IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

DANELLE BOSTROM, et al.,

 Plaintiffs,

v.

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES, et al.,

 Defendants.

HON. JEROME B. SIMANDLE

Civil No. 11-1424 (JBS/JS)

OPINION

APPEARANCES:

Louis Charles Shapiro, Esq.

SPRAGUE & SPRAGUE

135 South 19th Street

Suite 400

Philadelphia, PA 19103

Attorney for Plaintiffs Danelle Bostrom, Stephen Bostrom,

J.B. and J.B.

Paul D. Nieves, DAG

Office of the New Jersey Attorney General

R.J. Hughes Justice Complex

P.O. Box 116

Trenton, NJ 08625

Attorney for Defendants Denise Schuh, Tara Broglin, Officer

(FNU) Torres; and Officer (FNU) McCloy

SIMANDLE, Chief Judge:

I. INTRODUCTION

 This matter is before the Court on the motion of Defendants

Denise Schuh, Tara Broglin, Officer (FNU) Torres; and Officer

(FNU) McCloy for summary judgment. [Docket Item 43.] There is

also a pending unopposed motion for leave to file a sur-reply

and/or strike which was filed in response to Defendants' reply

brief. [Docket Item 55.] The Court heard oral argument on both
motions.

The instant action arises out of a search conducted by two

New Jersey Division of Family Services ("DYFS") case workers and

two Human Services Police officers at Plaintiff Danelle Bostrom

and Stephen Bostrom's home at 1:00 AM on December 14, 2006. 

Specifically, on the evening of December 13, 2006, Defendants

McCloy and Torres, Human Services Police officers, located A.B.,

Plaintiffs' adopted daughter who had runaway from a foster home

approximately ten months prior. At the time A.B. went missing

and was found, A.B. was in the custody of DYFS and receiving DYFS

services because she suffered from mental and social problems and

required the services of a therapeutic foster home. A court

order had been issued placing A.B. in the custody of DYFS;

Plaintiffs' parental rights, however, were not terminated. 

Upon locating A.B., Defendants McCloy and Torres transported

her to a local DYFS office where Defendants Schuh and Broglin,

two after-hours case workers, were called in to handle the

situation. Schuh and Broglin looked up A.B.'s information on

DYFS's computer system which mistakenly noted that Plaintiffs,

not DYFS, had custody of A.B. Schuh and Broglin then contacted

the Plaintiffs and the Plaintiffs informed them that DYFS itself

actually had custody of A.B. pursuant to a court order and they

could not take A.B. into their home. Plaintiffs informed Schuh

and Broglin that they had two other minor children, JB1 and JB2,

2
and A.B. posed a threat to them and it was unsafe to let her back

into the family home. Plaintiffs encouraged Schuh and Broglin to

take A.B. to a crisis center.

Schuh and Broglin, after exchanging harsh words with the

Plaintiffs, told the Plaintiffs that if they refused to take

custody of A.B., then their home would have to be searched and

their other two children searched for signs of abuse and neglect. 

Plaintiffs still refused to take custody of A.B. As a result,

Schuh called her supervisor, non-party Joanne Fadool, who 1

allegedly told Schuh that a search of Plaintiffs' home would need

to be done after A.B. was placed in foster care, despite the late

hour of the evening. This search was necessary, according to

Defendants, to remove A.B. from Plaintiffs' custody. 

Schuh, Broglin, Torres and McCloy came to Plaintiffs' home

at 1:00 AM on December 14, after they had placed A.B. in a foster

home, and searched the residence. Defendant Schuh and Broglin

also served Plaintiffs with a Dodd removal form which officially

removed A.B. from Plaintiffs' custody, subject to a prompt

judicial hearing. This search included Broglin and Torres going

into JB1 and JB2's respective bedrooms to do a visual assessment

of the children to make sure they were breathing and did not have

 Fadool is not a defendant in this case and there is no 1

record evidence, either an affidavit or deposition, from her. 

The only evidence of her involvement is Schuh's and Broglin's

deposition testimony.

3
any visible marks or bruises. After concluding the children were

safe, Schuh and Broglin informed Stephen Bostrom that Plaintiffs

would need to be in court the next day, December 15, as a result

of the Dodd removal.

Later that morning, A.B.'s caseworker called the Bostroms

and informed them that they did not have to come to court on

Friday because DYFS already had custody of A.B. and the Dodd

removal was unnecessary. 

The Plaintiffs brought the instant action pursuant to

Section 1983 alleging violations of the Fourth Amendment,

procedural and substantive due process and the First Amendment. 

Defendants maintain that it was DYFS's policy to conduct a home

search when a minor was removed from the household and other

minor children continued to reside at the household. The

Defendants argue that they were mistaken about A.B.'s custody and

this mistake was at most negligent. The Defendants do not argue

that there were any allegations of child abuse by the Plaintiffs

with regard to JB1 or JB2 or that they had any reason to believe

that JB1 or JB2 were in imminent danger. It is undisputed that

the catalyst for the home search was the Plaintiffs' refusal to

let A.B. into their home and Plaintiff Stephen Bostrom's

purportedly hostile tone when discussing the situation with

Defendant Broglin over the phone. 

Defendants now move for summary judgment. Defendants argue

4
that the evidence does not support Plaintiffs' constitutional

claims and alternatively, Defendants argue they are entitled to

qualified immunity. Plaintiffs oppose Defendants motion and also

move to strike portions of Defendants' reply.

II. BACKGROUND

A. Statement of the Facts

The following is a detailed factual background of the case. 

These facts are viewed in the light most favorable to the

Plaintiffs, as the non-moving parties on this motion for summary

judgment.

Plaintiffs Stephen and Danelle Bostrom are the adoptive

parents of A.B. and have two biological children, JB1 and JB2. 

(Pls.' Ex. B, Deposition of Stephen Bostrom, taken on December 1,

2010 (hereinafter "SB Dep.") at 7:19-22; 19:8.) Plaintiffs

fostered A.B. when she was an infant and ultimately adopted her. 

(Pls.' Ex. C, Deposition of Danelle Bostrom, taken on December 1,

2010 (hereinafter "DB Dep.") at 14:14-20; 19:14-19.) A.B. was

born crack cocaine and heroin addicted and started to exhibit

signs of psychological and social problems at an early age. (Id.

at 23:10-24.) 

When A.B. was thirteen, she started to run away from home

and eventually the Plaintiffs admitted her to the Crisis Center

in Bridgeton Hospital where she was diagnosed with borderline

5
personality disorder. (Id. at 24:13-27:24.) When A.B. would run

away, it was believed she would engage in sexual activity. In

addition, A.B. began hearing voices and making violent threats

against Danelle Bostrom while at home. Consequently, Plaintiffs

contacted DYFS for assistance. (Id. at 28:14-23.) Plaintiffs

signed a residential placement agreement with DYFS which allowed

DYFS to take temporary custody of A.B. and place her in a mental

health facility. (Id. at 29:16-16.) The last date when A.B.

resided with the Bostroms was August 29, 2004; she was placed in

a DYFS facility on August 30, 2004 and had been in DYFS custody

since June 22, 2005. (Pl.'s Ex. K, Verified Complaint, at ¶ 6b,

and Order to Show Cause and To Appoint a Law Guardian with

Temporary Custody.) Thus, A.B. had not resided in the Bostrom

household for more than 27 months before the night in question on

December 13, 2006. 

When A.B. was placed in the mental health facility, she

underwent a physical and it was discovered that she was two

months pregnant. (Id. at 30:14-16.) A.B. was then moved to a

different facility, Capable Adolescent Mothers ("CAM"), in

Burlington. (Id. at 31:14-17.)

A.B. gave birth to her daughter in the CAM facility and

shortly thereafter ran away with the baby. (Id. at 32:12-14.) 

A.B. returned to the facility at which point DYFS took custody of

the baby and A.B. was placed in a therapeutic foster home. (Id.

6
at 33:8-16.) A permanency order was issued by the Superior Court

of New Jersey on August 4, 2005 wherein the court concluded, "It

is not and will not be safe to return the child (A.B.) home in

the foreseeable future because: A.B. needs the services of a

therapeutic foster home." (Pls.' Ex. L.) 

On February 11, 2006, A.B. ran away from her foster home and

was reported missing. (Pls.' Ex. F., Deposition of Noberto

Torres, taken on February 29, 2012 (hereinafter "Torres Dep.") at

33:6-8.) DYFS itself reported A.B. missing to the Human Services

Police on June 28, 2006. (Id. at 34:10-16.) Defendant Torres was

assigned to the case and began investigating A.B.'s whereabouts

on November 8, 2006. (Id. at 33:16-21.) 

Also during 2006, several hearings were held regarding

A.B.'s custody and court orders were entered which stated that

A.B. and her daughter were to remain in the care and custody of

DYFS. (Pls.' Ex. J, Deposition of Tara Broglin, taken on

September 27, 2012 (hereinafter "Broglin Dep.") at 82:24-87:20.) 

The most recent order prior the December incident was issued by

the Superior Court on May 2, 2006, and reaffirmed that A.B. was

to continue in the custody and care of DYFS. (Id. at 86:12-19.) 

