# LASCHE v. STATE OF NEW JERSEY

> District Court, D. New Jersey · September 26, 2019

URL: https://www.frixlaw.com/law-library/cases/10266826

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** September 26, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10266826

## How later opinions describe it (automated extraction)

- finding unusually suggestive temporal proximity where two days passed between the protected activity and the alleged retaliation
- stating that “[t]he legislative history is replete with references that the [NJ]CRA was intended to provide New Jersey citizens with a state analogue to Section 1983 actions.”

## Opinion text

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
MICHAEL LASCHE and JENNIFER :
LASCHE, :
: Civil Action No.: 18-17552 (FLW)(TJB)
Plaintiffs, :
: OPINION
vs. :
:
STATE OF NEW JERSEY, et al, :
:
Defendants. :
____________________________________:
WOLFSON, Chief Judge:
Plaintiffs Michael and Jennifer Lasche, licensed foster parents, (collectively, “Plaintiffs” or
“Lasches”) allege that Defendants the State of New Jersey, the New Jersey Division of Child
Protection and Permanency (the “DCPP”), DCPP employees Kyle Higgins, Katie Epperly, Mary
Lippencot, Janelle Clark (“Individual Defendants”), in their official and individual capacities
(collectively, “Defendants”), violated their constitutional rights when Defendants removed a foster
child from their home and suspended Plaintiffs’ foster parent license. In the instant matter,
Defendants move to dismiss Plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(1),
based on Eleventh Amendment Sovereign Immunity, and Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim. Plaintiffs oppose the motion.
For the reasons set forth below, Defendants’ Motion to Dismiss is GRANTED, with the right
for Plaintiffs to amend certain claims, as set forth herein.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
For the purposes of this motion, the relevant facts are derived from Plaintiffs’ Complaint and
assumed as true.
In September 2017, the DCPP contacted Plaintiffs, who are “devout Christians who hold
to traditional values and beliefs about family, marriage and sex,” regarding the potential placement

of two foster children. ECF No. 1, Compl. ¶¶1,8. The DCPP informed Plaintiffs that two sisters,
ages 13 (“Foster Child 1”) and 10 (“Foster Child 2”), were in need of a foster home and asked if
Plaintiffs would be willing to care for them. Id. at ¶8. Plaintiffs, experienced foster parents, agreed
to foster the two girls. Id. at ¶¶1,8.
Kyle Higgins (“Higgins”), the DCPP case worker assigned to the foster children, informed
Plaintiffs that the girls’ cases were proceeding toward adoption and that the biological father’s
parental rights had already been terminated. Id. at ¶¶2,9. Throughout October and November
2017, Higgins allegedly advised Plaintiffs that the cases were still moving toward adoption and
that they would be given “first choice” to adopt the girls. Id. at ¶11. During that time period, the
biological mother surrendered her rights and the children became eligible for adoption. Id. At that

time, Plaintiffs were informed that they were still in consideration as adoptive parents. Id. at ¶12.
However, in December 2017, Higgins informed Plaintiffs that a family in Illinois was interested
in adopting Foster Child 1 and 2, as well as their three siblings. Id. at ¶13. When Plaintiffs and
the children asked Higgins, and her supervisor Katie Epperly (“Epperly”), for information about
the prospective adoptive family, they purportedly “claimed not to know the answers.” Id. at ¶14.
Thereafter, during a conversation with the foster parents of Foster Child 1 and 2’s siblings, the
Lasches learned that the potential adoptees “were two wealthy gay men with lots of family around
to support them and the adoption.” Id. at ¶14. Plaintiffs were “baffled” as to why the DCPP
withheld that information from them, but chose to share it with the other foster parents. Id. A few
days later, Higgins allegedly questioned Foster Child 1 about her religious beliefs concerning
homosexuality and asked if her beliefs would change if she were living with another family. Id.
at ¶15.
In April 2018, Foster Child 2 was removed from Plaintiffs’ home “for confidential reasons

unique to Foster Child 2,” pursuant to an agreement between Plaintiffs and the DCPP. Id.
On May 22, 2018, Mrs. Lasche met with Higgins and Foster Child 1’s therapist. Id. at ¶17. At
that meeting, Mrs. Lasche, Higgins, and the therapist agreed not to discuss adoption with Foster
Child 1 for the foreseeable future because it was too soon after Foster Child 2’s removal. Id. They
also discussed the possibility of Foster Child 1 spending additional time with her siblings to
determine if she would like to be adopted by the same family as them, and Mrs. Lasche indicated
that she “was not opposed to letting Foster Child 1 explore that and allowing her to make the
decision without any questions or resentment.” Id. During that meeting, Higgins indicated that a
court hearing would be held on June 4, 2018, and a judge would make a determination as to
whether all of the children should be adopted by their current foster families, or if it would be in

the children’s best interest for the Illinois couple to adopt all five siblings. Id. at ¶18.
The morning of the scheduled court hearing, Plaintiffs purportedly received a text message
from Foster Child 1’s Law Guardian1 informing them that the Illinois couple was “off the table”
and that a New Jersey family court judge had ordered psychiatric evaluations of the five children
before a permanent placement decision was made. Id. at ¶19.

