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Y.W. v. Roberts

United States District Court, D. New Jersey

November 5, 2018

Y.W., Plaintiff,
v.
KIMBERLY ROBERTS, VERONICA ZERON, PATRICIA AUFIERO, UNKNOWN TEACHER, and NEW MILFORD BOARD OF EDUCATION, Defendant.

          OPINION

          WILLIAM J. MARTINI, U.S.D.J.

         Plaintiff 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. [108] and [111]. The Court denied Plaintiff's motions and denied in part and granted in part Defendants' motion. ECF No. [120]. 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. [123]. 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 motion.

         I. BACKGROUND

         The underlying facts relevant to Plaintiff's Motion for Reconsideration are set forth in the Court's September 5, 2018 Opinion, ECF No. [119] (“Opinion”), and the Court assumes the parties' familiarity with the facts and procedural history of this case and writes solely for their benefit.

         In the 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. [120]. 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 judgment.

         Plaintiff 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.

         As to 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.

         Finally, 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?

         Opposition 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. [122].

         On October 23, 2018, the Court held a previously scheduled settlement conference. Counsel for Defendants failed to appear. ECF No. [128]. On the record, the Court expressed grave concerns regarding Defendants' lapses in attention to the Court ordered deadlines in this matter. ECF No. [129]. 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. [125]. Defendants opposed the requested extension, ECF No. [126]. On October 24, 2018, the Court granted a one-week extension of time on October 24, 2018, ECF No. [127], and ordered Plaintiff need not file a reply brief.

         Defendants filed their opposition on October 31, 2018. ECF No. [130]. 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.

         Despite 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. [131]. The reply brief repeats Plaintiff's challenges as articulated in its opening brief, namely that the Court misapplied certain cases, and ...


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