United States District Court, D. New Jersey
DENNIS MAZZETTI, individually and on behalf of D.M. as the "next friend" of D.M. a minor, Plaintiff,
THE NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY (“DCP&P”) (formerly Division of Youth and Family Services), et al., Defendants.
plaintiff, Dennis Mazzetti, brings this action alleging a
bevy of constitutional violations committed during the
process of terminating his parental rights over his child,
D.M., and later, when the child was in the custody of
Mazzetti's mother. Defendants have moved to dismiss the
complaint. (ECF No. 15) For the reasons set forth below, the
motion will be for the most part GRANTED, but in part DENIED.
action involves 11 named defendants:
â¢ DCP&P (formerly Division of Youth 8b Family Services
("DYFS"), a New Jersey child protection and welfare
agency within the Department of Children and Families;
• Governor Christopher J. Christie in his individual and
• Lisa Von Pier in her official capacity as Director of
• Allison Blake, the Commissioner of the Department of
Children and Families, in her individual and official
• Judge Bonnie J. Mizdol, the presiding judge of the
family division for the Bergen County Vicinage of the New
Jersey Superior Court, in her individual and official
• Judge Margaret Foti, a judge of the family division
for the Bergen County Vicinage of the New Jersey Superior
Court, in her individual and official capacities;
• The Honorable Virginia Long, former Associate Justice
of the New Jersey Supreme Court, in her individual and
• Deputy Attorney General Ellen Buckwalter in her
• Bergen County Prosecutor John Molinelli in his
individual and official capacity;
• Kimberly Roberts, a caseworker at DCP&P, in her
individual capacity; and
• Erica Zapata, a caseworker at DC&P, in her
(Compl. ¶¶ 5-21)
Relevant Facts & Procedural History
Jersey courts terminated Mazzetti's parental rights over
his son, D.M., and that decision was affirmed on appeal. The
complaint alleges a narrative that diverges from the factual
findings of the state court as recited by the appellate
opinion affirming the termination decision. Compare
Compl. with N.J. Div. of Youth & Family Servs. v.
D.M. (In re DM.), Dkt. No. A-2509-09T3, 2012 N.J.Super.
Unpub. LEXIS 120 (App. Div. Jan. 18, 2012). Mazzetti, for
example, alleges a vast conspiracy to deprive him of his
parental rights, while the appellate opinion portrays a man
with "a distorted reality" who was "unable or
unwilling to secure adequate housing for the child" and
lacked the ability to "provide even a minimal degree of
parental care." In re D.M., at *6, 11-12
(quoting the trial court's findings). For purposes of
this motion to dismiss only, I consider the facts as set
forth in Mazzetti's complaint.
was born on March 11, 2007, to Mazzetti, the father, and CM.,
the mother. The child was born with cocaine in his system.
Following his release from the hospital, D.M. was placed in a
foster home. "Several months after" his birth, D.M.
was placed in the care of Mazzetti's mother, Linda
Mazzetti. She eventually adopted D.M. (SeeCompl. ¶ 25,
27, 40, 55, 95)
point, DCP&P sought to terminate Mazzetti's parental
rights based on the best interests of the child. Around the
time of the termination proceedings, Mazzetti was suffering
from an infected hernia, which "may" have rendered
him permanently disabled. He could not financially provide
for D.M. without assistance from Linda Mazzetti, and
DCP&P refused or failed to provide Mazzetti or his family
employment or housing services. Mazzetti alleges that he
never abused or neglected D.M. He completed every parenting
course and passed every drug test but one, the results of
which he says were falsified.During the termination
proceedings, however, DCP&P testified that Mazzetti
"failed ... to plan for the future [of D.M.] although
physically and financially able to do so" and
"abandoned his minor child to the care of others."
(Id. ¶¶ 64-68, 73, 76, 79-84)
rights over D.M. were terminated. He appealed. Someone at
DCP&P told Linda Mazzetti that her son could have
unfettered visitation rights if he dropped his appeals.
(Id. ¶ 83) The Appellate Division affirmed the
lower court's denial of Mazzetti's parental rights on
January 18, 2012. Mazzetti sought review from the New Jersey
Supreme Court and then the United States Supreme Court. Those
petitions were denied in May and October, 2012. See N.J.
Dep't of Children and Families, Div. of Youth and Family
Servs. v. D.M., 210 N.J. 218 (2012); D.M. v. N.J.