1 The Court takes judicial notice that the Law Guardian Program is a component of the New
Jersey Office of the Public Defender that is responsible for providing legal representation to
children in family court matters involving adoption, allegations of abuse and neglect, and the
termination of parental rights. See New Jersey Office of the Public Defender Structure: Office of
the Law Guardian, https://www.state.nj.us/defender/structure/olg/ (last visited September 10,
2019).
Thereafter, Higgins allegedly contacted Plaintiffs to discuss transitioning Foster Child 1 to
another foster home, where her younger brother resided, and Mrs. Lasche expressed confusion,
because she was under the impression that since the Illinois family was no longer pursuing the
adoption, the DCPP’s intention was to allow each of the siblings to be adopted by their then- foster

families. Id. at ¶21. To obtain more information, Mrs. Lasche contacted Foster Child 1’s Law
Guardian, and the Law Guardian was allegedly surprised and offered to investigate the situation.
Id. at ¶22.
A few weeks later, Foster Child 1 came home from a regularly scheduled therapy session and
informed Plaintiffs that she was upset because her “therapist kept bringing up religion and told her
she should not feel pressured to follow her foster family’s religious beliefs.” Id. at ¶20. On another
occasion, while Foster Child 1’s therapist was at Plaintiffs’ home for a therapy session, Mrs.
Lasche asked the therapist why the therapist had inquired whether Foster Child 1 was “being
pressured” to follow Plaintiffs’ religion.” Id. at ¶23. Initially, the therapist allegedly responded
that “it was normal to discuss how people have different beliefs, ethics, religion, etc.” Id. After

further questioning from Mrs. Lasche, however, the therapist eventually divulged that Higgins had
called before the session and had relayed to the therapist Plaintiffs’ “ideas about same-sex
couples.” Id. Higgins also purportedly asked the therapist to discuss the possibility of relocating
Foster Child 1 to another foster home with her brothers. Id.
On or about June 21, 2018, Higgins picked up Foster Child 1, ostensibly for the purpose of
visiting one of her siblings. Id. at ¶24. Plaintiffs allege that it was “very rare” for Higgins to
transport Foster Child 1 to such visits. Id. While on the way to the visit, Higgins allegedly stopped
at a Dunkin Donuts with Foster Child 1 and informed her that Plaintiffs would not be able to “meet
her needs.” Id. at ¶25. Plaintiffs assert that during the visit, Higgins “interrogated Foster Child 1
about her religious beliefs” and “lied to her in an effort to intimidate her into agreeing that she did
not want to be adopted by Plaintiffs.” Id. at ¶¶24-25.
Upon returning from the visit, Higgins met with Plaintiffs and informed them that the DCPP
intended to meet with them to “work with” Plaintiffs in order to reach a result that was in Foster

Child 1’s best interest. Id. at ¶26. When Plaintiffs inquired about the purpose of the meeting, they
were allegedly informed by Epperly that the DCPP “was concerned that both Foster Child 1 and
Foster Child 2 indicated that same-sex relationships were against their religion,” a belief which
the DCPP regarded as coming from Plaintiffs. Id. at ¶27.
On Friday June 29, 2018, the Lasches, their attorney, an attorney for the State of New Jersey,
Higgins, Epperly, Epperly’s supervisor Mary Lippencott, Janelle Clark, and one or two other
DCPP employees whom Plaintiffs did not identify, attended a meeting at the DCPP’s Monmouth
County Office. Id. at ¶28. During the meeting, the DCPP representatives allegedly expressed
concern about Plaintiffs’ belief that homosexuality is a sin and its potential impact on Foster Child
1. Id. at ¶29. The DCPP officials allegedly discussed the possibility that Plaintiffs might reject

Foster Child 1 if she “decided to explore her sexuality” and sought assurances to the contrary from
Plaintiffs.2 Id. One individual purportedly expressed the belief that in order to avoid possible
future harm, Foster Child 1 might need therapy to address her belief that homosexuality was a sin.
Id.
A few days later, on July 2, 2018, a hearing was held before a New Jersey family court judge,
and the DCPP sought to remove Foster Child 1 from Plaintiffs’ home. Id. at ¶30. Plaintiffs allege
that they were not given notice that they had a right, pursuant to New Jersey law, to be heard at

