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Mazzetti v. New Jersey Division of Child Protection And Permanency

United States District Court, D. New Jersey

March 27, 2017

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.


          KEVIN MCNULTY. U.S.D.J.

         The 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.

         I. BACKGROUND

         A. Parties

         This action involves 11 named defendants:

• 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 official capacities;
• Lisa Von Pier in her official capacity as Director of DCP&P,
• Allison Blake, the Commissioner of the Department of Children and Families, in her individual and official capacities;
• 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 capacities;
• 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 official capacities;
• Deputy Attorney General Ellen Buckwalter in her individual capacity;
• 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 individual capacity.

(Compl. ¶¶ 5-21)

         B. Relevant Facts & Procedural History

         The New 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.

         D.M. 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)[1]

         At some 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.[2]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)

         Mazzetti's 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.[3]

         In 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)

         On or 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, 134, 143)

         In the 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)

         "Without 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)

         In 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. ¶¶ 157-59)

         On or 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)

         On 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)

         Judge 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)

         Since Linda Mazzetti's death, D.M. has been in foster care.

(Id. ¶¶ 164, 240, 289)

         C. Claims

         Mazzetti 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)

         The 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 3.
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 Count 3.
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 custody.

         D. This Motion to Dismiss

         On 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.

         Sections 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.


         A 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[4] (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).

         A. Standing

         1. Injunctive relief

         Defendants 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.

         To have 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).

         Mazzetti's 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.

         Nor is 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.

         Counts 1 and 2 of the Mazzetti's complaint are therefore DISMISSED for lack of subject matter jurisdiction.[4]

         2. Third party standing on behalf of D.M.

         Mazzetti 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.[5]

         Mazzetti's 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. Davis, ...

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