersey Division of Youth and Family Services ("DYFS"). Defendant Fitzgerald, a DYFS employee, was Love's and A.D.'s "Family Service Worker." (Pl's Response to Defs' Statement of Undisputed Facts ("SUF") ¶ 6)*fn4

Defendant Fisher was Fitzgerald's immediate supervisor, and Defendant Crummy was acting director of DYFS.

For the purposes of the instant Motion, the following facts are undisputed. In July, 2005, Fitzgerald physically forced Love to have sexual intercourse with him against her will in the bedroom of her house. (Love Dep. p. 103) Prior to this incident, Fitzgerald had made two other unwanted sexual advances at Love. (Love Dep. p. 92-93, 95-97)*fn5

On August 10, 2005, while alone with A.D. in Love's house, Fitzgerald directed A.D. to undress and pose in a sexually explicit manner while he took photographs of her. In connection with this incident, Fitzgerald pleaded guilty to criminal sexual contact and official misconduct and was sentenced to a term in New Jersey State prison.*fn6 DYFS also fired him as a result of the incident.

After an investigation of the incident with A.D., DYFS removed A.D. from Love's care because Love: (1) allowed A.D. to be alone with Fitzgerald after his sexual assault on Love; and (2) failed to follow child abuse reporting guidelines. (Defs' Ex. J, Q) DYFS also revoked Love's license to provide in-home childcare to non-foster children.*fn7 Love does not dispute that she did not report to DYFS or the police, either her encounters, or A.D.'s encounter, with Fitzgerald.*fn8 She has repeatedly explained that she was extremely afraid of Fitzgerald and worried that no one would believe her if she reported him.

When these events occurred, Love was in the process of adopting A.D. After A.D. was removed from Love's home, another family adopted A.D.

Other than the incidents described above, there is no record evidence demonstrating that during his 26-year career at DYFS (Defs' Ex. T), Fitzgerald ever had a sexual relationship--consensual or otherwise-- with any other foster parent or child. Nor does the record disclose any other violent or threatening behavior by Fitzgerald.

Love filed the instant Complaint on August 3, 2007, alleging seven counts: (1) claims against all Defendants pursuant to 42 U.S.C. § 1983 for violation of Love's 14th Amendment rights (specifically, her rights to substantive due process and equal protection of the law); (2) assault and battery against Fitzgerald; (3) violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12, apparently against all Defendants; (4) negligence against all Defendants except Fitzgerald; (5) "gross insult," against DYFS only; (6) "professional negligence" against all Defendants; (7) violation of the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c), against all Defendants.

The appearing Defendants (i.e., all Defendants except Fitzgerald) presently move for summary judgment.


Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is material only if it will affect the outcome of a lawsuit under the applicable law, and a dispute of a material fact is ...

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