2 The Complaint does not identify whether such assurances were provided by Plaintiffs or
how Plaintiffs responded to the DCPP’s questioning, if at all.
the hearing. Id. at ¶31. At the hearing, Foster Child 1’s Law Guardian objected to the removal.
Id. Nonetheless, the next day, presumably pursuant to a court order, the DCPP removed Foster
Child 1 from Plaintiffs’ home and Plaintiffs have not seen the child since. Id. at ¶32.
On October 12, 2018, a DCPP representative visited Plaintiffs’ home in order to conduct a

yearly inspection which was necessary for Plaintiffs to renew their foster parent license. Id. at
¶35. The representative asked Plaintiffs if they knew that their foster parent license had been
suspended, and Plaintiffs stated that they were unaware of the suspension. Id. The representative
allegedly informed Plaintiffs that they should have been notified of the suspension and the bases
for the suspension. Id.
On November 19, 2018, Plaintiffs filed a four-count complaint against Defendants in New
Jersey state court, alleging violations of the New Jersey Law Against Discrimination (“NJLAD”),
the New Jersey Civil Rights Act (“NJCRA”), 42 U.S.C §1983, and 42 U.S.C §1985.3 Plaintiffs
allege that the DCPP took retaliatory actions against Plaintiffs’ religious beliefs, violating the first
Amendment of the United States Constitution and the New Jersey Law Against Discrimination.

Id. at ¶¶39-40, 45. Furthermore, Plaintiffs contend that the Individual Defendants removed Foster
Child 1 from Plaintiffs’ home and suspended their foster parent license without giving them notice
and an opportunity to be heard in violation of Plaintiffs’ Fourteenth Amendment rights. Id. at ¶46.
On December 24, 2018, Defendants removed the matter to this Court, and thereafter, filed the
instant motion to dismiss, for lack of subject matter jurisdiction based on sovereign immunity
grounds, and for failure to state a claim. See ECF No. 6, Def. Br.

3 Counts II-IV of Plaintiffs’ complaint combine violations of different constitutional rights
under the same count. It is better practice to separate each alleged constitutional violation in a
different count, for the convenience of both the Court and the litigants when addressing the
potential dismissal or amendment of certain claims.
II. STANDARD OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) permits the Court to dismiss a proceeding for lack
of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). This includes cases where Eleventh

Amendment immunity bars the plaintiff's claims, as the Court of Appeals for the Third Circuit has
noted that “the Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject
matter jurisdiction.” Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2 (3d Cir. 1996)
(citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–100, 1 (1984)).
B. Federal Rule of Civil Procedure 12(b)(6)
In reviewing a motion to dismiss for failure to state a claim upon which relief can be
granted, pursuant to Federal Rule of Civil Procedure 12(b)(6), “courts accept all factual allegations
as true, construe the complaint in the light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (internal quotation marks and citation

omitted). While Federal Rule of Civil Procedure do not require that a complaint contain detailed
factual allegations, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Thus,
to survive a Rule 12(b)(6) motion to dismiss, the Complaint must contain sufficient factual
allegations to raise a plaintiff’s right to relief above the speculative level, so that a claim “is
plausible on its face.” Id. at 570; Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
To determine whether a plaintiff has met the facial plausibility standard mandated by
Twombly and Iqbal, courts within this Circuit engage in a three-step progression. Santiago v.

Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must “outline the elements a
plaintiff must plead to state a claim for relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
Next, the Court “peel[s] away those allegations that are no more than conclusions and thus not
entitled to the assumption of trust. Id. Finally, where “there are well-pleaded factual allegations,
the court should assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.” Iqbal, 556 U.S. at 679.
III. ANALYSIS
A. Eleventh Amendment Sovereign Immunity

As a threshold matter, this Court must determine whether the DCPP, the State of New
Jersey, and the Individual Defendants, sued in their official capacity, may invoke sovereign
immunity. The Eleventh Amendment provides that “[t]he judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against one of
the United States by citizens of another state, or by citizens or subjects of any foreign state.” U.S.
Const. amend. XI. The Amendment affords states and state agencies immunity from suits brought
by citizens in federal court, regardless of whether legal or equitable relief is sought. See Pennhurst
State School & Hosp., 465 U.S. at 89,100-101; see also Thorpe v. New Jersey, 246 F. App’x 86,
87 (3d Cir. 2007) (“The Eleventh Amendment of the U.S. Constitution protects a state or state
agency from a suit brought in federal court by one of its own citizens regardless of the relief sought.
. . .”). Eleventh Amendment immunity also extends to state agencies and departments, such as the
DCPP. Alabama v. Pugh, 438 U.S. 781, 781 (1978); Pa. Fed’n of Sportsmen’s Clubs, Inc. v.
Hess, 297 F.3d 310, 323 (3d. Cir. 2002); Chisolm v. McManimon, 275 F.3d 315, 323 (3d Cir.
2001). The Third Circuit has long held that the DCPP, formerly known as DYFS, is an arm of the
state for sovereign immunity purposes. Howard v. N.J. Div. of Youth & Family Servs., 398 F.

