Hector Ferrer v. Renetta Aikens ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-2555
_____________
HECTOR FERRER; DAVID FERRER,
by and through his legal guardian Hector Ferrer,
Appellants
v.
RENETTA AIKENS, in her individual capacity; YESENIA SEDA, "YESSI," in her
individual capacity; HANS AYALA, in his individual capacity; TEANECK BOARD OF
EDUCATION; BARBARA PINSAK, in her individual capacity; VINCENT MCHALE,
in his individual capacity; CATHY TAMBURELLO, in her individual capacity;
DIRECTOR DCP&P/ASSISTANT COMMISSIONER OF THE NEW JERSEY
DEPARTMENT OF CHILDREN AND FAMILIES ("DCF");
COMMISSIONER OF DCF
________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-18-cv-00254)
District Judge: Honorable Esther Salas
________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 24, 2021
________________
Before: CHAGARES, HARDIMAN, and MATEY, Circuit Judges
(Opinion filed: September 29, 2021)
____________
OPINION*
____________
CHAGARES, Circuit Judge.
David Ferrer (“David”) is a student with special needs in the Teaneck School
District (the “District”). The District initially transported David to school by himself but
later began transporting him on a bus with other students with special needs. After two
of the students on his bus acted aggressively, David stopped attending school because the
District would not transport him by himself and his father, Hector Ferrer (“Hector”),
could not transport him to school. The New Jersey Division of Child Protection &
Permanency (“DCPP”) attempted to investigate Hector for educational neglect, which
Hector resisted. Hector, individually and on behalf of David (the “Ferrers”), brought suit
against the DCPP Defendants,1 Cathy Tamburello, and the Teaneck Defendants,2 alleging
violations of their rights under the First, Fourth, and Fourteenth Amendments and the
New Jersey Civil Rights Act. After letting the Ferrers amend their complaint, the District
Court granted the defendants’ motions to dismiss and denied the Ferrers’ motion for
reconsideration. For the reasons that follow, we will affirm.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
1
We refer to Carmen Diaz-Petti, Christine Norbut Beyer, Hans Ayala, Yesenia
Seda, and Renetta Aikens collectively as the “DCPP Defendants.”
2
We refer to the Teaneck Board of Education (the “Board”), Barbara Pinsak, and
Vincent McHale collectively as the “Teaneck Defendants.”
2
I.
We write solely for the parties’ benefit, so our summary of the facts is brief.
Hector is the father and legal guardian of David, who has special needs and reached the
age of majority in New Jersey in 2016. The District transported David to and from
school on a bus where he was the only child present. Beginning in September 2015, the
District transported David on a bus with four other students with special needs. While
David was on board one day, an adult student punched the bus’s window, used profanity,
kicked the door, ran up and down the aisle, and threw himself onto the floor until school
officials restrained him. Another student also “act[ed] up.” Appendix (“App.”) 78.
David did not want to take the bus with the other students anymore and would only go to
school if his father drove him because the District did not provide individual
transportation for him. Because Hector was unable to transport him, David stopped
attending school.
Cathy Tamburello, a supervisor at David’s school, contacted the DCPP and
“assert[ed] that Hector [] was committing educational neglect.” App. 80. Two DCPP
caseworkers — Yesenia Seda and Hans Ayala — visited the Ferrers’ home the following
day to investigate the educational-neglect claim. DCPP caseworkers visited the Ferrers’
home again a few weeks later, after DCPP received another educational-neglect report.
Hector and DCPP subsequently exchanged several letters in which DCPP demanded that
Hector submit to an investigation and Hector demanded that DCPP caseworkers “cease
and desist” their investigation. App. 84. Seda visited the Ferrers’ residence again, and
Hector again told her to leave.
3
DCPP subsequently filed a complaint in New Jersey state court, alleging
educational neglect. The court ordered that Hector allow DCPP to search his home. This
search occurred in December 2015. The court dismissed the case in January 2016. On
David’s eighteenth birthday, DCPP sent a letter to Hector in which it stated that it would
no longer provide services to David.
The Ferrers filed suit in the District Court, alleging that the defendants had
violated their rights under the First, Fourth, and Fourteenth Amendments and the New
Jersey Civil Rights Act. The Ferrers also sought an injunction “requiring that the explicit
instruction and policy be made requiring [DCPP] workers to refrain from abuse of
process.” App. 92. The District Court dismissed the amended complaint under Federal
Rule of Civil Procedure 12(b)(6), reasoning, inter alia, that the defendants were entitled
to qualified immunity and that the court would not exercise supplemental jurisdiction
over the state-law claims. The Ferrers filed a motion for reconsideration, which the
District Court denied. The Ferrers timely appealed.