In November, 2006, Defendant Torres began his investigation

to locate A.B. and developed a "really good relationship" with

Plaintiffs. (Torres Dep. at 37:6-7.) Torres met with the

Plaintiffs and the Plaintiffs informed Torres of A.B.'s

7
behavioral problems, their inability to control her, A.B.'s

placement in DYFS programs to attempt to correct these problems

and A.B.'s tendency to run away. Presumably during his

investigation, Torres had the opportunity to look at A.B.'s

troubled history and series of placements over the many months of

DYFS custody including the court orders that established that

A.B. was not in the Bostroms' custody. Plaintiff Danelle Bostrom

explained to Torres that she believed A.B. was being held against

her will for prostitution. (Id. at 35:8-37:3.) 

In December 2006, Defendant Torres received leads regarding

A.B.'s whereabouts and eventually located A.B. on December 13,

2006, in a house living with an adult male. (Id. at 42:13-46:9.) 

Defendant Torres, working with his partner, Defendant McCloy,

took A.B. into custody and transported her to the Bridgeton DYFS

office at approximately 8:00 PM. (Id. at 46:23-47:9; 49:2-50:14;

60:11-14.) Because A.B. was located after-hours, Torres and

McCloy contacted the DYFS hotline to send caseworkers to the

Bridgeton office so A.B. could be placed in a home. (Id. at

49:2-11.) At the time Torres and McCloy found A.B., Torres was

under the impression that DYFS had custody of A.B. and did not

have reason to believe Plaintiffs had custody over A.B. (Id. at

47:18-48:14.) 

Defendant Schuh and Defendant Broglin arrived at the

Bridgeton office as the after-hours caseworkers called in to

8
handle A.B.'s placement at approximately 8:30 PM. (Id. at 50:2-

6; 60:15-18.) Defendant Broglin had no prior contact with A.B.

and had not handled A.B.'s case previously. (Pls.' Ex. J,

Deposition of Tara Broglin, taken on September 27, 2012 ("Broglin

Dep.") at 12:15-22.) Defendant Schuh, on the other hand, was

A.B.'s caseworker from 2004-2005 and at the time of the December

13, 2006 incident was the supervisor on A.B.'s case. (Pls. Ex. H,

Deposition of Denise Schuh-Martinelli, taken on January 23, 2012

and January 27, 2012 ("Schuh Dep.") at 26:5-27:7; 36:16-37:19;

41:17-42:5.) As part of Schuh's duties as a supervisor, Schuh

met regularly with A.B.'s caseworker, Shakeiya Cuff, and was

familiar with A.B.'s file. (Id.) Schuh likewise thus had reason

to know that A.B. had not resided with the Bostroms since August

of 2004 and that A.B. was in DYFS custody. At the time Schuh

responded to the after-hours call, Schuh was working in her

capacity as a caseworker with the Special Response Unit, not as

the supervisor on A.B.'s case. (Id. at 54:1-6.)

When Broglin arrived at the Bridgeton office, she spoke with

A.B. to discuss the relationship with her family and explain that

A.B. would need to get a complete physical prior to being placed. 

(Broglin Dep. at 20:21-21:12.) Broglin also spoke with Officers

McCloy and Torres. (Id. at 22:8-23:16.) Broglin spoke with

Schuh who informed her that Plaintiffs had custody of A.B., not

DYFS. (Id. at 25:11-23.) 

9
Schuh allegedly came to the conclusion that A.B. was in

Plaintiffs' custody by checking the DYFS computer system which

indicated that Plaintiffs, not DYFS, had custody. (Schuh Dep. at

86:25-87:13.) The DYFS computer system did not have digital

copies of court orders or paperwork from the file. Rather, the

DYFS computer system was a database and information was put in

the system by the DYFS clerical department, not caseworkers or

supervisors. (Schuh Dep. at 105:8-107:9; Broglin Dep. at 88:7-

90:14.) Information was sometimes entered incorrectly on the

DYFS computer system and it was known by Broglin and Schuh that

information contained in the database could be inaccurate. 

(Schuh Dep. at 105:22-23; Broglin Dep. at 88:15-22.) Apparently,

the computer database was so incorrect and out of date that it

reflected none of the activity over the many months of DYFS' own

custody of A.B. Schuh did not check the physical file on A.B. to

determine custody. Schuh testified that this was because the

physical file was located in Trenton for an adoption summary to

be written about A.B.'s child. (Id. at 210:22-25.) Broglin did

not independently check the computer system or physical file to

verify that Plaintiffs had custody of A.B. (Broglin Dep. at

25:15-23; 27:3-15.) There is a dispute whether A.B.'s physical

file was located in the office on the night of the incident. 

Shakeiya Cuff, A.B.'s caseworker, testified that A.B.'s file was

in her desk in the Bridgeton office and accessible on the night

10
of the incident. (Pls.' Ex. I, Deposition of Shakeiya Cuff,

taken on February 23, 2012 ("Cuff Dep.") at 131:6-15.)

Broglin then called Plaintiffs to inform them that A.B. had

been found and she would be returned to their home once a

physical was complete. (Id. at 33:8-23.) Stephen Bostrom

answered the phone and spoke with Broglin. Broglin informed Mr.

Bostrom that A.B. was found and they were going to take her to

the hospital to get checked and then return her to Plaintiffs'

home. (SB Dep. at 13:3-8.) Mr. Bostrom told Broglin, "You

cannot bring her to our home" and informed her that there was a

court order in place telling DYFS not to return her to the family

home. (Id. at 13:10-12.) Broglin insisted that there was no

problem bringing A.B. to Plaintiffs' home, that there didn't

appear to be anything wrong with A.B. and she did not understand

why Plaintiffs would not accept A.B. back into the home. (Id. at

13:24-14:4.) Mr. Bostrom informed Broglin that she should review

A.B.'s file, that A.B. needed to be taken to Crisis and that a

court order was in place preventing her from residing at

Plaintiffs' home. (Id. at 14:13-20.) Mr. Bostrom testified that

Broglin then told Mr. Bostrom that he was an unfit parent and was

derogatory toward him, using profanity. (Id. at 14:23-15:1.)

Danelle Bostrom overheard Broglin yelling profanities at her

husband and noticed Stephen getting irate. Danelle then took the

phone from Stephen and proceeded to speak with Broglin in an

11
effort to calm the situation down. (DB Dep. at 40:4-10.) Broglin

continued to berate Danelle saying things like, "What kind of F'n

parent aren't [sic] you" when Danelle tried to explain why A.B.

could not return home. (Id. at 41:8-11.) Danelle explained to

Broglin that a court order was in place stating that it was

unsafe for A.B. to reside at their home. Broglin then told

Danelle not to tell her how to do her "F'n job." (Id. at 42:6-

10.) Danelle then asked to speak to Broglin's supervisor. (Id.

at 41:12-13.)

Denise Schuh then got on the phone with Mrs. Bostrom. Mrs.

Bostrom was initially relieved because Schuh worked on A.B.'s

case for over two years. (Id. at 41:14-16.) Danelle asked

Schuh, "What is going on, why can't they . . . " and was cut off

by Schuh. (Id. at 41:17-18.) Schuh said, "Mrs. Bostrom, if you

don't let us drop your daughter off after we place her, it will

be after midnight, we will be coming to your home to make sure

your boys are still breathing." (Id. at 41:19-22.) Danelle

Bostrom told Schuh to look in A.B.'s file and that A.B. could not

return home. Schuh responded by saying, "You heard what I said." 

(Id. at 41:23-42:2.)

Defendants Schuh and Broglin do not deny having these

conversations with the Plaintiffs, although they deny using

profanity. Schuh and Broglin also deny that the Plaintiffs

informed them about a court order prohibiting A.B. from residing

12
at the family home. However, Broglin admits that the Plaintiffs

expressed concern for the safety of their two other minor

children, JB1 and JB2, if A.B. stayed in their home. (Broglin

Dep. at 35:3-36:7.) Schuh only admits to speaking with Danelle

Bostrom for approximately five minutes after Broglin informed her

Plaintiffs refused to take custody of A.B. (Schuh Dep. at 80:7-

10; 88:19-25.) It is undisputed by the parties that court orders

were in effect which prohibited A.B. from returning to the family

home and the computer system erroneously indicated the Plaintiffs

had custody of A.B.

Plaintiffs then prepared for DYFS caseworkers to come to

their home. First they called the township police and the state

police for assistance. Both police departments informed them

that they would have to let DYFS into their home and that if they

refused, they would assist DYFS and make them open their door. 

(DB Dep. at 43:2-9.) Plaintiffs felt defenseless and decided to

stay up and wait for DYFS to come to their home. (Id. at 43:19-

44:21.)

In the meantime, Defendants Schuh and Broglin prepared to

place A.B. in a foster home and remove A.B. from Plaintiffs'

custody. Broglin, after speaking with the Plaintiffs, did not

make any attempt to verify that Plaintiffs, not DYFS, had custody

of A.B. Instead, Broglin relied on Schuh's previous

representation that Plaintiffs had custody. Schuh likewise did

13
not check A.B.'s actual records to verify whether DYFS or

Plaintiffs had custody of A.B. after Plaintiffs refused to allow

A.B. into their home. Schuh relied solely on her previous check

of the flawed computer system. Apparently, Schuh's personal

knowledge of A.B.'s tumultuous history and DYFS custody also

failed her. In addition, Schuh did not speak further with the

Plaintiffs to verify that they had custody. (Schuh Dep. at

87:10-13.) 