App’x 807, 811-12 (3d Cir. 2010) (“DYFS is immune from suit under the Eleventh Amendment”);
Rich v. New Jersey, No. 14-2075, 2015 WL2226029, at *7 (D.N.J. May 12, 2015) (“[New Jersey
Department of Children and Families] is an arm of the state for sovereign immunity purposes.”).
Officers employed by DCPP, sued in their official capacity, are also entitled to immunity under
the Eleventh Amendment when sued for money damages. Id.
However, “[a] state may waive its immunity from suit by invoking federal court
jurisdiction voluntarily.” Lombardo v. Pa. Dep’t. of Pub. Welfare, 540 F.3d 190, 198 (3d Cir.
2008). By voluntarily invoking federal court jurisdiction, such as by removing a case from state
court, the State “waives [its] immunity from suit in a federal forum.” Id. at 198. However, “the
removing State retains all defenses it would have enjoyed had the matter been litigated in state

court, including immunity from liability” Id. at 200. Furthermore, under the Ex Parte Young
doctrine, Eleventh Amendment immunity is waived when officers of a state are sued for
prospective injunctive relief to end an ongoing violation of federal law. Pa Fed'n of Sportsmen's
Clubs, Inc., 297 F.3d at 323; see also Ex Parte Young, 209 U.S. 123, 159-60 (1908). In order for
the Ex Parte Young exception to be applicable, “[t]he relief sought must be prospective,
declaratory, or injunctive relief governing an officer’s future conduct and cannot be retrospective,
such as money damages.” MCI Telecomm. Corp. v. Bell Atl. Pa., 271 F.3d 491, 506 (3d Cir. 2001).
To determine whether application of the doctrine is appropriate, “a court need only conduct a
straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective.” Pa. Fed'n of Sportsmen's Clubs, Inc., 297
F.3d at 323 (quoting Verizon Maryland, Inc. v. Public Service Commission of Maryland, 5353 U.S.
635, 645 (2002)).
Here, the doctrine of sovereign immunity does not bar this Court from hearing this case.

While sovereign immunity can operate as a bar to jurisdiction, “voluntary removal waives a State’s
immunity from suit in a federal forum.” Lombardo, 540 F.3d at 198. Although the State, the
DCPP, and the Individual Defendants, in their official capacities, would generally be entitled to
immunity in this context, Defendants removed this matter from state to federal court and
voluntarily invoked the jurisdiction of this Court in the process. 4 Accordingly, this Court has
subject matter jurisdiction over the instant action. However, Defendants’ removal waives only
sovereign immunity from suit; they retain any state sovereign immunity affirmative defenses
which would be available to them under New Jersey state law. Furthermore, to the extent Plaintiffs
seek injunctive relief – in the form of reinstatement of their foster parent license5 – against state
officials, such claims would fall within the Ex Parte Young exception.

4 Although Defendants raised sovereign immunity as a basis for dismissal in their moving
brief, in their reply brief, they concede that “defendants have waived immunity from suit in this
court as to Plaintiffs’ claims.” See ECF No. 13, Def. Reply Br. at 3.

5 On each count of their complaint, Plaintiffs seek “injunctive relief, damages, punitive
damages, attorney fees and costs of suit” without clarifying the specific injunctive relief sought.
See generally Pl. Compl. However, Plaintiffs’ briefing avers that they are “not seeking to overturn
any determinations made regarding the Foster Child . . . . The injunctive relief that the [Plaintiffs]
seek is to be re-instated as Foster Parents and to participate in the system going forward without
being subject to religious discrimination and prejudice by the employees of the [DCPP].” See Pl.
Br. at 3. Accordingly, Plaintiffs’ Complaint seeks to remedy an “ongoing violation of federal law
and seeks relief properly characterized as prospective” as required by the Ex Parte Young
exception. Pa. Fed’n of Sportsmen's Clubs, Inc., 297 F.3d at 323.
Although Eleventh Amendment sovereign immunity does not prevent this Court from
exercising subject matter jurisdiction over the present case, nonetheless, Plaintiffs’ NJCRA claims
against the State of New Jersey, the DCPP, and the Individual Defendants in their official capacity,
and Plaintiffs’ Section 1983 and Section 1985 claims against the Individual Defendants in their
official capacity, must be dismissed, because those defendants are immune from liability.6 See

Lombardo, 540 F.3d at 194 (“We can discern two distinct types of state sovereign immunity:
immunity from suit in federal court and immunity from liability.”).
Both Section 1983 and the NJCRA provide a plaintiff with a cause of action for certain
violations of constitutional rights, under the Federal and state constitutions, respectively. Section
1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding
for redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable.

