Hector Ferrer v. Renetta Aikens

• Court: Court of Appeals for the Third Circuit
• Decided: September 29, 2021
• Docket: 20-2555
• Status: Unpublished

Opinion

NOT PRECEDENTIAL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.

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.

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.