During this time, A.B. waited in the DYFS office with

Officers Torres and McCloy. Officer Torres testified that A.B.

was not upset about being in DYFS custody and he never observed

her yelling at her parents over the phone. (Torres Dep. at

64:21-24; 66:25-67:10.) Schuh disputes this and testified that

at times she observed A.B. visibly upset when talking to her

father over the phone. (Schuh Dep. at 241:9-242:23.) Neither

Stephen or Danelle Bostrom testified to having any conversation

with A.B. over the phone on the night of the incident.

Schuh secured a placement for A.B. in a foster home and

prepared to serve Plaintiffs with emergency removal papers,

commonly referred to as a Dodd removal order, which would

transfer custody of A.B. from Plaintiffs to DYFS. (Schuh Dep. at

141:2-6; 211:20-212:11; 218:9-219:6.) Schuh contacted her oncall supervisor, Joanne Fadool, to inform her of the situation

and discuss whether it was necessary to go out to Plaintiffs'

14
home to serve them with the Dodd papers. (Id. at 219:3-10.) 

Schuh testified that she told Fadool the Plaintiffs had custody

of A.B. and needed to be served with court paperwork. Schuh also

informed Fadool that Plaintiffs "did not want us to come to the

home and they were very belligerent with us" and asked Fadool for

guidance on how to proceed. (Id. at 67:7-15.) Schuh's written

report of the incident also reflects that she "called Supervisor

J. Fadool to inform of the uncooperative and belligerent

parents." (Schuh Dep. at 278:15-18.) After speaking with Schuh,

Fadool authorized the Defendants to search Plaintiffs' home. 

Schuh admitted that there was no basis to conclude that the

other two minor children, JB1 and JB2, residing at the Bostrom

home, were in danger. (Id. at 219:18-20.) Broglin also admitted

that she had no specific information that JB1 or JB2 were in any

danger at the Plaintiffs' home. (Broglin Dep. at 46:9-17.) 

Schuh testified that Fadool instructed her to go out to 2

Plaintiffs' home, serve the Dodd paperwork and conduct a search

of Plaintiffs' home and assess the safety of the other two minor

children. (Schuh Dep. at 219:3-220:1.) This search was to be

conducted because it was the policy of DYFS to search the home

and interview the remaining minor children when a Dodd removal

was issued. This policy and procedure was not written down or

 Fadool's testimony, either in deposition form or 2

affidavit, is not part of the record. The only evidence of

Fadool's instructions to Schuh is Schuh's deposition testimony.

15
produced in discovery but was testified to by Schuh and Broglin. 

(Schuh Dep. at 219:23-220:6; Broglin Dep. 29:6-21; 47:4-18.)

A.B. was then taken to the hospital and medically cleared. 

Then A.B. was successfully placed in a foster home in Salem. 

(Broglin Dep. at 51:2-9.) Schuh and Broglin then asked Officers

Torres and McCloy to accompany them when they served the removal

papers. Specifically, Schuh and Broglin told Torres and McCloy

that Stephen Bostrom was hostile to them over the phone and they

had a concern for their safety. (Torres Dep. at 68:3-69:1.) As

Human Services Police Officers, part of Torres and McCloy's job

responsibilities included accompanying caseworkers on

investigations when the caseworker felt concerned for their

safety. (Id. at 20:4-24.) 

At 1:04 A.M. on the morning of December 14, 2013, Defendants

Schuh, Broglin, Torres and McCloy arrived at Plaintiffs' home and

proceeded to serve Plaintiffs with the Dodd removal forms, search

their home and assess the safety of JB1 and JB2. (Torres Dep. at

67:24-68:2.) When the Defendants arrived, Stephen Bostrom met

them at the doorway to the house. Danelle Bostrom, JB1 and JB2

were asleep. (SB Dep. at 17:24-18:7.) 

Stephen Bostrom saw headlights come down his driveway and

met the four Defendants outside his door. (SB Dep. at 23:19-

24:11.) No introductions were made but Mr. Bostrom recognized

Officer Torres from previous meetings and knew Denise Schuh. 

16
(Id. at 24:18-26:3.) Schuh then told Mr. Bostrom, "We are

issuing an emergency removal of your child without a judge's

consent." (Id. at 25:22-24.) Schuh explained that an emergency

removal did not require a warrant. (Id. at 30:3-13.) Mr.

Bostrom responded, "Do you really have to do this?" (Id. at

26:2-3.) Schuh replied, "I am doing this" and asked Mr. Bostrom

to open the door. (Id. at 26:5-11.) Mr. Bostrom replied, "It

doesn't appear that I have a choice" and opened the door. (Id.

at 26:13-14.) Stephen Bostrom testified that "I felt that I had

no choice but to open the door to my house because I did not know

my exact rights." (Id. at 26:7-9.) 

Officer Torres and Broglin entered the house. There is

conflicting testimony whether Officer McCloy and Schuh entered

the house or remained outside. Broglin and Schuh testified that

McCloy and Schuh were not allowed in by Mr. Bostrom and remained

outside. Torres, McCloy and Mr. Bostrom testified that all four

defendants entered the home.

Once inside the house, Mr. Bostrom was informed that the

Defendants would be checking the house and checking JB1 and JB2. 

Mr. Bostrom requested that Officer Torres and Broglin be the

individuals to conduct the search and asked Schuh and McCloy to

remain in the foyer. (SB Dep. at 26:18-27:22.) Mr. Bostrom

explained that he felt he could trust Officer Torres and that he

did not trust Broglin or Schuh walking around his home and near

17
his children. (Id.)

Broglin and Torres then began their inspection of the house. 

Broglin checked for heat, opened the refrigerator and cabinets to

verify there was food, and turned on the faucet to verify that

the Plaintiffs had running water. (Id. at 31:3-13.) Broglin

then asked where JB1 and JB2 were and proceeded down the hallway. 

First, Broglin went to JB1's room where JB1 appeared to be

sleeping. Broglin saw JB1 breathing and could see his legs which

did not have any exposed marks. Officer Torres and Mr. Bostrom

were present when Broglin did her visual examination of JB1 from

the doorway of JB1's bedroom. (Id. at 31:17-32:20.)

JB1 testified in his deposition that he was partially awake

and heard low voices outside his room. JB1 stated that he kept

his eyes closed but saw lights sweep the room. JB1 was aware of

people outside his door and feeling tension. (Pls.' Ex. D,

Deposition of JB1, taken on April 23, 2012, ("JB1 Dep.") at 29:9-

32:20.)

Broglin then proceeded to JB2's room with Mr. Bostrom and

Officer Torres. JB2 was covered up in his blankets asleep. 

Broglin then proceeding to walk into his room and lean over JB2

to verify that he was breathing. Broglin was approximately 12-18

inches away from JB2 but did not touch him. (SB Dep. at 32:22-

34:7.) JB2 did not wake up during this encounter. Broglin then

stated, "The children appear to be fine, the home appears to be

18
fine." (Id. at 34:19-21.)

Stephen Bostrom then escorted Broglin and Torres back to the

foyer. Schuh then informed Mr. Bostrom that there was a court

date on the emergency removal notice. (Id. at 35:24-36:2.) 

Officer McCloy then told Mr. Bostrom that he should not treat his

child like a stray dog and kick it to the curb. (Id.) Mr.

Bostrom then asked the Defendants if they were finished. The

Defendants said they were. Mr. Bostrom then told the Defendants

to get out of his home. (Id. at 36:3-10.)

The Defendants then left the house. As Schuh was leaving,

Mr. Bostrom told her that she had made a very big mistake and

that the Plaintiffs had not done anything wrong. Schuh advised

Mr. Bostrom not to threaten her. The Defendants then left. (Id.

at 36:11-21.)

Later that day on December 14th, Plaintiffs contacted an

attorney and sought legal advice with regards to the emergency

removal. That afternoon, Shakeiya Cuff telephoned the Plaintiffs

and informed then that they did not need to appear in court the

next day. (Id. at 39:9-40:17.) Mr. Bostrom asked Cuff why they

did not have to appear and she said she did not know but could

find out. Cuff put Mr. Bostrom on hold and came back on the

phone. Cuff informed Mr. Bostrom that it was apparent DYFS had

custody of A.B. the entire time and the emergency removal was not

necessary. (Id. at 40:17-41:1.) 

19
B. Procedural History

The instant action was filed in New Jersey Superior Court,

Cumberland County on December 12, 2008, alleging violations of 42

U.S.C § 1983. The Plaintiffs named as defendants New Jersey

Division of Youth and Family Services (DYFS), New Jersey

Department of Human Services (NJHS), Denise Schuh, Tara (LNU),

Officer (FNU) Torres, Officer (FNU) McCloy, Thomas Burns and

fictitious defendants John Does. Defendants Schuh, McCloy, and

Burns filed answers to the complaint. 

