United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
Y.W. brought this Section 1983 action against two employees
of the New Jersey Division of Child Protection and
Permanency, Kimberly Roberts and Veronica Zeron
(collectively, “Defendants”), alleging violations
of his substantive and procedural due process rights under
the Fourteenth Amendment in connection with an investigation
of him for child abuse. In June 2018, the parties cross-moved
for summary judgment, and Plaintiff moved for an adverse
inference based on spoliation of evidence. ECF Nos.  and
. The Court denied Plaintiff's motions and denied in
part and granted in part Defendants' motion. ECF No.
. Plaintiff now moves for reconsideration of the
Court's rulings on summary judgment and for certification
of an interlocutory appeal pursuant to 28 U.S.C. §
1292(b). ECF No. . Because Plaintiff has failed to meet
the high standard required on a motion for reconsideration
and has failed to meet the requirements for discretionary
interlocutory appeal, the Court DENIES the
underlying facts relevant to Plaintiff's Motion for
Reconsideration are set forth in the Court's September 5,
2018 Opinion, ECF No.  (“Opinion”), and the
Court assumes the parties' familiarity with the facts and
procedural history of this case and writes solely for their
Opinion, the Court denied Plaintiff's motion seeking an
adverse interference against Defendants based on spoliation
of evidence, denied Plaintiff's motion for summary
judgment on Plaintiff's substantive and procedural due
process claims, and denied Defendants' motion for summary
judgment on Plaintiff's procedural due process claim. ECF
No. . The Court granted Defendants' motion for
summary judgment on Plaintiff's substantive due process
claim. Id. Based on these rulings, only
Plaintiff's procedural due process claim survived summary
now moves for reconsideration of these rulings, and, in the
alternative, for certification of two questions for
interlocutory appeal under 28 U.S.C. § 1292(b). In
support of his motion for reconsideration of the substantive
due process claims, Plaintiff moves for reconsideration on
three grounds. First, he argues that the Court incorrectly
applied three Third Circuit cases: Mammaro v. N.J. Div.
of Child Prot. & Permanency, 814 F.3d 164 (3d Cir.),
as amended (Mar. 21, 2016); Miller v. City of
Phila., 174 F.3d 368 (3d Cir. 1999); and Croft v.
Westmoreland Cty. Children & Youth Servs., 103 F.3d
1123 (3d Cir. 1997). Second, Plaintiff argues that the Court
failed to identify “any element that would [show] Y.Y.
was abused or was in any risk of danger of abuse or neglect,
” requiring summary judgment in Plaintiff's favor
on the substantive due process claim. Id. at 4;
see also Id. at 1, 3 (“[T]here was no evidence
whatsoever corroborating that the Child is likely in danger
of abuse or neglect.”). And, third, Plaintiff argues
that the Court's finding that “Plaintiff did not
have a clearly established right to be free from the
imposition of supervised contact based on the facts presented
here” was in error because the Court misapplied the
requirement that, in order to survive summary judgment on the
basis of qualified immunity, the right in question must be
“clearly established at the time of the challenged
conduct.” See ECF No. [123-1] at 6-13.
the procedural due process claims, Plaintiff reargues the
legal merits of its substantive due process claims, citing to
B.S. v. Somerset Cnty., 704 F.3d 250, 271 (3d Cir.
2013); Isbell v. Bellino, 962 F.Supp.2d 738 (M.D.
Pa. 2013); and Doe v. Fayette Cty. Children & Youth
Servs., No. CIV.A. 8-823, 2010 WL 4854070 (W.D. Pa. Nov.
22, 2010), and argues that the Court should have granted
summary judgment in Plaintiff's favor.
Plaintiff requests certification of two questions for
interlocutory appeal as follows:
Question 1: The controlling question for a substantive due
process claim is: whether a safety protection plan of
supervised contact is a clearly established usurpation of the
familial rights of substantive due process after the official
has completed interviewing all the child's collaterals
and did not discover any reasonable evidence that the child
was abused or in danger of abuse?
Question 2: The controlling question for a procedural due
process claim is: when the official fails to disclose the
right to oppose the safety protection plan and fails to
disclose the right to a post deprivation hearing, whether the
parent's signature to that safety protection plan
constitutes a valid waiver to any procedural due process
otherwise owed to the parent?
to the motion was due on October 18, 2018, and Defendants,
who are represented by the Office of the Attorney General for
the State of New Jersey, failed to timely file any response
or request an extension of time by which to do so. ECF No.
October 23, 2018, the Court held a previously scheduled
settlement conference. Counsel for Defendants failed to
appear. ECF No. . On the record, the Court expressed
grave concerns regarding Defendants' lapses in attention
to the Court ordered deadlines in this matter. ECF No. .
By way of letter filed by Deputy Attorney General Randall B.
Weaver later that day, counsel for Defendants filed new
notices of appearance and requested an extension of time to
respond to the instant motion. ECF No. . Defendants
opposed the requested extension, ECF No. . On October
24, 2018, the Court granted a one-week extension of time on
October 24, 2018, ECF No. , and ordered Plaintiff need
not file a reply brief.
filed their opposition on October 31, 2018. ECF No. . In
the opposition, Defendants argue that Plaintiff has failed to
“meet the threshold for reconsideration” because
Plaintiff has not identified a clear error of law or fact, an
intervening change in the controlling law, or new evidence
that was previously unavailable. Id. at 3. Rather,
Plaintiff “expresses disagreement” with this
Court's decision. Id. Defendants take no
position on Plaintiff's motion for certification of
interlocutory appeal, but argue that, should the Court grant
such certification, the Court should not certify
Plaintiff's questions as posed but should instead approve
Defendants' modified questions. Id. at 4-6.
the Court's order that no reply was necessary, on
November 5, 2018, Plaintiff filed a letter brief, docked as a
“Reply Brief, ” that simultaneously requests
leave to file a reply brief and submits Plaintiff's
arguments on reply. ECF No. . The reply brief repeats
Plaintiff's challenges as articulated in its opening
brief, namely that the Court misapplied certain cases, and