2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-28-2010

Harvey Howard v. New Jersey Division of Youth

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1613

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Recommended Citation

"Harvey Howard v. New Jersey Division of Youth" (2010). 2010 Decisions. Paper 363.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 10-1613

HARVEY HOWARD; GERALD PETROVEY,

 Appellants

 v.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES;

CLARENCE E. WHITTAKER, JR., ESQ., individually and in his former

capacity as Dispositional Review Officer for the Division of Youth and

Family Services; ROBERT LEASE, individually and in his capacity as 

Dispositional Review Officer for the Division of Youth and Family Services;

and JOHN AND/OR JANE DOES 1-10

 

On Appeal from the United States District Court 

for the District of New Jersey

(D.C. No. 08-cv-4934)

District Judge: Honorable Joel A. Pisano

Submitted Under Third Circuit L.A.R. 34.1(a),

October 7, 2010

Before: FUENTES, JORDAN, and ALDISERT, Circuit Judges.

(Opinion Filed: October 28, 2010)

OPINION OF THE COURT
 The District Court did exercise jurisdiction to the limited extent that it ruled on the 1

merits of a Motion for a Preliminary Injunction filed by the plaintiffs, as more fully

described therein. See infra at 5. 

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FUENTES, Circuit Judge.

Appellants, Harvey Howard and Gerald Petrovey, were both employed in the New

Jersey public schools. Based on incidents that occurred during the course of their

employment, pursuant to N.J. Stat. Ann. § 9:6-8.11, they were investigated by the New

Jersey Division of Youth and Family Services (“DYFS”) and found to have neglected or

abused students. For both Howard and Petrovey, the initial investigation by DYFS and

the first level of appeal did not include a hearing or a plenary proceeding in which they

could participate. The next level of review, however, entails a full administrative hearing

before the Office of Administrative Law (“OAL”); both Howard and Petrovey have

requested such hearings, which currently remain pending.

Section 9:6-8.11 also provides for the entry of the names of individuals found to

have abused or neglected a child into the New Jersey Child Abuse Central Registry. 

Plaintiffs claim that the statute violates their due process rights under the United States

and New Jersey Constitutions as it permits the entry of their names into the registry

without a prior opportunity to be heard. They seek declaratory and injunctive relief,

attorney fees, and damages pursuant to 42 U.S.C. § 1983.

The District Court abstained from exercising jurisdiction over the instant suit in

light of the ongoing state proceedings. Such abstention was proper with respect to 1

Plaintiffs’ claims for declaratory and injunctive relief. Plaintiffs’ claims for damages and
 The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1331. This Court has 2

jurisdiction under 28 U.S.C. § 1291. Except with respect to the plaintiffs’ Motion for A

Preliminary Injunction, the District Court abstained from exercising jurisdiction under

Younger v. Harris, 401 U.S. 37 (1971). “We exercise plenary review over the legal

determination of whether the requirements for abstention have been met. Once we

determine that the requirements have been met, we review a district court’s decision to

abstain under Younger abstention principles for abuse of discretion.” Addiction

Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 408 (3d Cir. 2005) (internal quotation

marks & citation omitted).

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attorney fees against Defendants in their individual capacities, however, should have been

stayed rather than dismissed. For the reasons that follow, we will affirm in part and

vacate in part and remand to the District Court for further proceedings consistent with this

opinion. 2

I.

Because we write primarily for the parties, we only discuss the facts and

proceedings to the extent necessary for the resolution of the case.

This case involves a challenge to the constitutionality of N.J. Stat. Ann. § 9:6-

8.11, which provides for the entry of the name of an individual accused of abusing and/or

neglecting a child into the New Jersey Child Abuse Central Registry. Specifically, upon

receiving a report of child abuse, DYFS “shall initiate an investigation within 24 hours of

receipt of the report . . . . [DYFS] shall also, within 72 hours, forward a report of such

matter to the child abuse registry operated by the division in Trenton.” N.J. Stat. Ann.