On July 31, 2009, the state court issued an order dismissing

all claims for money damages against DYFS and NJHS. The only

remaining claims against these two defendants were for injunctive

relief. [Docket Item 1-8.] Discovery was then conducted. On

January 6, 2011, the state court issued a case management order

which noted that the party previously identified as Tara (LNU)

was identified as Tara Broglin. The state court permitted

Plaintiff to file an amended complaint naming Tara Broglin as a

defendant and permitting counsel for Defendants to waive and

accept formal service of the amended complaint on behalf of Tara

Broglin. [Docket Item 1-11.]

The amended complaint was received and filed on February 22,

2011 naming Tara Broglin as a defendant. [Docket Item 1-13.] 

Defendant Tara Broglin was then represented by Deputy Attorney

General, along with all the other defendants in this case. 

20
Defendant Broglin, in lieu of answering, filed a notice of

removal and removed the case to federal court on the basis of

federal question jurisdiction. [Docket Item 1.]

After the case was removed, Defendants DYFS and NJHS moved

to dismiss the complaint and this Court issued an opinion

dismissing all claims against these state agencies. [Docket

Items 4 & 22.] 

Discovery was concluded and the remaining defendants now

move for summary judgment on all claims. 

III. DISCUSSION

Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A dispute is “genuine” if “the evidence is such that a

reasonable jury could return a verdict for the non-moving party.” 

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

fact is "material" only if it might affect the outcome of the

suit under the applicable rule of law. Id. Disputes over

irrelevant or unnecessary facts will not preclude a grant of

summary judgment. Id. The Court will view any evidence in favor

of the nonmoving party and extend any reasonable favorable

inferences to be drawn from that evidence to that party. Hunt v.

Cromartie, 526 U.S. 541, 552 (1999). See also Scott v. Harris,

21
550 U.S. 372, 378 (2007) (The district court must “view the facts

and draw reasonable inferences in the light most favorable to the

party opposing the summary judgment motion.”).

A defendant’s entitlement to qualified immunity hinges on

two considerations. First, a court must determine “whether the 3

plaintiff has alleged a deprivation of a constitutional right at

all,” Pearson v. Callahan, 555 U.S. 223, 232 (2009)(citation

omitted), which, as the Court of Appeals has emphasized, is not a

question of immunity as such, “but is instead the underlying

question of whether there is even a wrong to be addressed in an

analysis of immunity.” Curley v. Klem, 499 F.3d 199, 207 (3d

Cir. 2007). A court must then decide “whether the right that was

violated was clearly established, or, in other words, whether it

would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Id. (internal

quotations and citations omitted). This inquiry “must be

undertaken in light of the specific context of the case, not as a

 While under Saucier v. Katz, 533 U.S. 194 (2001), 3

overruled in part by Pearson, 555 U.S. at 234, the qualified

immunity standard followed a “rigid order of battle,” Pearson,

129 S.Ct. at 817 (citation omitted), in which the question of

whether a right was clearly established was assessed only if the

plaintiff had adequately alleged a violation in the first place,

the Supreme Court adopted a more flexible approach in Pearson. 

As the Court explained, “[b]ecause the two-step Saucier procedure

is often, but not always, advantageous, the judges of the

district courts and the courts of appeals are in the best

position to determine the order of decisionmaking will best

facilitate the fair and efficient disposition of each case.” 

Pearson, 555 U.S. at 242. 

22
broad general proposition.” Brosseau v. Haugen, 543 U.S. 194,

198 (2004) (citation omitted).

Defendants Schuh, Broglin, Torres and McCloy move for

summary judgment dismissing all claims against them with

prejudice. The Plaintiffs bring the following claims against the

Defendants arising from the December 13 and 14, 2006, incident

pursuant to 42 U.S.C. § 1983: Violation of the Right to Familial

Integrity (Count I); Violation of Substantive and Procedural Due

Process (Count II); Violation of the Fourth Amendment (Count

III); Violation of the First Amendment (Count IV); Injunctive

Relief (Count V). The Defendants argue that no genuine issues of

material fact exist and the Plaintiffs have failed to establish

their claims. Alternatively, the Defendants argue they are

entitled to qualified immunity. Each claim will be addressed

separately below.

A. Fourth Amendment Claim (Count III)

The Defendants argue their motion for summary judgment on

Plaintiffs' Fourth Amendment claim should be granted for several

reasons. First, Defendants argue that they are not subject to

the Fourth Amendment as the "home safety inspection" they

conducted is not a search within the meaning of the Fourth

Amendment. Defendants rely on Wyman v. James, 400 U.S. 309

(1971) in support of that argument. Next, Defendants argue that

even if the Fourth Amendment applied, Plaintiff Stephen Bostrom

23
consented to the search. Finally, Defendants argue that an

emergency situation existed because they reasonably believed the

other minor children in the home were in danger. Defendants

maintain that while they were mistaken about who had custody of

A.B., this mistake was at most negligent and cannot be the basis

for liability under Section 1983.

1. Does the Fourth Amendment apply?

In Wyman, the Supreme Court held that home visitations by

case workers from the New York Department of Social Services were

not "searches" within the meaning of the Fourth Amendment. 400

U.S. 309, 317 (1971). The plaintiff in Wyman was a recipient of

Aid to Families with Dependent Children who refused to let her

caseworker visit her home. The purpose of the caseworker's visit

was to gather information from the plaintiff relevant to her need

for public assistance. As a result of the plaintiff's refusal to

allow a home visit, her benefits under the program were

terminated. Wyman, 400 U.S. at 313-14. 

The Supreme Court found that the caseworker's home visit was

not a search within the meaning of the Fourth Amendment. The

Supreme Court reasoned that the caseworker's purpose in the home

is more rehabilitative, not investigative. If a person denies

entry to the home, no visit will take place and the financial aid

will simply be terminated. Consequently, the Supreme Court

concluded that "the visitation in itself is not forced or

24
compelled" and if a recipient denies a home visit, "there is no

entry of the home and there is no search." Id. at 318. 

Therefore, the Supreme Court found that the caseworker's home

visit was not a search within the meaning of the Fourth

Amendment.

Alternatively, the Supreme Court also concluded that if the

Fourth Amendment applied, the search conducted in Wyman was

reasonable. The court listed several factors, including: the

public's interest in protecting dependent children; the

distribution of federal and state funds in public trust; the

rehabilitative focus of the welfare program; written notice was

provided to beneficiaries several days in advance of the home

visit; no forcible entry is permitted; visitation outside working

hours or "snooping in the home" were forbidden; visit was not

made by police or uniformed authority; the home visit was not a

criminal investigation; and the warrant procedure would be more

intrusive than the procedure in place by the department of social

services. Id. at 318-23.

After reviewing the Wyman decision and subsequent case law,

the Defendants' argument is unpersuasive and the Court concludes

that the inspection of the Bostrom home conducted by Defendants

is a search within the meaning of the Fourth Amendment.

Since the Wyman decision was issued, it has not been applied

in the context of a home inspection by social service workers

25
investigating allegations of child abuse in this Circuit. The

Third Circuit, in Good v. Dauphin County Social Services for

Children and Youth, 891 F.2d 1087 (3d Cir. 1989), held that a

home inspection conducted by a case worker and police officer

investigating child abuse allegations was a search within the

meaning of the Fourth Amendment. The District of New Jersey

likewise found that the Fourth Amendment applied in analyzing

whether a caseworker's entry into a home was reasonable when

investigating allegations of child abuse. Coleman v. State of

New Jersey Division of Youth and Family Services, 246 F. Supp. 2d

384, 391 (2003)(J. Irenas). Consequently, Wyman has not been

extended to apply to a caseworker's home investigation pertaining

to suspected child abuse. These investigations have been

recognized in the Third Circuit as government searches and

subject to the restrictions of the Fourth Amendment.

Furthermore, the facts of this case are distinguishable from

Wyman. Here, the Defendants' purpose in visiting the home was

purely investigative. The proffered justification for the entry

was to protect children who may be in danger from their parents. 

The search of the home was not in any way related the receipt of

public funds or public assistance. The social workers were

accompanied here by two police officers employed by DYFS. 

Finally, if Plaintiffs refused entry into the home, the

investigation still would have taken place. Whether Defendants

26
would have forced entry into the home, contacted the state police

for assistance or sought an ex parte order from the court, the

investigation would have occurred. Unlike the home visit in

Wyman which would not have occurred if beneficiaries refused

entry, here, Plaintiffs' refusal did not mean that no search

would take place. Accordingly, Wyman is distinguishable from

this case and Defendants' investigation of Plaintiffs' home was a

search within the meaning of the Fourth Amendment.

Finally, Defendants' search in this case, unlike Wyman, was

not reasonable per se. While there is a strong public interest

in protecting the welfare of dependent children, this does not

give social workers carte blanche to conduct an invasive home

search that does not comply with the Fourth Amendment. Here, as

distinct from Wyman, the Plaintiffs were not receiving public

funds; there was no advance written notice of the search; the

investigation was conducted at 1:00 AM (well outside normal

business hours); the Plaintiffs' home and children were

inspected; and the caseworkers were accompanied by armed,

uniformed Human Services Police Officers. 

Therefore, the Fourth Amendment applies and the Defendants'

reliance on Wyman is unpersuasive in the present circumstances. 

2. Did Plaintiff Stephen Bostrom consent to the

search?