42 U.S.C §1983. To state a claim under Section 1983, a plaintiff must allege the violation of a
right secured by the Constitution or laws of the United States and that the alleged deprivation was
committed or caused by a person acting under color of state law. See Harvey v. Plains Twp. Police
Dep’t, 635 F.3d 606, 609 (3d Cir. 2011); see also West v. Atkins, 487 U.S. 42, 48 (1988).
Similarly, the NJCRA provides:

6 Although Plaintiffs have alleged an NJCRA claim against all Defendants, see Compl.,
¶42, Plaintiffs’ Section 1983 and Section 1985 claims are only against the Individual Defendants,
in both their official and individual capacities, see Compl. ¶¶44-46, 50.
Any person who has been deprived of any substantive due process
or equal protection rights, privileges or immunities secured by the
Constitution or laws of the United States, or any substantive rights,
privileges or immunities secured by the Constitution or laws of this
State, or whose exercise or enjoyment of those substantive rights,
privileges or immunities has been interfered with or attempted to
be interfered with, by threats, intimidation or coercion by a person
acting under color of law, may bring a civil action for damages and
for injunctive or other appropriate relief.

N.J. Stat. Ann. § 10:6-2(c). To establish an NJCRA violation, a plaintiff must show that (1) the
New Jersey Constitution or laws of New Jersey conferred a substantive right; (2) the defendant
deprived the plaintiff of this right; and (3) the defendant was acting under color of law when doing
so. Tumpson v. Farina, 95 A.d3 210, 223 (N.J. 2014). However, the NJCRA “is interpreted as
analogous to § 1983.” Szemple v. Corr. Med. Servs., Inc., 493 F. App’x 238, 241 (3d Cir. 2012);
Ianuale v. Borough of Keyport, No. 16-9147, 2018 WL 5005005, at *11 (D.N.J. Oct. 16, 2018)
(“The NJCRA was modeled after § 1983, and, thus, courts in New Jersey have consistently looked
at claims under the NJCRA “through the lens of § 1983.”); Perez v. Zagami, 94 A.3d 869, 877
(N.J. 2014) (stating that “[t]he legislative history is replete with references that the [NJ]CRA was
intended to provide New Jersey citizens with a state analogue to Section 1983 actions.”).
Neither the State, the DCPP, or the Individual Defendants are “persons” in their official
capacity. It is well-established that both the state itself, and an arm of the state, such as a state
agency like the DCPP, are not “persons” for purposes of Section 1983. See Will v. Mich. Dept. of
State Police, 491 U.S. 58, 71(1989)(“We hold that neither a State nor its officials acting in their
official capacities are ‘persons’ under §1983”); Indep. Enterprises Inc. v. Pittsburgh Water &
Sewer Auth., 103 F.3d 1165, 1173 (3d Cir. 1997)(“the most important inquiry in determining
whether a governmental entity is a ‘person’ within the meaning of § 1983 is whether the entity is
an ‘arm[ ] of the State’ for Eleventh Amendment purposes’”(quoting Will, 491 U.S. at 70)).
Similarly, because the NJCRA is analogous to Section 1983, none of the Defendants are a
“person” under the NJCRA. See Didiano v. Balicki, 488 F. App’x 634, 638 (3d Cir. 2012) (holding
that “[n]othing in the language or subject matter of the NJCRA compels [the] conclusion that the
State is a person.”); Brown v. State, 124 A.3d 243, 55 (N.J. App. Div. 2015)(“likewise, because

the State is not a ‘person’ under the Civil Rights Act, it is equally immune from suits from damages
as it is for suits seeking injunctions and other equitable relief”), rev’d on other grounds, 165 A.3d
735 (2017). Thus, the NJCRA and Section 1983 claims against the State, the DCPP, and the DCPP
employees acting in their official capacity are dismissed with prejudice because they are not
“persons” within the meaning of either civil rights statute.
However, Plaintiffs have also alleged civil rights claims against the DCPP employees
acting in their individual capacity. Those claims are not precluded by sovereign immunity, as state
employees, agents or officials, when sued in their individual capacities are “persons” within the
meaning of Section 1983 and the NJCRA. Hafer v. Melo, 502 U.S. 21, 31 (1991)(“the Eleventh
Amendment does not erect a barrier against suits to impose ‘individual and personal liability’ on

state officials under § 1983”).
B. Failure to State a Claim
Plaintiffs’ NJLAD claim is the sole remaining claim against the State, the DCPP, and the
Individual Defendants, in their official capacity. Plaintiffs also assert following four claims against
the Individual Defendants in their personal capacities: (1) violations of the NJLAD as a result of
the Individual Defendants “deny[ing] Plaintiffs the ability to adopt/and or foster a child because
of Plaintiffs’ religious beliefs,” Compl. ¶39; (2) violations of the NJCRA; and (3) violations of
Section 1983 and Section 1985 based on the infringement of Plaintiffs’ First and Fourteenth
Amendment rights.
Defendants have moved to dismiss those claims for failure to state a claim. Further, the
Individual Defendants have also raised the doctrines of absolute and qualified immunity as a
defense to Plaintiffs’ claims.
i. Absolute Immunity