II.
The District Court had subject matter jurisdiction under 28 U.S.C. §§ 1331, 1343,
and 1367. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the District
Court’s decision to grant a Rule 12(b)(6) motion to dismiss. City of Edinburgh Council
v. Pfizer, Inc., 754 F.3d 159, 166 (3d Cir. 2014). To survive a Rule 12(b)(6) motion, the
complaint must “set forth enough factual allegations to ‘state a claim to relief that is
plausible on its face.’” Klotz v. Celentano Stadtmauer & Walentowicz LLP, 991 F.3d
458, 462 (3d Cir. 2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
4
We accept all factual allegations in the complaint as true and draw all reasonable
inferences in the plaintiffs’ favor. N.J. Carpenters & the Trs. Thereof v. Tishman Constr.
Corp., 760 F.3d 297, 302 (3d Cir. 2014). We review the court’s decision to deny a
motion for reconsideration for abuse of discretion. United States v. Kalb, 891 F.3d 455,
459 (3d Cir. 2018).
A.
As a preliminary matter, the Ferrers seek injunctive relief in the form of an order
requiring Carmen Diaz-Petti and Christine Norbut Beyer, two of the DCPP Defendants,
to create a policy requiring DCPP caseworkers “to refrain from abuse of process.” App.
92. This aspect of the case, however, is now moot.
A case is moot when “the issues presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome.” Cnty. of Los Angeles v. Davis, 440 U.S.
625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). David
Ferrer became an adult in 2016, meaning that the DCPP Defendants no longer have
reason to investigate any alleged abuse or neglect. See N.J. Stat. Ann. § 9:2-13(b) (“The
word ‘child’ means any person under 18 years of age.”); see also id. § 9:6-8.21(c)
(“‘Abused or neglected child’ means a child less than 18 years of age . . . whose
physical, mental, or emotional condition has been impaired or is in imminent danger of
becoming impaired as the result of the failure of his parent or guardian . . . to exercise a
minimum degree of care [] in supplying the child with adequate . . . education . . . .”).
5
Because David is now over the age of eighteen, the Ferrers cannot plausibly allege that
they will encounter DCPP again, so their request for injunctive relief is moot.
III.
The Ferrers contend that the DCPP Defendants3 are not entitled to qualified
immunity because there is a constitutional right under the Fourteenth Amendment to be
free from baseless state investigations for child neglect and a constitutional right under
the Fourth Amendment to be free from unlawful investigations and searches. The DCPP
Defendants argue that they are entitled to qualified immunity because they did not violate
any constitutional rights and, even if they did, these rights were not clearly established.
We agree that the DCPP Defendants are entitled to qualified immunity.
A.
When determining whether qualified immunity is applicable, courts consider: 1)
“whether the facts that a plaintiff has shown make out a violation of a constitutional
right”; and 2) “whether the right at issue was ‘clearly established’ at the time of
defendant’s alleged misconduct.” Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633,
637 (3d Cir. 2015) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)) (alteration
omitted). With respect to the Fourteenth Amendment, although parents have the right to
care for and have custody of their children, this right is not absolute. See Lehr v.
3
To the extent that the amended complaint alleged that the Teaneck Defendants —
more specifically, Pinsak — and Tamburello also violated the Ferrers’ Fourth and
Fourteenth Amendment rights, the Ferrers did not address these defendants in their
opening brief and have thus forfeited this argument. See Barna v. Bd. of Sch. Dirs., 877
F.3d 136, 145 (3d Cir. 2017) (“[W]e have consistently refused to consider ill-developed
arguments or those not properly raised and discussed in the appellate briefing.”).
6
Robertson, 463 U.S. 248, 258 (1983); Croft v. Westmoreland Cnty. Child. & Youth
Servs., 103 F.3d 1123, 1125 (3d Cir. 1997). This “right to familial integrity”
consequently “does not include a right to remain free from child abuse investigations.”
Croft, 103 F.3d at 1125. The state actors must, however, have “some reasonable and
articulable evidence giving rise to a reasonable suspicion that a child has been abused or
is in imminent danger of abuse.” Id. at 1126.
