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Lewis v. Diaz-Petti

United States District Court, D. New Jersey

April 25, 2019

KEVIN LEWIS, Plaintiff,
v.
CARMEN DIAZ-PETTI, in her official capacity as Director of DCP&P/Assistant Commissioner of the New Jersey Department of Children and Families “DCF”, et al., Defendants.

          KENNETH J. ROSELLINI KENNETH ROSELLINI, ATTORNEY AT LAW Attorney for Plaintiff Kevin Lewis.

          BRETT JOSEPH HAROLDSON NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY DIVISION OF LAW Attorney for Defendants Carmen Diaz-Petti and Christine Norbut Beyer.

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This case concerns claims under 42 U.S.C. § 1983, the New Jersey Civil Rights Act, and New Jersey common law relating to a decision by the New Jersey Division of Child Protection and Permanency (“DCP&P”) to take custody of Plaintiff's three children from him and give it to Plaintiff's ex-wife. Currently before the Court is Defendants', Commissioner Christine Norbut Beyer and Assistant Commissioner Carmen Diaz-Petti (collectively, the “Moving Defendants”), Motion to Dismiss and Plaintiff's opposition. For the reasons discussed below, this Court will grant Moving Defendants' Motion to Dismiss, in part, and deny the remaining portions as moot.

         BACKGROUND

         The Court takes this recitation of facts from Plaintiff's Complaint. Plaintiff, Kevin Lewis, alleges he is an African-American and parent of three children, “L.L., ” “KaL., ” and “KeL.” On May 16, 2016, DCP&P caseworker Rosemary Ortiz visited Plaintiff's home, told Plaintiff a complaint had been made about Plaintiff's treatment of his children, and asked to see them. Plaintiff agreed to speak with Ortiz and allow her inside to see his children. Plaintiff refused to allow Ortiz to speak with his children until after he had consulted with an attorney.

         The next day, when Plaintiff went to pick up his children at school, local police officers informed him that his children had been removed from his custody by DCP&P. Plaintiff, at some point, spoke with Ortiz who told him his children were in DCP&P custody, but refused to disclose their location. Plaintiff later learned Defendant Lauralie Lewis, his ex-wife, had made a false allegation of abuse and that the children had been placed with her. Plaintiff also learned that Defendant Lewis had allegedly influenced his children to make false statements to DCP&P, which led to the investigation. Those false allegations included allegations of physical abuse of which Plaintiff claims there was no physical evidence and which a proper investigation would have revealed as false. For ninety days, Plaintiff was unable to have contact with his children.

         DCP&P instituted legal proceedings against Plaintiff, alleging he had abused or neglected his children. A full fact-finding hearing was held. Plaintiff alleges that he proved there was “no basis for the allegations and the abuse and neglect allegations . . . were dismissed by [court order on] June 30, 2017.” (Pl.'s Compl. ¶ 30.) In August 2016, Plaintiff was allowed ninety minutes of supervised visitation with his children every week. Besides this visitation, the children were not returned to Plaintiff's custody.

         Plaintiff alleges his children were mistreated while in DCP&P's or his ex-wife's custody. The mistreatment resulted in mental health issues with one child, the development of diabetes in another, and expulsion from school for the third, among other things. Plaintiff complained to DCP&P about the mistreatment, specifically to a DCP&P supervisor, Defendant Jennifer Malloy, but Plaintiff alleges DCP&P did not investigate his claims.

         Plaintiff also makes allegations beyond DCP&P's failure to investigate. Plaintiff claims DCP&P caseworker, Defendant Shelia Walderama, [1] falsely testified in the underlying matter concerning Plaintiff's ability to administer diabetic treatment to his child. Plaintiff claims a DCP&P caseworker, Defendant Chinuso Akunne, delayed medical attention for one of Plaintiff's children, belittled him in front of the child, and “intentionally and maliciously interfered with Plaintiff's reunification therapy with his children.” (Pl.'s Compl. ¶¶ 47-51.) Plaintiff additionally alleges that Defendants Jasmine Peters, a DCP&P caseworker, and Lewis threatened his children on multiple occasions that “they will soon be questioned by court personnel and if they say they want to live with their father they all will be thrown in foster care.”[2] (Pl.'s Compl. ¶ 37.)

         Additionally, Plaintiff alleges improper conduct by DCP&P contractors. Plaintiff claims Defendants Dr. Brian Eig or Dr. Lee and Associates “fabricated a false psychological evaluation of Plaintiff with an improper diagnosis” and recommended placement of his children with Defendant Lewis. Plaintiff alleges this same individual or entity has done the same in other cases. Plaintiff claims that Defendant Dr. Stephanie Lanase “fabricated a false psychological evaluation of Plaintiff's children, including a false diagnosis of post traumatic stress disorder” and the underlying judge found these findings “were, unexplainably, extremely biased against Plaintiff.” (Pl.'s Compl. ¶¶ 55-56.) Finally, and similarly, Plaintiff claims Defendant Dr. Melissa McCausland fabricated a false diagnosis of Plaintiff's children, stating they suffered from post-traumatic stress disorder. Defendant Dr. McCausland did not respond to witness subpoenas in the underlying matter.

         Plaintiff's complaint in this Court alleges six counts against multiple defendants. Plaintiff alleges claims under 42 U.S.C. § 1983, NJCRA, and New Jersey common law. In the first count, Plaintiff alleges a violation of the Fourteenth Amendment by Defendants Malloy, Ortiz, Peters, Walderama, and Akunne. In the second count, Plaintiff alleges unlawful retaliation against his exercise of First Amendment rights by the same Defendants. In the third count, Plaintiff alleges violations of the Fourth, Fifth, and Fourteenth Amendments by Moving Defendants for an allegedly unconstitutional policy. In the fourth count, Plaintiff also alleges violations of Due Process and Equal Protection rights, here by all Defendants except Moving Defendants. In the fifth count, Plaintiff alleges violations of the NJCRA by all Defendants except Moving Defendants. Finally, in the sixth count, Plaintiff claims Defendant Lewis has committed malicious abuse of process.

         On September 18, 2018, Moving Defendants filed the pending Motion to Dismiss. Attached to the Motion to Dismiss is the Certification of Elizabeth Wallace, Deputy Attorney General for New Jersey who is responsible for handling the underlying child custody matter. (Defs.' Mot. to Dismiss, Ex. A.) Ms. Wallace states that the custody matter is still ongoing in the New Jersey Superior Court, Chancery Division, Family Part, Burlington ...


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