State officials, sued in their individual capacities, may assert the defense of absolute
immunity. Here, the Individual Defendants have asserted that they are entitled to absolute
prosecutorial immunity with respect to all of Plaintiffs’ claims.
Prosecutorial immunity is a form of immunity applicable to officials “functioning as
integral parts of the judicial process.” McArdle v. Tronetti, 961 F.2d 1083, 1084 (3d Cir. 1992).
Absolute immunity depends on whether the challenged “actions [are] ‘intimately associated with
the judicial phase of the criminal process.’” Burns v. Reed, 500 U.S. 478, 486 (1991) (quoting
Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). “[T]he official seeking absolute immunity bears
the burden of showing that such immunity is justified for the function in question.” Id. at 486.
The Third Circuit has previously addressed the scope of absolute immunity in the context

of government social workers involved in child removal actions on two occasions. See Ernst v.
Child & Youth Servs. of Chester Cty., 108 F.3d 486, 488–89 (3d Cir. 1997)(holding that “child
welfare workers and attorneys who prosecute dependency actions on behalf of the state are entitled
to absolute immunity from suit for all of their actions in preparing for and prosecuting such
dependency proceedings”); B.S. v. Somerset Cty., 704 F.3d 250, 256 (3d Cir. 2013)(holding that
state child welfare caseworkers are “absolutely immun[e] ... from liability with respect to their
actions on behalf of the state in preparing for, initiating, and prosecuting dependency
proceedings”).
In B.S., a mother sued DYFS employees who removed her child from her home pursuant
to a family court order, and proceeded with an investigation of alleged child abuse. 704 F.3d at
265. In determining whether the DYFS employees were entitled to absolute immunity, the Third
Circuit examined the actions taken by the social workers which gave rise to each of the plaintiff’s

claims, and determined whether those acts were prosecutorial in nature. Id. at 265-69. The court
found that the actions underlying the plaintiff’s procedural due process claim stemmed from the
social workers’ “solicitation of information from [the child’s] doctor and the compilation of her
findings into an abuse report” prior to the judicial proceeding, and thus, such actions “were
fundamentally prosecutorial.” Id. at 266. Turning to plaintiff’s substantive due process claims,
the court examined whether the social worker’s investigation and child abuse report, after the
initial removal proceeding could be considered legal advoacy. Id. at 269-270. The court noted
that typically, “investigating potential child abuse and preparing a report required under state law
does not approximate legal advocacy,” however, in the case before it “the further investigation that
[the social worker] undertook after [the removal order], and the subsequent [abuse] report that [the

social worker] filed, were part of an ongoing judicial proceeding throughout which she served as
an advocate for the state.” Id. at 269. Therefore, the social worker was entitled to absolute
immunity with respect to the Plaintiff’s substantive due process claims, as well. Id.
Based on the foregoing, in determining whether absolute immunity applies, I must assess
whether the DCPP employees “‘function[ed] as the state’s advocate when performing the
action(s)’ that gave rise to the due process violations [plaintiff] seeks to redress, or whether those
claims instead arose from unprotected ‘administrative or investigatory actions.’” B.S., 704 F.3d at
265 (quoting Odd v. Malone, 538 F.3d 202, 208 (3d Cir. 2008)). “The key to the absolute immunity
determination is not the timing of the investigation relative to a judicial proceeding, but rather the
underlying function that the investigation serves and the role the caseworker occupies in carrying
it out.” B.S., 704 F.3d at 270.
Here, Plaintiffs’ claims are premised on two distinct factual allegations: 1) the Individual
Defendants’ investigation of Foster Child 1’s beliefs on homosexuality and the removal of Foster

Child 1 and 2) the Individual Defendants’ suspension of Plaintiffs’ foster parent license based on
their alleged hostility towards Plaintiffs’ religious beliefs. It is not clear, at this juncture, that the
Individual Defendants are entitled to absolute immunity for either set of actions.
Unlike in B.S. and Ernst, it is not clear whether the Individual Defendants’ roles in
removing Foster Child 1 fell within the scope of their duties as “state advocates.” Based on the
Complaint, the Individual Defendants’ actions involved collecting information regarding
Plaintiffs’ views on homosexuality and the potential impact of these views on Foster Child 1,
formulating a recommendation, and presenting that information to the New Jersey Family Court
for the judge to make a placement determination. However, the precise nature of the DCPP
employees’ role when they first met with the Lasches and Foster Child 1 is not clear from the face