It is well established that a search conducted without a

warrant issued upon probable cause is per se unreasonable under

27
the Fourth Amendment unless an exception to the warrant

requirement applies. Schneckloth v. Bustamonte, 412 U.S. 218

(1973). One exception to the warrant requirement is that the

search is conducted with consent. Id. Consent must be given

voluntarily and must not be the result of coercion, express or

implied. Id. at 248. The Supreme Court has explained:

if under all the circumstances it has appeared that the

consent was not given voluntarily -- that it was coerced

by threats or force, or granted only in submission to a

claim of lawful authority -- then we have found the

consent invalid and the search unreasonable.

Id. at 233. "Voluntariness is a question of fact to be

determined from all the circumstances." Id. at 248-49. 

In this case, genuine issues of a material fact exist as to

whether Plaintiff Stephen Bostrom consented to the search of his

home. Defendants testify in their deposition that Mr. Bostrom

invited them inside and welcomed them into his home. Mr.

Bostrom's testimony tells a different story. Mr. Bostrom

testified that he met the Defendants outside his home and asked

if the search was necessary. Defendant Schuh allegedly responded

that the search would happen and it was necessary. Two uniformed

and armed Human Services Police Officers, McCloy and Torres, were

present with the DYFS case workers which gave them a visible

claim of authority. Mr. Bostrom testified that he told the

Defendants that he understood he did not have a choice and was

required to let them in. Mr. Bostrom was never informed that he

28
could refuse the Defendants' request to enter his home. 

Viewing these facts in the light most favorable to the

Plaintiffs, a rational jury could conclude that Mr. Bostrom only

allowed Defendants into his home because he was submitting to a

claim of lawful authority. While the Defendants were not

obligated to inform Mr. Bostrom of his rights to refuse the

search, Mr. Bostrom's ignorance of his rights is a factor that

can be considered by the jury in determining whether the consent

was voluntary. Schneckloth, 412 U.S. at 249 ("the subject's

knowledge of a right to refuse is a factor to be taken into

account" when determining the voluntariness of consent). Here,

the Plaintiffs called the municipal police and the state police

inquiring about their ability to prevent DYFS from searching

their home. Both police departments told the Plaintiffs they

could not refuse the search. Although these statements would be

hearsay if offered for the truth of their contents, here the

statements are offered as information learned by Mr. Bostrom that

informed his decision to not refuse entry. When caseworkers

arrived at 1:00 AM with two uniformed, armed officers, Stephen

Bostrom again inquired whether the search was necessary. He was

told by Defendant Schuh that the search would be done. Stephen

Bostrom then commented that he did not have a choice and could

not refuse the search. It was only after this dialogue that

Defendants were allowed into the home. A rational factfinder

29
could conclude, based on these facts, if believed, that Stephen

Bostrom's consent was not voluntary.

Therefore, there is a material factual dispute as to the

giving of voluntary consent, which cannot be resolved in a motion

for summary judgment.

3. Did exigent circumstances exist?

The Supreme Court has explained, "warrants are generally

required to search a person's home or his person unless 'the

exigencies of the situation' make the needs of law enforcement so

compelling that the warrantless search is objectively reasonable

under the Fourth Amendment." Mincey v. Arizona, 437 U.S. 385,

393-94 (1978). For example, as the Supreme Court reiterated in

Brigham City, Utah v. Stuart, 547 U.S. 398, 403, (2006), "law

enforcement may enter a home without a warrant to render

emergency assistance to an injured occupant or to protect an

occupant from imminent injury." Id., citing Mincey, 437 U.S. at

392.

In this case, a reasonable jury could find that exigent

circumstances did not exist to justify the search of Plaintiffs'

home without a warrant. Defendants argue that Plaintiffs refused

custody of A.B. and this created an allegation of child

abuse/neglect which triggered a DYFS policy requiring an

investigation of JB1 and JB2. Defendants further rely on

30
N.J.S.A. 9:6-8.29 which permits an emergency removal of a child 4

without a court order. 

However, both Defendant Broglin and Defendant Schuh

testified that they had no reason to believe JB1 and JB2 were in

any imminent danger. No allegations of abuse were made with

regard to these children. Instead, the record contains no

indication that A.B. herself was ever abused in the Bostrom home. 

Defendants Schuh and Broglin also testified that A.B. was not in

any danger from Plaintiffs as A.B. was not residing with the

Plaintiffs at the time of her removal from their custody. A.B.

was successfully placed in a foster home prior to the search of

Plaintiffs' residence and she had not been residing with the

 N.J.S.A. 9:6-8.29(a) provides: 4

A police officer or a designated employee of the

Probation Division or a designated employee of the division

may remove a child from the place where the child is residing,

or any person or any physician treating a child may keep a

child in the person's or physician's custody without an order

pursuant to section 8 of P.L.1974, c.119 (C.9:6-8.28) and

without the consent of the parent or guardian regardless of

whether the parent or guardian is absent, if the child is in

such condition that the child's continuance in the place or

residence or in the care and custody of the parent or guardian

presents an imminent danger to the child's life, safety, or

health, and there is insufficient time to apply for a court

order pursuant to section 8 of P.L.1974, c.119 (C.9:6-8.28),

or any physician or hospital treating a child may keep a child

in custody pursuant to P.L.1973, c.147 (C.9:6-8.16 et seq.).

The Division of Child Protection and Permanency shall not be

required to provide reasonable efforts to prevent placement if

removal of the child is necessary due to imminent danger to

the child's life, safety, or health in accordance with section

24 of P.L.1999, c.53 (C.30:4C-11.2).

31
Plaintiffs when she ran away. Indeed, A.B. had not resided in

the Bostrom residence in 27 months, so there was certainly no

exigency in gaining access to the residence to assure the safety

of JB1 and JB2 merely due to the happenstance that A.B. had

finally been discovered living elsewhere. 

Defendants Schuh and Broglin both testified that they

conducted the search of Plaintiffs' home and JB1 and JB2 because

DYFS policy required them to do a search of a home when serving

Dodd removal papers. Defendant Schuh testified that her

supervisor ordered her to do the search because it was DYFS

policy and could not be waived. It was this policy, and this

policy alone, that was the impetus for searching Plaintiffs'

house. An unwritten internal affairs policy of a state agency 5

cannot trump the mandates of the Fourth Amendment. While it may

be necessary to conduct an emergency warrantless home search when

a caseworker has reason to believe the other minor children in

the home are in danger, there is no evidence that the safety of

JB1 or JB2 were threatened in this case. 

Defendants McCloy and Torres accompanied Schuh and Broglin

on the search solely because Schuh and Broglin felt Mr. Bostrom

was belligerent on the phone and wanted the officers present for

their own safety. The Third Circuit addressed a similar

 This policy has not been produced in discovery and there 5

is no evidence absent Schuh and Broglin's testimony that this

policy actually existed in 2006.

32
situation in Good, where a police officer accompanied a

caseworker on a home search solely because the caseworker feared

for her safety. The Third Circuit held the police officer to the

same standard as the caseworker when analyzing the Fourth

Amendment. Good, 891 F.2d at 1091-1096. The Third Circuit

squarely held that "the state actors making the search must have

reason to believe that life or limb is in immediate jeopardy and

that the intrusion is reasonably necessary to alleviate the

threat." Id. at 1094. However, it should be noted that the

police officer in Good actively participated in the search and

actually conducted a strip search of the child who was reportedly

abused. Id. 

In this case, Defendant Torres accompanied Broglin on the

search and Defendant McCloy remained in the foyer. No strip

search was conducted of the children. JB1 and JB2 remained in

their beds and were subject only to a visual inspection by

Broglin. The only reason Torres and McCloy entered Plaintiffs'

home and participated in the search was because Broglin and Schuh

feared for their safety and requested their assistance. Torres

and McCloy had no independent knowledge of circumstances giving

rise to the 1:00 AM search and had no reason to believe anyone in

Plaintiffs' residence was in danger of imminent harm. Torres, of

course, may have known from his weeks-long investigation before

December 14, 2006, that A.B. had not even resided at the Bostrom

33
residence for several years. Consequently, there is a genuine

issue of material fact as to whether McCloy and Torres violated

the Plaintiffs' Fourth Amendment rights.

4. Qualified Immunity

As discussed above, there is a genuine issue of material

fact as to whether Plaintiffs' Fourth Amendment rights have been

violated. The primary issue before the court is whether the

violation that occurred here was one a reasonable officer in the

Defendants' circumstances could have committed. 

Liability of an individual who acts under color of state law

is not automatic upon the violation of a constitutional right. 