Dep't of Youth & Family Servs., 133
S.Ct. 571 (2012). In the interim, on August 23, 2012,
Mazzetti filed a federal court complaint that substantially
overlaps the subject matter of this action.
January 2014, DCP&P opened a case for D.M, which
allegedly remains open. Around the same time, D.M. was
improperly prescribed Ritalin while under DCP&P's
supervision. (Comp. ¶¶ 108, 109)
about June 27, 2014, Linda Mazzetti was hospitalized.
Mazzetti assumed caregiving responsibilities for D.M. On July
1, 2014, DCP&P removed D.M. from the care of Linda
Mazzetti with the assistance of DCP&P caseworker Kimberly
Roberts. The removal was based on information provided by
Deputy Attorney General Ellen Buckwalter who, in a Verified
Complaint, stated that Linda Mazzetti "was 'no
longer able to care for [D.M.] due to her
hospitalization." (Id. ¶¶ 125-129,
process of seizing D.M., Roberts told Mazzetti that
"DYFS could do whatever it wants to do without
repercussion, that [Mazzetti] will never see his son again,
and that there is nothing [Mazzetti] could do about it."
Prosecutor Molinelli failed to prosecute Roberts for her
involvement in the seizure, even though a municipal court
judge found probable cause to issue a criminal complaint.
(Id. ¶¶ 123, 174-75)
subject matter or personal" jurisdiction, Superior Court
Judge Mizdol terminated Mazzetti's visitation rights on
July 3, 2014. On July 17, 2014, Mazzetti petitioned Governor
Chris Christie to investigate DCP&P, and to investigate
and impeach Judge Mizdol. Governor Christie did neither.
(Id. ¶¶ 138-142, 152-54)
August 2014, DCP&P misrepresented Mazzetti's
relationship to D.M. to the Child Placement Review Board
("CPRB"). Mazzetti was not given notice of the
meeting, and only Erica Zapata, a DCP&P caseworker,
"appears to have attended." (Id.
about September 7, 2014, Mazzetti filed a complaint to the
Supreme Court of New Jersey Advisory Committee on Judicial
Conduct ("ACJC"), seeking an investigation of Judge
Mizdol's conduct. A month later, ACJC, of which defendant
the Honorable Virginia Long is Chairperson, found that there
was "no basis to charge Judge Mizdol with judicial
misconduct." (Compl. ¶¶ 155-56)
September 11, 2014, Linda Mazzetti executed a codicil to her
will in which she appointed her son, Mazzetti, as D.M.'s
guardian. Two days later, Linda Mazzetti died. DCP&P
allowed D.M. to be present for only one hour of the wake and
funeral. He was not permitted to spend any additional time
with Mazzetti or his family. Mazzetti applied for an emergent
order. The Appellate Division ruled sometime later that
Mazzetti had standing to move to vacate the termination of
his parental rights based on changed circumstances.
(Id. ¶¶ 163-64, 167, 191)
Margaret Foti, who inherited Mazzetti's case from Judge
Mizdol, denied the motion to vacate on October 31, 2014. She
allegedly also refused to allow Mazzetti access to
psychological evaluations, denied him counsel, and refused to
allow him to introduce evidence or participate in a
"Best Interests of the Child Hearing." Judge Foti
also failed to decide Mazzetti's motion for dismissal for
lack of jurisdiction and the right to intervene.
(Id. ¶¶ 121, 163, 170)
Linda Mazzetti's death, D.M. has been in foster care.
(Id. ¶¶ 164, 240, 289)
filed this federal complaint on December 31, 2014. The gist
of it is that defendants have denied him his parental rights
and retaliated against him for persisting in his appeals and
federal civil rights law suits. Mazzetti avers that his case
is but one facet of a DC P&P- spearheaded scheme "to
place children in foster homes to obtain more funding from
the State and the United States Department of Health and
Human Services" and "to increase DYFS instigated
adoptions." (Id. ¶¶ 210, 230-92)
complaint contains eight counts:
1. Section 1983 claim of violations of the Fourth and
Fourteenth Amendments by DCP&P, Von Pier, Blake, Judge
Mizdol, Judge Foti, and Governor Christie, for failure to
properly promulgate rules and to supervise, train, and
discipline those who committed abuses of process during their
investigation of allegations of child abuse. Count 1 seeks an
injunction requiring defendants to formulate explicit
instructions and policies against abuse of process.