of the Complaint. Indeed, the Complaint is silent as to whether the meeting took place in
connection with a family court removal proceeding or whether the Individual Defendants were
acting in an administrative capacity. Although the process culminated in a proceeding before the
New Jersey Family Court, it does not appear that the DCPP employees were “preparing for,
initiating, [or] prosecuting [the removal] proceedings” when they initially began questioning
Foster Child 1 regarding her views on homosexuality. Ernst, 108 F.3d at 495. Rather, those
meetings likely fell within the scope of the social workers’ administrative functions, as part and
parcel of their daily workload.
Similarly, it is unclear what role, if any, the Individual Defendants played in the suspension
of Plaintiffs’ foster parent license. The Complaint is devoid of facts indicating the process by
which Plaintiffs’ foster parent license was suspended, such as whether the suspension occurred as
part of a judicial proceeding, so that the Individual Defendants could be said to have been acting

in a prosecutorial capacity.
At this juncture, based on the pleadings, the Court cannot rule with certainty that the
Individual Defendants are entitled to absolute immunity on any of Plaintiffs’ claims. This defense
is more appropriately raised in a summary judgment motion.
ii. Plaintiffs’ Fourteenth Amendment Claims
It appears Plaintiffs’ Complaint alleges violations of both the Equal Protection and the Due
Process clauses of the Fourteenth Amendment. Specifically Plaintiffs allege the following:
Defendants “deprived the Plaintiffs of their substantive due process, equal protection rights,
privileges or immunities secured by the Constitution,” Compl. ¶42; “the individual Defendants
took actions adversely affecting the Plaintiffs without giving them notice and an opportunity to be
heard in violation of Plaintiffs’ rights pursuant to the 14th Amendment to the Constitution,” Id. at

¶46; “Plaintiffs have a constitutionally protectable interest in Foster Child 1 . . . and that interest
was arbitrarily denied them in violation of the 5th and 14th Amendments to the Constitution,” Id.
at ¶47; and “[t]he individual Defendants conspired for the purpose of depriving Plaintiffs . . . the
equal protection of the laws, and/or of the equal privileges and immunities under the laws . . . . As
a result of said conspiracy Plaintiffs have been deprived of having and exercising the rights or
privilege of a citizen of the United States, granted pursuant to the 1st, 5th and 14th Amendment. ”
Id. at ¶¶50-51.
However, Plaintiffs’ briefing addresses only the First Amendment violation and the denial
of procedural due process, without expanding on the alleged Equal Protection violation.
Nonetheless, since the Complaint is ambiguous as to the type of Fourteenth Amendment violation
alleged, I will consider the Complaint as alleging both equal protection and due process claims.

1. The Procedural Due Process Claim
The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive
any person of life, liberty, or property, without due process of law.” U.S. Const., Amend. XIV, §
1. “A constitutionally protected liberty or property interest may arise directly from the
Constitution or from federal or state statutes or regulations.” Baldwin v. Hous. Auth. of City of
Camden, NJ, 278 F. Supp. 2d 365, 378 (D.N.J. 2003). “Essentially, due process requires that a
person be given notice and an opportunity to be heard prior to an adverse action.” Id. (citing
Goldberg v. Kelly, 397 U.S. 254, 267–68 (1970)). When a plaintiff alleges that state actors have
failed to provide procedural due process, a court must determine “whether the asserted individual
interests are encompassed within the fourteenth amendment's protection of ‘life, liberty, or

property.’” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (citing Robb v. City of Philadelphia,
733 F.2d 286, 292 (3d Cir. 1984)). If a protected interest is implicated, a court must then “decide
what procedures constitute ‘due process of law.’” Id. Here, the Court need not reach the second
step of that inquiry, because Plaintiffs have failed to allege the deprivation of any interest protected
under the Due Process Clause, a threshold inquiry.
Here, Plaintiffs’ Complaint alleges that the interests at issue are both their liberty interest
in pursuing a familial relationship with Foster Child 1, as well as their property interest in the form
of their foster parent license. Specifically, Plaintiffs’ Complaint alleges that “the individual
Defendants took actions adversely affecting the Plaintiffs without giving them notice and an
opportunity to be heard in violation of Plaintiffs’ rights pursuant to the 14th Amendment to the
Constitution,” Compl., ¶46 and that “Plaintiffs have a constitutionally protectable interest in Foster
Child 1 in that . . . they had a close familial relationship with said Foster Child 1 and that interest
was arbitrarily denied them in violation of the 5th and 14th Amendments to the Constitution.” Id.

at ¶47. However, Plaintiffs’ Opposition brief concedes that they do not, in fact, have a
constitutionally protectable liberty interest in their relationship with Foster Child 1, despite the
allegations in Paragraph 47 of the Complaint, and that Plaintiffs’ only focus in this litigation is the
revocation of their foster parent license.7 See Pl. Br. at 1(“While there may not be a right to be a