The law recognizes that an officer who acts in a good faith

belief, objectively viewed, that such conduct conformed to the

constitution and federal laws will be immune from liability under

§ 1983. The analysis of qualified immunity requires answering

two questions: First, whether "the officer's conduct violated a

constitutional right," Saucier v. Katz, 533 U.S. 194, 201 (2001),

and second, whether any such constitutional right was "clearly

established," and in particular, "whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation

he confronted." Id. at 201-02. With regard to the warrantless

search of a home, the Supreme Court found in 2004, two years

before the events at issue here, that "[n]o reasonable officer

would claim to be unaware of the basic rule, well established by

34
our cases, that, absent consent or exigency, a warrantless search

of the home is presumptively unconstitutional." Groh v. Ramirez,

540 U.S. 551,, 564 (2004). Within the broad scope of such a

general proposition, however, a court must focus on whether the

particular application of law under the circumstances confronting

the officer were well established by precedent, Ashcroft v. AlKidd, 131 S. Ct. 2074, 2084-85 (2011)(courts should not "define

clearly established law at a high level of generality"). The

Third Circuit has explained that "[t]o determine whether a new

scenario is sufficiently analogous to previously established law

to warn an official that his/her conduct is unconstitutional, we

'inquir[e] into the general legal principles analogous factual

situations . . . and . . . determin[e] whether the official

should have related this established law to the instant

situation.'" Burns v. PA Dep't of Corrections, 642 F.3d 163, 177

(3d Cir. 2011)(quoting Hicks v. Feeney, 770 F.2d 375, 380 (3d

Cir. 1985). Further, the qualified immunity analysis can take

into account whether the official's discretionary decision had to

be a "split-second judgment," Saucier, 533 U.S. at 205 (quoting

Graham v. Connor, 490 U.S. 386, 397 (1989)), or whether the

official had time to deliberate before acting, Reedy v. Evanson,

615 F.3d 197, 224 n. 37 (3d Cir. 2010)(considering that there

were no split-second decisions made by the officials militated

against immunity in summary judgment motion). The Court will

35
apply these principles to ascertain whether it would have been

clear to a reasonable official that his or her conduct was

unlawful in the situation he or she confronted, Saucier, 533 U.S.

at 201-02.

The first issue is whether the Fourth Amendment right at

issue was clearly established. While the right to be free from

unreasonable searches of one's home was well established in 2006,

the Court must analyze whether this right was clear in the

particular circumstances of this case. Anderson v. Creighton,

483 U.S. 635, 639-40 (1987). "Some but not precise factual

correspondence to precedent is necessary for the defendant to be

charged with knowledge of the unlawfulness of his or her

actions." Stoneking v. Bradford Area School District, 882 F.2d

720, 726 (3d Cir. 1989). 

The Third Circuit has previously addressed a social worker's

entrance into a home without a warrant or court order to

investigate child abuse. In Good v. Dauphin County Social

Services for Children and Youth, 891 F.2d 1087 (3d Cir. 1989), a

social services agency received an anonymous tip that a child had

bruises and was possibly being abused by her mother. Id. at

1089. The next day the child was not in school and a social

services caseworker tried to contact the mother without success. 

Id. At approximately 10 P.M. that evening, a caseworker and a

police officer arrived at the home and entered the residence to

36
investigate the allegations of child abuse. Id. at 1089-90. 

During the course of this search, the child was strip searched by

the caseworker despite the protests of the mother. Id. at 1090. 

The Third Circuit found that there were genuine issues of

material fact as to whether the mother consented to the search of

her home and held that exigent circumstances did not exist. The

Third Circuit also concluded that the caseworker and the police

officer were not entitled to qualified immunity. Id. at 1094-96. 

In reaching this conclusion, the Third Circuit reasoned:

The decided case law made it clear that the state may

not, consistent with the prohibition of unreasonable

searches and seizures found in the Fourth and Fourteenth

amendments, conduct a search of a home or strip search

of a person's body in the absence of consent, a valid

search warrant, or exigent circumstances. Under that

caselaw, not only the protected privacy interests but

also the exculpatory concepts of "consent" and "exigent

circumstances" in this context were well defined. 

Id. at 1092. The Third Circuit expressly rejected the

caseworker's argument that because the agency had received an

allegation of child abuse, and prevention of child abuse is a

prevailing state interest, that the caseworker was not bound by

the Fourth Amendment in conducting the search of the mother's

home and the strip search of the child. In rejecting this

argument, the Third Circuit explained:

As we have noted, Anderson teaches that a prior case on

all fours is not necessary; a public official may not

manufacture immunity by inventing exceptions to well

settled doctrines for which the case law provides no

support. It evidences no lack of concern for the victims

of child abuse or lack of respect for the problems

37
associated with its prevention to observe that child

abuse is not sui generis in this context. The Fourth

Amendment caselaw has been developed in a myriad of

situations involving very serious threats to individuals

and society, and we find no suggestion there that the

governing principles should vary depending on the court's

assessment of the gravity of the societal risk involved.

We find no indication that the principles developed in

the emergency situation cases we have heretofore

discussed will be ill suited for addressing cases like

the one before us.

Id. at 1094. Consequently, the Third Circuit held that the

Fourth Amendment applied to a caseworker's search of a home and

search of a child's person and that absent consent or exigent

circumstances, a warrant or court order was required prior to

conducting such a search. Id. The Third Circuit also found that

this case law was well established in 1987 and did not grant the

caseworker or police officer qualified immunity.

The Good case remains good law and has not been overruled in

this Circuit. This case law was well established in 2006 when

the search at issue here took place. Though there are some

factual differences between this matter and the Good case, the

Good case corresponds substantially to the issues raised here and

should have been known by the Defendants. While JB1 and JB2 were

not strip searched, the search of Plaintiffs' home took place at

1 A.M. in contrast with Good's 10 P.M. time and the search was

not prompted by any allegations of child abuse. Good clearly

established that a warrantless search of a home cannot be

conducted by a social worker absent consent or exigent

38
circumstances. It would be clear to a reasonable officer in 2006 6

that the limitations of the Fourth Amendment applied to the

search of the Bostrom home.

The remaining issue before the Court is "whether it would be

clear to a reasonable officer that his conduct was unlawful in

the situation he confronted." Saucier, 533 U.S. at 201-02.

In this case, the Defendants argue that qualified immunity

is appropriate because the decision to search Plaintiffs' home at

1:00 AM was made by Schuh and Broglin's on-call supervisor,

Joanne Fadool, who is not a defendant in this case. This

decision was made pursuant to an unwritten DYFS policy that a

home must be searched when Dodd removal papers are served when

other minor children reside at the residence. Consequently,

Defendants assert that a reasonable caseworker in Schuh and

Broglin's position would have searched Plaintiffs' home at 1:00

AM and would not have known such a search violated the Fourth

Amendment.

This argument ignores several key facts. First, A.B., at

the time she was removed, was a run away who previously resided

at a DYFS facility. She did not run away from the Plaintiffs'

residence and there was no evidence that the Plaintiffs'

residence was unsafe. The record contains no indication that

 Further, the Court notes that the Defendants do not argue 6

that any other exceptions to the warrant requirement apply to

this case aside from consent and exigent circumstances.

39
A.B. was abused or neglected in the Bostrom residence. A.B. was

not being physically removed from Plaintiffs' residence at the

time the Dodd papers were served, so the rationale behind the

automatic search of the residence to protect the remaining minor

children was absent.

Further, A.B. had a prior history with DYFS and court orders

were issued regarding A.B.'s placement in foster facilities for

over two years. The information from these orders should have

been present on the computer system. Schuh was also the

caseworker on A.B.'s case for more than a year and was the

current supervisor on A.B.'s case at the time of the incident. 

While Joanne Fadool ultimately gave the approval for Schuh

and Broglin to search Plaintiffs' residence, this approval was

given after a haphazard investigation by Broglin and Schuh into

the custody of A.B., which failed to detect the numerous

indications that DYFS had custody of A.B. for over two years

because of A.B.'s inability to live in the Bostrom home as well

as her threats to the younger children. The central issue is not

whether a reasonable officer would have searched Plaintiffs' home

after getting approval by a supervisor. The central issue is

whether a reasonable caseworker would searched the Bostrom home

and the children residing there in the way Broglin and Schuh did

in the absence of exigent circumstances or consent. That their

incomplete investigation led to a complete misrepresentation of

40
A.B.'s custody status to the supervisor who authorized the search

compounds this series of errors and omissions obscuring the fact

that DYFS itself had custody of A.B. We are not assessing

conduct of a state actor, for example, who is trying to get

accurate information from another agency as to, for example, the

existence of an arrest warrant where the similar name in a

warrant database is confused with the name of the innocent

arrestee. In such a situation, a reasonable officer may rely

upon a law enforcement database in making an arrest that turns

out to be a misidentification. See Arizona v. Evans, 514 U.S. 1

(1995)(holding that exclusionary rule did not apply to bar

admission of evidence that was seized due to police officer's

objective reasonable reliance on erroneous entry on computer

system by court clerk) and Herring v. U.S., 555 U.S. 135, 146

(2009)("If the police have been shown to be reckless in

maintaining a warrant system, or to have knowingly made false

entries to lay the groundwork for future false arrests, exclusion

would certainly be justified under our cases should such

misconduct cause a Fourth Amendment violation.").

Viewing the facts in the light most favorable to the

Plaintiffs, qualified immunity as to Schuh and Broglin should be

denied. Schuh initially determined that Plaintiffs had custody

of A.B. by doing a computer search. Schuh did not check the

Plaintiffs' file and did not contact the Plaintiffs' caseworker,

41
Shakeiya Cuff, to determine custody, even after Mrs. Bostrom

informed her that A.B. was in DYFS' own custody. While there is

an issue of fact as to whether the file was in the Bridgeton

Office at the time of the incident, the court must view the facts

in favor of the Plaintiff for this analysis. Cuff testified that

the file was indeed in her desk and therefore, the Court must

assume the file was in the Bridgeton office readily available to

Schuh at the time of the incident for purposes of this analysis.