2. Section 1983 and 1986 claims of violations of the Sixth
and Fourteenth Amendments by the defendants named in Count 1
for a policy or custom of improper hiring and inadequate
training that led to abuses of process and deliberate
indifference to the rights of persons including Mazzetti.
Count 2 requests the same injunctive relief as Count 1.
3. Section 1985 claim of conspiracy by DCP&P, Governor
Christie, Judges Mizdol and Foti, Deputy Attorney General
Buckwalter, Roberts, Zapata, Justice Long, and Prosecutor
Molinelli to commit abuses of process. Count 3 requests $10
million in damages, $50 million in punitive damages, fees and
costs, interest, and any other appropriate relief.
4. Section 1983 claim by the defendants named in Count 3 for
violations of Mazzetti and D.M.'s rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments for policies,
practices, acts, and omissions that excessively interfered
with Mazzetti's fundamental rights to privacy and freedom
to raise a family. Count 4 requests the same relief as Count
5. Section 1983 claim by the same defendants named in Count 3
for violations of Mazzetti and D.M.'s rights under the
First, Fourth, Sixth, Eighth, and Fourteenth Amendments for
depriving Mazzetti of his due process rights, his rights to
be free from excessive interference with family
relationships, and his rights to speak freely about the
defendants' conduct. Mazzetti requests the same relief as
6. Section 1983 claim by the defendants named in Count 3 for
violations of Mazzetti and D.M.'s rights under the First
and Fourteenth Amendments for retaliating against
Mazzetti's opposition to defendants' unlawful conduct
and depriving him of equal protection of the law. Count 6
requests the same relief as Count 3.
7. Claim of violations of Mazzetti's rights under Title
II of the American with Disabilities Act, 42 U.S.C.
§§ 12131-12165, by the defendants named in Count 3
for failing to provide Mazzetti with services to protect his
rights and using his disability as a means to deprive him of
those rights. Count 7 requests the same relief as Count 3.
8. A habeas corpus petition under 28 U.S.C.§ 2254.
Mazzetti demands that defendants either demonstrate lawful
jurisdiction and custody over D.M or return D.M. to his
This Motion to Dismiss
April 1, 2015, defendants moved to dismiss the complaint
under Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P. They argue
that the complaint as a whole should be dismissed on
jurisdictional grounds. Failing that, they assert immunity
grounds specific to individual defendants. Failing that, they
suggest that various counts of the complaint fail to state a
claim. I have analyzed the claims in that order.
II and III of this Opinion discuss jurisdiction and the
merits in relation to Counts 1-7. Count 8, a habeas petition,
is discussed separately in Section IV. The net result is
that, except for the First Amendment retaliation claim (Count
6) as against defendants Zapata and Roberts, the complaint
will be dismissed.
SUBJECT MATTER JURISDICTION
motion to dismiss for lack of subject matter jurisdiction
under Fed.R.Civ.P. 12(b)(1) may be raised at any time.
Iowana v. Ford Motor Co., 67 F.Supp.2d 424, 437-38
(D.N.J. 1999). Rule 12(b)(1) challenges may be either facial
or factual attacks. See 2 Moore's Federal
Practice § 12.30 (3d ed. 2007); Mortensen v.
First Fed. Sav. & LoanAss'n, 549 F.2d
884, 891 (3d Cir. 1977). A facial challenge asserts that the
complaint does not allege sufficient grounds to establish
subject matter jurisdiction. Iwanowa, 67 F.Supp.2d
at 438. A court considering such a facial challenge assumes
that the allegations in the complaint are true, and may
dismiss the complaint only if it nevertheless appears that
the plaintiff will not be able to assert a colorable claim of
subject matter jurisdiction. Cardio-Med. Assoc, Ltd. v.
Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir.
1983); Iwanowa, 67 F.Supp.2d at 438. "With
respect to 12(b)(1) motions in particular, '[t]he
plaintiff must assert facts that affirmatively and plausibly
suggest that the pleader has the right he claims (here, the
right to jurisdiction), rather than facts that are merely
consistent with such a right.mIn re Schering
Plough Corp. Intron/Temodar Consumer Class Action, 678
F.3d 235, 244 (3d Cir. 2012) (quoting Stalley v. Catholic
Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007)).