§ 9:6-8.11. Authorized entities, such as DYFS, family day care providers, and child care

centers, may request information from the registry in limited circumstances such as

employment background checks and screening for foster or adoptive parents. Id. § 9:6-

8.10a.
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During the 2005–2006 school year, Howard was a special education teacher at

Joyce Kilmer Elementary School. In May 2006, there was an altercation between two

students in Howard’s classroom. Shortly thereafter, Howard resigned as an alternative to

being terminated. DYFS began an investigation into the altercation; this investigation did

not involve a hearing or plenary proceeding in which Howard could participate. In

August 2006, DYFS issued an investigative report finding that Howard had put two of his

students at substantial risk, which met the statutory requirement for child neglect, and

informed Howard that he could appeal. Howard filed an appeal, requesting a

dispositional review with Defendant-Appellee Clarence E. Whittaker.

Approximately two years later, having heard nothing, Howard’s attorney contacted

DYFS. In a letter dated August 14, 2008, DYFS informed Howard that its policy had

changed and that dispositional reviews no longer involved in-person or telephonic

hearings. Rather, DYFS reviewed the investigative report and other case information “to

determine if they provide sufficient support for the substantiation.” (Supplemental App.

(“S.A.”) at 20.) Howard’s Dispositional Review had been completed and the finding of

substantial neglect affirmed. Howard was given the opportunity for a full administrative

hearing before the OAL. Howard requested an OAL hearing, which is currently pending. 

If the results of the OAL hearing are unfavorable, he may appeal to the Appellate

Division of the New Jersey Superior Court.

Petrovey was a custodian at Woodbridge High School during the 2000–2001

school year. In June 2000, a student at the school tripped Petrovey, causing him to fall

down some stairs and be seriously injured. The student then kicked Petrovey, and
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Petrovey struck the student. In March 2001, Petrovey reached a settlement with the

Woodbridge Township Board of Education and resigned. DYFS investigated the incident

and found, without a hearing or plenary proceeding, that physical abuse was

substantiated. Petrovey requested a dispositional review of the finding with DefendantAppellee Robert Lease. More than six years later, by letter dated May 2, 2007, DYFS

informed Petrovey that his dispositional review had been completed without a hearing

and that the finding of substantiated abuse had been affirmed. Petrovey requested an

OAL hearing, which remains pending. After the OAL hearing, Petrovey may appeal to

the Appellate Division of the New Jersey Superior Court.

Plaintiffs brought an action in federal court against DYFS and against Whittaker

and Lease, individually and in their capacities as Dispositional Review Officers for

DYFS. Plaintiffs allege that N.J. Stat. Ann. § 9:6-8.11 violates their due process rights

under the United States and New Jersey Constitutions. As previously noted, Plaintiffs

filed a Motion for a Preliminary Injunction to enjoin the ongoing state administrative

proceedings. Defendants opposed Plaintiffs’ request for a preliminary injunction and

filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The

District Court denied Plaintiffs’ motion, holding that they had failed to show any

likelihood of success on the merits or irreparable injury caused by a denial of injunctive

relief. Concluding that DYFS was immune from suit under the Eleventh Amendment and

that abstention was warranted in light of the ongoing state administrative proceedings, the

District Court granted Defendants’ motion to dismiss and closed the case. Plaintiffs

challenge both of these rulings.
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II.

The District Court abstained from exercising jurisdiction under Younger v. Harris,

401 U.S. 37 (1971). Younger abstention is appropriate where “(1) there are ongoing state

proceedings that are judicial in nature; (2) the state proceedings implicate important state

interests; and (3) the state proceedings afford an adequate opportunity to raise the federal

claims.” Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 408 (3d Cir.

2005) (citing Gwynedd Props., Inc. v. Lower Gwynedd Twp., 970 F.2d 1195, 1200 (3d

Cir. 1992)). Even when this test is met, there are two exceptions: “Younger abstention is

not appropriate when ‘(1) the state proceedings are being undertaken in bad faith or for

purposes of harassment or (2) some other extraordinary circumstances exist.” Lazaridis

v. Wehmer, 591 F.3d 666, 670 n.4 (3d Cir. 2010) (quoting Schall v. Joyce, 885 F.2d 101,

106 (3d Cir. 1989)).

Younger operates to bar suits for injunctive and declaratory relief. Anthony v.