Here, the DCPP Defendants received reports of alleged educational neglect
because David had not been attending school. They consequently had reasonable and
articulable evidence that gave rise to a reasonable suspicion that David’s education was
being neglected, which justified their investigation. The DCPP Defendants’ investigation
thus did not violate the Ferrers’ Fourteenth Amendment rights, especially given that there
is no right to remain free from child abuse investigations, so the DCPP Defendants are
entitled to qualified immunity. We accordingly will affirm.
B.
The DCPP Defendants are likewise entitled to qualified immunity with respect to
the Ferrers’ claim under the Fourth Amendment. The Fourth Amendment protects
against unreasonable searches and seizures. A search is reasonable and thus does not
violate the Fourth Amendment if the state actor “establish[es] probable cause to believe
that evidence will be found on the person to be searched and obtain[s] permission to
conduct the search from a neutral and detached magistrate.” United States v. Ward, 131
F.3d 335, 340 (3d Cir. 1997). Searches are also reasonable if the party to be searched
consents. Fernandez v. California, 571 U.S. 292, 306 (2014).
7
These requirements have been met in this case. The New Jersey state court issued
an order requiring that Hector allow DCPP to inspect his residence and access areas of
the residence that David accessed. The court’s order noted that Hector agreed to meet
with a DCPP caseworker and allow the caseworker to search his residence.4 Hector’s
consent thus renders the search reasonable. Even if Hector had not consented, the DCPP
Defendants did not violate his Fourth Amendment rights because the neutral and
detached state court issued an order that was based on probable cause, given that DCPP
had received reports that Hector was preventing David — who was a minor at the time —
from attending school. Because the DCPP Defendants did not violate the Ferrers’ Fourth
Amendment rights, we will affirm the District Court’s decision.
IV.
The Ferrers also argue that the Teaneck Defendants and Tamburello retaliated
against them after Hector made public complaints about and filed suit against the Board.
A plaintiff asserting a First Amendment retaliation claim must allege: “(1)
constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of
ordinary firmness from exercising his constitutional rights, and (3) a causal link between
the constitutionally protected conduct and the retaliatory action.” Thomas v. Indep.
4
The Ferrers’ amended complaint alleges that “[Hector Ferrer] submitted only
under duress” and that the court issued the order “without legal authority.” App. 86.
Because the Ferrers’ Fourth Amendment claim is based in part on the court order, we
may consider the text of the order. See In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1426 (3d Cir. 1997) (“Plaintiffs cannot prevent a court from looking at the
texts of the documents on which its claim is based by failing to attach or explicitly cite
them.”).
8
Twp., 463 F.3d 285, 296 (3d Cir. 2006). To meet the third element, the plaintiff “usually
must prove either (1) an unusually suggestive temporal proximity between the protected
activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with
timing to establish a causal link.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d
259, 267 (3d Cir. 2007).
Here, the amended complaint alleges 1) that the Board and Pinsak retaliated
against the Ferrers by “instituting a policy that [the Board] would not provide individual
busing to students”; 2) that Pinsak retaliated by “contribut[ing] to the unconstitutional
[DCPP] investigation” against Hector; and 3) that Tamburello retaliated by reporting
Hector to DCPP for educational neglect. App. 90. The amended complaint does not
explain how any of these alleged acts of retaliation are causally linked to the Ferrers’
constitutionally protected conduct, so it has failed to state a claim for relief that is
plausible on its face. See Klotz, 991 F.3d at 462.
V.
District courts may decline to exercise supplemental jurisdiction over claims
where the court has dismissed all of the claims over which it has original jurisdiction. 28
U.S.C. § 1367(c)(3); Elkadrawy v. Vanguard Grp., Inc., 584 F.3d 169, 174 (3d Cir.
2009). Here, the District Court dismissed all of the Ferrers’ federal claims, leaving only
the state-law claim, so the prerequisites for § 1367(c)(3) were met. We will affirm the
District Court’s exercise of its discretion.
We will similarly affirm the District Court’s order denying the Ferrers’ motion for
reconsideration because the Ferrers did not show: “(1) an intervening change in the
9
controlling law; (2) the availability of new evidence that was not available when the court
granted the motion [to dismiss]; or (3) the need to correct a clear error of law or fact or to
prevent manifest injustice.” Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176
F.3d 669, 677 (3d Cir. 1999).5
VI.
For the foregoing reasons, we will affirm the District Court’s Orders.
5
We have considered all other arguments the Ferrers made and conclude that they
are without merit.
10