Schuh then told Broglin that Plaintiffs had custody of A.B. 

Broglin then talked to the Plaintiffs who denied they had custody

of A.B. and truthfully informed Broglin that DYFS had custody. 

Plaintiffs also correctly told Broglin that A.B. was a danger to

their two other minor children and suffered from mental health

issues. Broglin then transferred the call to Schuh and

Plaintiffs reiterated to Schuh that they did not have custody of

A.B. Apparently, Schuh's knowledge of A.B. being in DYFS custody

for the past two years was not recalled. Schuh refused to listen

to Plaintiffs and threatened Plaintiffs with a search of their

home and their two minor children if they did not permit A.B. to

return home. 

Schuh and Broglin did not engage in any further viewing of

DYFS records nor did they consult with A.B.'s caseworker to

determine custody of A.B. after speaking with the Plaintiffs. 

Instead, they chose to rely solely on Schuh's previous search of

42
the computer system regarding A.B.'s custody, despite knowing

that the database is often incomplete or out of date. 

There is a strong argument that no reasonable officer in

Schuh and Broglin's position would have relied solely on the

computer inquiry to determine A.B.'s custody status, especially

if that database was as outdated and incorrect as it appears to

be here. In particular, Plaintiffs expressed to Schuh and

Broglin that A.B. was a danger to the other minor children in

their home and that a court order was issued preventing A.B. from

returning to the residence. That was true and DYFS had the

correct information available to Schuh and Broglin. No

reasonable caseworker would have believed that entering and

searching the Bostrom's residence without consent could be

justified by exigent circumstances and thus permitted by the

Fourth Amendment. 

It is pivotal that there were no exigent circumstances that

required Schuh and Broglin to rush to judgment about A.B.'s

custody. A.B. was already placed in a foster home for the

evening. There was no allegation that JB1 and JB2 were in

danger. A reasonable caseworker would have contacted the

caseworker on A.B.'s case to discuss the situation. A reasonable

caseworker also would have searched for the physical file. A

reasonable caseworker would have reviewed A.B.'s history in the

DYFS records and seen that several court orders relating to

43
custody of A.B. were issued. A reasonable caseworker would have

looked into the previous placement of A.B. and realized that A.B.

had not resided at Plaintiffs' home for over two years. This

would have led a reasonable caseworker to conclude, at minimum,

that there was a genuine issue with regard to whether DYFS or

Plaintiffs had custody of A.B. and that further information was

necessary to determine whether a Dodd removal was even pertinent. 

Indeed, just a few hours into the next working day, DYFS

acknowledged that no Dodd removal was pertinent, since the

Bostroms were correct that they did not have custody of A.B. 

In short, no reasonable case worker in Defendants' position

would have believed that a search of this residence, absent

consent or exigent circumstances to protect a child's safety, was

permitted by the Fourth Amendment.

Instead, Schuh and Broglin threatened Plaintiffs with a

search of their home and children prior to speaking to any

supervisor. Schuh and Broglin then failed to investigate any of

Plaintiffs' claims regarding custody of A.B. or the safety of

their other minor children if A.B. were allowed back into the

home. 

If the evidence proffered by Plaintiffs is accepted by the

jury, this Fourth Amendment violation was beyond negligent as

Schuh and Broglin made no attempt to investigate the veracity of

Plaintiffs' allegation or determine whether there was any reason

44
to fear for the well-being of the minor children in Plaintiffs'

home. Schuh and Broglin's rushed actions were not the result of

exigent circumstances, or a reasonable belief that the minor

children were in danger, or a simple mistake in the computer

system but were the product of deliberate choices to conduct an

incomplete investigation to resolve the issue quickly rather than

correctly to conduct a warrantless search of the home. The Court

finds that no reasonable officer in the position of Schuh and

Broglin would have believed their actions in conducting a

warrantless search of the home were proper in the absence of

consent or particularized fears for the safety of the minor

children residing therein. Saucier, 533 U.S. at 201. 

On the other hand, Torres and McCloy are entitled to

qualified immunity. As discussed above, they did no independent

investigation as to whether a search was necessary and relied

solely on Broglin and Schuh. Their mission was to assure the

safety of the social workers. This was the policy of human

services officers at the time of the incident and therefore a

reasonable officer in McCloy and Torres' position could have

committed the violation. Torres and McCloy reasonably believed

that Schuh and Broglin feared for their safety and this was a

sufficient reason for Torres and McCloy to accompany them on the

search. A reasonable officer in their position would have done

the same. Therefore, McCloy and Torres are entitled to qualified

45
immunity with regard to Plaintiffs' Fourth Amendment claims.

Accordingly, the Fourth Amendment claims against McCloy and

Torres will be dismissed. However, summary judgment will be

denied as to Plaintiffs' Fourth Amendment claims against Schuh

and Broglin.

B. Fourteenth Amendment Claims (Counts I and II)

Defendants argue summary judgment is appropriate to dismiss

Plaintiffs' substantive and procedural due process claims. 

First, Defendants argue that these claims are duplicative of

Plaintiffs' Fourth Amendment claims and should be dismissed. 

Second, Defendants argue that their conduct does not rise to the

shocks the conscience standard required for substantive due

process claims. Further, Defendants maintain that JB1 and JB2

were not removed from Plaintiffs' custody so no right to familial

integrity was violated. Finally, Defendants argue that

Plaintiffs were not deprived of any protected interest and were

given adequate process so their procedural due process claim

should be dismissed.

1. Substantive Due Process Claim

The Supreme Court has held that all claims arising under §

1983 arising from an unreasonable search and seizure be dealt

with exclusively under the Fourth Amendment rather than

substantive due process. Graham v. Connor, 490 U.S. at 395;

Albright v. Oliver, 510 U.S. 266 (1994). "Where a particular

46
Amendment provides an explicit textual source of constitutional

protection against a particular sort of government behavior, that

Amendment, not the more generalized notion of substantive due

process, must be the guide for analyzing the claims." Albright,

510 U.S. at 273. 

Here, Plaintiffs' substantive due process claim for

violation of their right to familial integrity is based on the

same facts which form their Fourth Amendment claim. The

Plaintiffs' substantive due process claim for violation of the

right to familial integrity arises solely from Defendants' search

of their home. Consequently, Plaintiffs' substantive due process

claim should be dismissed and the matter should be analyzed under

the Fourth Amendment. 

2. Procedural Due Process Claim

In order to establish a claim for deprivation of procedural

due process rights under Section 1983, a plaintiff must show (1)

that he was deprived an individual interest of liberty or

property encompassed within the Fourteenth Amendment; and (2) the

procedures used by the state to effect this deprivation were

constitutionally inadequate. Hill v. Borough of Kutztown, 455

F.3d 225, 234 (3d Cir. 2006). 

Here, the Plaintiffs allege they were deprived of their

liberty interest in being free from unreasonable searches,

retaliation and interference with their right to family

47
integrity. The violation of these rights all stem from the

search conducted by Defendants which is squarely addressed by the

Fourth Amendment. The Plaintiffs were not deprived of custody of

A.B., as DYFS already had custody. JB1 and JB2 were not removed

from the home. The retaliation claim is addressed by the First

Amendment, discussed in Section IV.C, below. The unreasonable

search is addressed by the Fourth Amendment in Section IV.A,

above. Consequently, the Plaintiffs have not alleged that they

were deprived for a liberty or property interest which is not

already addressed by Plaintiffs' First and Fourth Amendment

claims. If the court were to find that the Plaintiffs have

established a deprivation of liberty on these facts, then all

unreasonable searches would constitute procedural due process

claims. This would be impractical and duplicative.

The Plaintiffs' argument that their ongoing medical bills

for psychological treatment as a result of the search constitutes

a deprivation of property is unpersuasive. Plaintiffs' medical

bills are more akin to damages arising out of the Fourth

Amendment violation, not a separate deprivation of property

giving rise to a new constitutional procedural due process claim.

Therefore, the Court will grant summary judgment on

Plaintiffs' procedural due process claims. These claims are

duplicative of Plaintiffs' Fourth Amendment claims and will be

dismissed. 

48
C. First Amendment Claim (Count IV)

Plaintiffs claim Defendants searched their home in

retaliation for Plaintiffs telling Schuh and Broglin that A.B.

could not be returned to their residence. Plaintiffs argue that

Broglin and Schuh did not like being questioned on how to do

their job and as a result, retaliated against them by conducting

an intrusive home search. 

Defendants argue that the Plaintiffs have failed to

establish that they were subject to an adverse action by the

Defendants or that Plaintiffs' speech was a substantial

motivating factor for the search. Defendants argue that the home

search conducted in this case would not have deterred a person of

ordinary firmness from exercising their free speech rights. 

Defendants also argue that the Plaintiffs' speech was not a major

purpose behind the home safety inspection. Defendants further

argue that JB1 and JB2 do not have standing to bring these claims

as they did not engage in any protected speech. Finally,

Defendants assert they are entitled to qualified immunity because

any such right was not clearly established by precedent.

1. Analysis

To state a First Amendment retaliation claim, a plaintiff

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

49
causal link between the constitutionally protected conduct and

the retaliatory action. Thomas v. Independence Twp., 463 F.3d

285, 296 (3d Cir. 2006).