See generally Lincoln Ben. Life Co. v. AEILife, LLC,
800 F.3d 99, 105 (3d Cir. 2015) (discussing distinctions
between facial and factual attack).
argue that Mazzetti lacks standing to pursue the injunctive
relief he seeks. Mazzetti, recall, requests "an order
requiring [an] explicit instruction and policy be made
requiring DYFS workers to refrain from abuse of
process." (Compl. ¶¶ 240, 247) But
Mazzetti's parental rights have already been terminated,
and he does not identify any likelihood that he would be
subject to further abuses of process by DCP&P. He
therefore lacks standing.
constitutional standing, a plaintiff must plausibly allege
that (1) that he has "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'"; (2) "a causal connection
between the injury and the conduct complained or; and (3) a
likelihood "that the injury will be redressed by a
favorable decision." In re Schering-Plough, 678
F.3d at 244 (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992). A plaintiff seeking relief must
plausibly allege that he is at risk of future harm
that an injunction would address. See Los Angeles v.
Lyons, 461 U.S. 95, 111 (1983) (holding that citizen
seeking to enjoin police chokeholds lacked standing absent
evidence of a "real" and "immediate"
threat that he would be subjected to the practice again).
parental rights as to D.M. were terminated years ago-
unconstitutionally, he says. But that alone does not give him
standing to seek an injunction to prevent DCP&P from
continuing to engage in similar allegedly unconstitutional
procedures in the future. See Lyons, 461 U.S. at 102
("[P]ast exposure to illegal conduct does not in itself
show a present case or controversy regarding injunctive
relief ... if unaccompanied by any continuing, present
adverse effects.") (quoting O'Shea v.
Littleton, 414 U.S. 448, 495-96 (1974); see also
Davis v. Thornburgh, 903 F.2d 212, 221 (3d Cir.),
cert denied, 498 U.S. 970 (1990) (holding that a
parent lacked standing to pursue declaratory and injunctive
relief to challenge the procedures that deprived her of her
parental rights after those rights had been terminated). And
looking forward, Mazzetti does not allege that
DCP&P's policies and practices will be marshaled
against him in the future to deprive him of his parental
rights. Mazzetti's claimed injury, then, is not
"real and immediate" but remote and abstract.
his grievance likely to be redressed by the injunctive relief
he seeks. "Once the termination order was entered,
" he "could longer demonstrate that he had
suffered an injury likely to be redressed by a favorable
decision.mDavis, 903 F.2d at 220 (quoting
Simon v. Eastern Kentucky Welfare Rights
Organization, 426 U.S. 26, 38 (1976)). There may be
individuals who would benefit from the reform of DCP&P
policies and practices that Mazzetti seeks. Mazzetti,
however, is not one of them, and he cannot seek relief on
their behalf. Because Mazzetti alleges no threatened future
injury to himself, his complaint fails to set forth standing
to sue for injunctive relief.
1 and 2 of the Mazzetti's complaint are therefore
DISMISSED for lack of subject matter
Third party standing on behalf of D.M.
also alleges that D.M.'s rights under the First, Fourth,
Fifth, Sixth, Eighth, and Fourteenth Amendments were
violated, and requests an injunction (Counts 1-2) and damages
(Counts 3-6) on D.M.'s behalf. As a matter of
constitutional or prudential standing, Mazzetti cannot bring
section 1983 claims on behalf of D.M.
relationship to D.M. has been severed, and his parental
rights over D.M. extinguished, as a matter of law. Such a
drastic order must be distinguished from, e.g., a
mere award of custody to one or both parents. See In re
Adoption of Children by L. A. S.,134 N.J. 127, 132
(1993) ("Termination of parental rights-in contrast to
the loss of custody of one's children- permanently severs
the relationship between children and their biological
parents."). When a court finds that termination of
parental rights is in the best interests of the child,
DCP&P becomes "the legal guardian of the child for
all purposes." N.J. Stat. Ann. § 30:4C-20. The
state court order terminating Mazzetti's parental
rights-having survived the scrutiny of two New Jersey
appellate courts and the United States Supreme Court-is valid
and final. The Full Faith and Credit statute, 28 U.S.C.
§ 1738, therefore obligates me to give it "the same
effect as would the adjudicating state, " even in a
Section 1983 suit for damages brought in this federal court.