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Estate of Lydia Joy Perry, Deceased, By Vivian Kale v. Debra Sloan

May 31, 2011

ESTATE OF LYDIA JOY PERRY, DECEASED, BY VIVIAN KALE, CO-ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF LYDIA JOY PERRY, AND JANET FANDEL, CO-ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF LYDIA JOY PERRY,
PLAINTIFF,
v.
DEBRA SLOAN, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Thompson, U.S.D.J.

NOT FOR PUBLICATION

OPINION & ORDER

I. INTRODUCTION

This matter comes before the Court upon the Motion to Dismiss [docket # 22] filed by Defendants State of New Jersey, Department of Human Services, Division of Developmental Disabilities (DHS-DDD), and Jennifer Velez (collectively, "State Defendants"). Plaintiff has opposed the motion [28]. The Court has decided the matter upon consideration of the parties' submissions, without holding oral argument, pursuant to Fed. R. Civ. P. 78(b). For the reasons given below, the motion is granted in part and denied in part.

II. BACKGROUND*fn1

Plaintiff in this case is the Estate of Lydia Joy Perry, who died intestate. Perry was born in 1941 with a developmental disability. (Compl. ¶ 6) [1]. In 1985, she was placed in the custody of the New Jersey Department of Human Services, Division of Developmental Disabilities (DHS-DDD). (Id.) In 2006, she was transferred to a Community Care residence, operated out of the home of Defendant Debra Sloan under contract with the State of New Jersey. (Id. at ¶ 23.) Sloan was highly recommended by Defendant Bridget Grimes, who worked as a Habilitation Planning Coordinator at DHS-DDD and served as Perry's case-manager. (Id. at ¶ 24.) Plaintiff alleges that Grimes took active steps to keep Perry in Sloan's home and to persuade Perry's family members to keep Plaintiff there. (Id.)

During her residency in Sloan's home, Perry was subjected to abuse, neglect, harassment and other mistreatment. (Id. at ¶ 25.) Sloan and Grimes were indicted in 2009 for various crimes arising out of their treatment of Perry and two other disabled women in Sloan's care. (Id. at ¶ 26.) DHS-DDD later substantiated the allegations that Sloan and Grimes had mistreated and denied adequate care to Perry and, particularly, that the Defendants had failed to provide Perry with a needed colonoscopy. (Id. at ¶ 30.) In September 2008, Perry was transferred to the home of Defendant Dorothy Purdy, but the neglect continued. (Id. at ¶ 32--33.) DHS-DDD later substantiated the allegations of neglect against Purdy and found that Purdy was unable to provide the level of care and supervision Perry needed. (Id. at ¶ 34.) Perry died on August 17, 2009, as a result of a gastrointestinal hemorrhage, which Plaintiff claims was a result of Defendants' failure to provide Perry with necessary medical care. (Id. at ¶ 34.)

Plaintiff-Perry's Estate-filed this action on September 10, 2010, alleging claims against various defendants for violation of the United States Constitution, the New Jersey Constitution, and New Jersey statutory and common law. The State Defendants have now moved to dismiss several counts of the Complaint for failure to state a claim upon which relief can be granted.

III. LEGAL STANDARD

Under Fed. R. Civ. P. 12(b)(6), a defendant bears the burden of showing that no claim has been presented. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). When considering a 12(b)(6) motion, a district court must accept as true all of a plaintiff's well-pleaded factual allegations and construe the complaint in the light most favorable to plaintiff, but may disregard any legal conclusions. Fowler v. UPMC Shadyside, 578 F.3d 203, 210--11 (3d Cir. 2009). Once the well-pleaded facts have been identified, a court must determine whether the "facts are sufficient to show that plaintiff has a 'plausible claim for relief.'" Id. (quoting Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937');">129 S. Ct. 1937, 1949 (2009)). A claim is only plausible if the facts pleaded allow a court reasonably to infer that the "defendant is liable for the misconduct alleged." Id. at 210 (quoting Iqbal, 129 S. Ct. at 1948). Facts suggesting the "mere possibility of misconduct" fail to show that the plaintiff is entitled to relief. Id. at 211 (quoting Iqbal, 129 S. Ct. at 1949).

IV. ANALYSIS

The State Defendants move to dismiss the First, Second, Third, and Seventh Counts for failure to state a claim upon which relief can be granted. The First and Second Counts alleges claims against the State Defendants under 42 U.S.C. § 1983 for violation of Perry's substantive due process rights. The Third Count alleges a claim against the State Defendants under § 1983 for deliberate indifference. And the Seventh Count claims that the State Defendants violated the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1. The State Defendants argue that all four of these claims must be dismissed against Defendants State of New Jersey, DHS-DDD, and Commissioner Velez because these defendants are not persons subject to suit under § 1983 and the NJCRA. (Br. in Supp. of Mot. To Dismiss 4--5) [22-1]. They further argue that Commissioner Velez cannot be held liable in her official or individual capacity because there are insufficient factual allegations of her personal involvement in the alleged wrongs. (Id. at 6.)

A.Claims Against Defendants State of New Jersey and DHS-DDD

The first three counts of the Complaint are brought against the State Defendants under § 1983, which provides a federal cause of action against any person who, acting under color of state law, deprives another individual of a federal right. 42 U.S.C. § 1983. A state is not a "person" subject to suit under § 1983, and this rule also applies to governmental units that are considered "arms of the state." Will v. Mich. Dep't of State Police, 491 U.S. 58, 70--71 (1989). New Jersey is a state, and DHS-DDD is an arm of the state. See N.J.S.A. 30:1-2; 30:6D-24. ...


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