Council, 316 F.3d 412, 418 n.6 (3d Cir. 2003) (citing Samuels v. Mackell, 401 U.S. 66, 73

(1971)). With respect to Plaintiffs’ injunctive and declaratory claims, all three

requirements for Younger abstention are satisfied. First, there are ongoing state

proceedings that are judicial in nature, as both Howard and Petrovey have pending OAL

hearings. Second, the protection of children from abuse and neglect is an important state

interest. Third, Plaintiffs may challenge the constitutionality of N.J. Stat. Ann. § 9:6-8.11

on due process grounds in the state proceedings. See Zahl v. Harper, 282 F.3d 204, 210

(3d Cir. 2002). Furthermore, neither of the exceptions to Younger applies here. Plaintiffs

do not claim that the DYFS proceedings are motivated by bad faith or for the purpose of
 We also affirm the denial of plaintiffs’ motion for preliminary injunctive relief, 3

because, for the reasons cited by the District Court, the plaintiffs failed to demonstrate

entitlement to such relief.

 Defendants argue that dismissal of these claims was nevertheless warranted based on a 4

declaration that they submitted with their response to the motion for preliminary

injunction that stated that names are not placed in the Registry during the pendency of an

appeal. (S.A. at 34–35.) It states further that as of the date of the declaration, no check of

the Registry had been requested or performed with respect to Howard. (Id. at 35.) “As a

general matter, a district court ruling on a motion to dismiss may not consider matters

extraneous to the pleadings. However, an exception to the general rule is that a document

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harassment. We have explained that “circumstances are extraordinary in the relevant

Younger sense where they create an extraordinarily pressing need for immediate federal

equitable relief, and do not simply present a unique or unusual factual situation.” Sullivan

v. City of Pittsburgh, 811 F.2d 171, 179 (3d Cir. 1987) (internal quotation marks &

citations omitted). In arguing that abstention is improper here, Plaintiffs cite the long

duration of the state proceedings; this is insufficiently extraordinary to warrant federal

relief. Accordingly, we will affirm the dismissal of Plaintiffs’ claims for injunctive and

declaratory relief against all Defendants. 3

With respect to Plaintiffs’ claims for damages and attorney fees against Whitaker

and Lease in their individual capacities, however, we have held that “a district court,

when abstaining from adjudicating a claim for injunctive relief, should stay and not

dismiss accompanying claims for damages and attorney fees when such relief is not

available from the ongoing state proceedings.” Williams v. Hepting, 844 F.2d 138,

144–45 (3d Cir. 1988) (internal quotation marks & citation omitted). Here, the District

Court dismissed Plaintiffs’ damages and attorney fees claims against all Defendants

rather than staying them. 4
integral to or explicitly relied upon in the complaint may be considered without

converting the motion [to dismiss] into one for summary judgment.” In re Burlington

Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (internal quotation marks &

citations omitted). The declaration submitted by Defendants does not fall into this

exception and thus may not be considered at the motion-to-dismiss stage. All of

Defendants’ arguments in favor of dismissal rely on this declaration and are thus

unavailing.

 Plaintiffs raise various other challenges to the District Court’s dismissal order and the 5

order denying their motion for preliminary injunction. As these arguments are without

merit, we decline to address them further.

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The damages and attorney fees claims against DYFS were properly dismissed

instead of stayed because DYFS is immune from suit under the Eleventh Amendment. 

See Pa. Fed’n of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002)

(“[T]he Eleventh Amendment . . . has been interpreted to render states—and, by

extension, state agencies and departments and officials when the state is the real party in

interest—generally immune from suit by private parties in federal court.”). Whittaker and

Lease in their official capacities are similarly immune from a suit for damages. See id.

While they can be sued in their official capacities for injunctive relief, see Ex Parte

Young, 209 U.S. 123, 155–56 (1908), such claims were subject to dismissal under

Younger. Accordingly, we will affirm the District Court’s dismissal of all claims,

including those for damages and attorney fees, against DYFS and against Whittaker and

Lease in their official capacities.

As to Plaintiffs’ claims for damages and attorney fees against Whittaker and Lease

in their individual capacities, the District Court should have stayed rather than dismissed

these claims. Thus, we will vacate the District Court’s Order with respect to these claims

only. 5
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III.

For the foregoing reasons, we affirm the District Court’s denial of Plaintiffs’

motion for preliminary injunction. We affirm in part and vacate in part the District

Court’s Order granting Defendants’ motion to dismiss and remand for further proceedings

in accordance with this opinion.