As an initial matter, the Plaintiffs do not allege that they

engaged in protected speech with McCloy and Torres. On the

record before the court, there is no basis for First Amendment

claims against McCloy and Torres and summary judgment will be

granted for McCloy and Torres as to these claims.

The Defendants do not dispute that Plaintiffs' comments to

Defendants Schuh and Broglin regarding custody of A.B. were

protected speech under the First Amendment. The main issues are

whether the second and third elements are met.

A rational factfinder could conclude that a search of a

person's home at 1:00 AM is sufficient to deter a person of

ordinary firmness from engaging in protected speech. The late

hour of this search is particularly intrusive, especially

considering that three members of the household, two of whom were

minor children, were asleep. A factfinder could conclude that

this type of invasive search would deter a person of ordinary

firmness from speaking openly to DYFS caseworkers.

The third element is a closer question. "If the defendant

is able to show by a preponderance of evidence that the same

decision would have been made had the protected conduct not

played a substantial role, no relief will be required" under the

50
First Amendment. Suppan v. Dadonna, 203 F.3d 228, 236 (3d Cir.

2000). The Defendants argue that the decision to search the home

was ultimately made by their supervisor, Joanne Fadool, who had

no knowledge of the conversation between Broglin and the

Plaintiffs. In addition, Defendants argue that search was

conducted pursuant to DYFS policy and would have happened

regardless of Plaintiffs' speech. 

There is evidence that Schuh and Broglin threatened to

search Plaintiffs' home while they were on the phone with the

Plaintiffs and before speaking to their supervisor, Fadool. It

is unclear what was said to Fadool or why Fadool permitted the

search to occur as Fadool's testimony is not in the record. 

Without Fadool's testimony, the Court cannot conclude as a matter

of law that the search would have occurred regardless of

Plaintiffs' comments to Schuh and Broglin regarding custody of

A.B. Further, without Fadool's testimony, the court cannot

conclude that Fadool had no knowledge of the conversation between

Broglin and the Plaintiffs. 

As far as DYFS policy, this policy was not produced in

discovery and is evidenced only by Schuh and Broglin's testimony. 

Further, as explained in the Fourth Amendment analysis, exigent

circumstances did not exist justifying the search. Since Schuh

and Broglin testified that they had no evidence that a minor was

in danger, whether A.B., JB1 or JB2, their invocation of this

51
unwritten DYFS policy is questionable. A rational factfinder

could conclude that this policy was not implicated by the

circumstances of this case since no minor was in danger from the

Plaintiffs. 

Therefore, genuine issues of material fact exist which

preclude summary judgment as to the Plaintiffs First Amendment

claims against Schuh and Broglin.

2. Qualified Immunity

As explained above in Subsection III.B.4., qualified

immunity is a two part analysis: First, "the officer's conduct

violated a constitutional right," and second, whether any such

constitutional right was "clearly established," and in

particular, "whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted." 

Saucier v. Katz, 533 U.S. at 201-02. Specifically, a court must

focus on whether the particular application of law under the

circumstances confronting the officer were well established by

precedent, Ashcroft v. Al-Kidd, 131 S. Ct. at 2084-85. 

Even if one assumes Plaintiffs have pled retaliation by

Broglin and Schuh for the exercise of free speech rights, this

court cannot find that any such right was well established such

that these defendants should have known their conduct was

unlawful under the First Amendment. In this case, the Plaintiff

has pointed to no established case law finding a First Amendment

52
retaliation claim under factual circumstances that correspond

even remotely to the instant matter and the Court has found none. 

Therefore, while a violation of Plaintiffs' First Amendment

rights may have occurred, Defendants Broglin and Schuh are

entitled to qualified immunity as it was not clearly established

that their conduct was unlawful. Accordingly, Defendants Broglin

and Schuh will be granted summary judgment as to Plaintiffs'

First Amendment claim.7

D. Injunctive Relief (Count V)

In order to establish a claim for injunctive relief in a

federal forum, a plaintiff must show that he or she is likely to

suffer future injury from the defendant's illegal conduct. As

the Supreme Court has stated, "Past exposure to illegal conduct

does not in itself show a present case or controversy regarding

injunctive relief . . . if unaccompanied by any continuing,

present adverse effects." City of Los Angeles v. Lyons, 461 U.S.

95, 102 (1983). Importantly, there must be "a showing of any

real or immediate threat that the plaintiff will be wronged again

- a likelihood of substantial and immediate irreparable injury." 

Lyons, 461 U.S. at 111. Finally, the relief requested must be

able to redress the continuing adverse affects. 

In this case, there is no evidence that Plaintiffs will be

 In light of the finding of qualified immunity, it is 7

unnecessary to resolve whether the minor plaintiffs JB1 and JB2

lack standing to bring this First Amendment retaliation claim.

53
subject to future harm by Defendants Schuh, Broglin, Torres or

McCloy. A.B. and JB1 are no longer minor children and are

outside the purview of DYFS. There is no evidence that Schuh,

Broglin, Torres or McCloy are assigned to any casework involving

Plaintiffs. The Plaintiffs vaguely allege that Defendants could

continue to harass and intimidate Plaintiffs without just cause. 

This vague statement is based purely on speculation and is

contradicted by the record which is silent as to any untoward

acts directed at the Bostroms after the evening at issue in

December, 2006. 

Plaintiffs allege they continue to suffer psychological

injury as a result of the search of their home. This can be

compensated through a damages award and would not be redressed by

injunctive relief against the Defendants.

Therefore, summary judgment shall be granted denying

Plaintiffs' claims for injunctive relief.

IV. PLAINTIFFS' MOTION TO STRIKE PORTIONS OF REPLY [Docket Item

55]

After the Defendants filed their reply, the Plaintiffs filed

a motion for leave to file a sur-reply and/or strike portions of

Defendants' reply. [Docket Item 55.] The Plaintiffs also

expressed concern with Defendants e-filing their exhibits and

request that these exhibits containing private information

regarding child abuse investigations remain under seal. The

54
Defendants have not filed opposition to this motion. For the

reasons discussed below, the Court will grant Plaintiffs' motion

to strike portions of the reply. In addition, the Court notes

that the exhibits filed electronically were in fact filed under

seal and are not subject to public viewing. 

Defendants' reply contains two troubling sections that the

Plaintiffs object to and should be stricken. First, instead of

responding to Plaintiffs' 56.1 counter statement of material

facts, the Defendants submitted a second 56.1 statement

containing new facts which were not presented in the Defendants'

moving papers. This is procedurally inappropriate and not

permitted by L. Civ. R. 56.1. Therefore, Plaintiffs' motion to

strike this portion of Defendants' reply will be granted.

Second, Defendants dedicate the first nine pages of their

reply brief to arguing that the State is immune from liability

under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq. 

First, this legal argument was not raised in the moving papers

and was brought up for the first time in the reply brief. 

Second, and more important, is that immunity under the New Jersey

Tort Claims Act is entirely irrelevant to the instant suit which

was brought pursuant to Section 1983 and alleges constitutional

violations, not tortious conduct, committed by the State

Defendants. 

Generally, a state statute cannot immunize government

55
employees from liability resulting from their violation of

federal law. Good v. Dauphin County Social Services for Children

and Youth, 891 F.2d at 1091; Wade v. City of Pittsburgh, 765 F.3d

405, 407-408 (3d Cir. 1985). As applied to the present case, it

is well established that the New Jersey Tort Claims Act provides

no immunity to public officers sued under federal law. The New

Jersey Supreme Court has emphasized "that whatever the immunity

conferred by the [New Jersey Tort Claims] Act, public entities

and law enforcement personnel should understand that federal

liability under section 1983 may exist, even if inconsistent with

the Act, and if it does, the Act provides no immunity from the

federal claim." Tice v. Cramer, 133 N.J. 347, 375 (1993). See

also Figueroa v. City of Camden, No. 09-4343, 2012 U.S. Dist.

LEXIS 121963, at *19 (D.N.J. Aug. 28, 2012)(Simandle, J.).

Therefore, as Defendants' belatedly raised New Jersey Tort

Claims Act argument is of no relevance to the instant action

which is brought solely under federal law, this portion of

Defendants' reply will be stricken, and Plaintiffs' motion to

strike is granted. 

If the offending aspects of Defendants' reply are stricken,

there is no need to permit a sur-reply and this aspect of

Plaintiffs' motion will be denied as moot.

56
V. CONCLUSION

For the reasons discussed herein, the Defendants' motion for

summary judgment will be granted in part and denied in part. 

Summary judgment will be granted as to all claims against

Defendants Torres and McCloy and these claims will be dismissed

with prejudice. Summary judgment will also be granted as to

Plaintiffs' Fourteenth Amendment claims and First Amendment

claims against Defendants Schuh and Broglin. Finally, summary

judgment will be granted dismissing Plaintiffs' claim for

injunctive relief.

However, summary judgment will be denied with respect to

Plaintiffs' Fourth Amendment claims against Defendants Schuh and

Broglin, and the motion of Defendants Schuh and Broglin for

qualified immunity on the Fourth Amendment claims will be denied. 

Finally, Plaintiffs' motion to strike portions of

Defendants' reply brief will be granted.

The accompanying Order will be entered.

August 26, 2013 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

Chief U.S. District Judge

57