7 Even if Plaintiffs had not conceded that their relationship to Foster Child 1 does not give
rise to a fundamental liberty interest protected under the Fourteenth Amendment, such a claim
could not survive. Although parents have “constitutionally protected liberty interests” in the
“custody, care and management of their children,” Croft v. Westmoreland Cty. Children & Youth
Servs., 103 F.3d 1123, 1125 (3d Cir. 1997), courts have generally held that absent special
circumstances foster parents do not possess similar liberty interests regarding foster children.
Rodriguez v. McLoughlin, 214 F.3d 328, 339-41 (2d Cir. 2000)(“any liberty interest arising in the
preservation of a biologically unrelated foster family would arise, if at all, only under state law
and not under the Due Process Clause itself.”); Renfro v. Cuyahoga Cty. Dep't of Human Servs.,
884 F.2d 943, 944 (6th Cir. 1989) (holding that “[t]he nature of the foster care relationship is
distinctly different from that of the natural family; namely, it is a temporary arrangement created
by state and contractual agreements,” thus it does not give rise to a constitutionally protected
liberty interest.); Drummond v. Fulton Cty. Dep't of Family & Children's Servs., 563 F.2d 1200,
1207 (5th Cir. 1977)(holding that in cases “in which a child placement agency charged with the
custody of a child, places that child [with a foster family] for temporary care” the foster parents do
not have a constitutionally protected liberty interest in the relationship with the child); but
see Elwell v. Byers, 699 F.3d 1208, 1217 (10th Cir. 2012) (finding that foster parents who had
received court approval for their adoption plan possessed a protectable liberty interest because they
had a “reasonable expectation of developing a permanent relationship with the child”); Rivera v.
Marcus, 696 F.2d 1016 (2d Cir. 1982) (recognizing protectable liberty interest of foster parent who
was biologically related to her foster children). As the Supreme Court has explained, the liberty
interest that families possess is rooted in “intrinsic human rights, as they have been understood in
‘this Nation’s history and tradition.’” Smith v. Org. of Foster Families For Equal. & Reform, 431
U.S. 816, 845 (1977) (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977)). By
contrast, “[w]hatever emotional ties may develop between foster parent and foster child have their
origins in an arrangement in which the State has been a partner from the outset.” Id. When the
State interferes with the relationship between foster parents and foster children, the State is not
interfering “with a relationship having its origins entirely apart from the power of the State,” but
rather with a family unit that “has its source in state law and contractual arrangements.” Id. Thus,
foster parent, or to adopt a child, there is a constitutional right to participate in the system free
from discrimination because of one’s religious beliefs”); Pl. Br. at 7 (“Whatever the opportunity
to adopt is labeled, a court cannot disqualify someone from adopting on religious grounds without
violating that person’s rights to free exercise of his religious beliefs.”). Accordingly, any claims

related to an alleged violation of Plaintiffs’ due process rights on the basis of an alleged liberty
interest in their familial relationship with Foster Child 1 is dismissed.
As refined by their briefing on this motion, Plaintiffs’ focus is on the suspension of their
foster parent license. They contend that they were not given notice or an opportunity to be heard
regarding the suspension of their foster parent license. Pl. Br. at 7. They also contend that they
were denied procedural due process, because they were not advised of their statutory right,
pursuant to New Jersey state law, to appear and make a statement at the hearing regarding the
placement of Foster Child 1. Id.
Under certain circumstances, a statutory right may rise to the level of a protected interest
under the Due Process Clause. A protected liberty interest “may arise directly from the

Constitution or from federal or state statutes or regulations,” whereas “[p]roperty interests are not
created by the Constitution, but ‘are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law—rules or understandings
that secure certain benefits and that support claims of entitlement to those benefits.’” Baldwin,

the extent of any liberty interests possessed by foster parents, is derived from “the expectations
and entitlements of the parties” under state law, rather than the Due Process Clause. id. at 845-46;
see also N.J. Div. of Youth & Family Servs. v. D.P., 422 N.J. Super. 583, 593 (App. Div. 2011)
(“The legal relationship between the resource parent[ ] and the child emanates through a contract
with the Division sanctioned by state law.”). Accordingly, to the extent Plaintiffs have not
abandoned their due process claim based on the alleged interference with their liberty interest in
their relationship with Foster Child 1, it fails as a matter of law.
278 F. Supp. 2d at 378 (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 571(1972)).
However, “an expectation of receiving process is not, without more, a liberty interest protected by
the Due Process Clause.” Olim v. Wakinekona, 461 U.S. 238, 250 n.12 (1983).
In order for a statute to give rise to a constitutionally protectable property interest, the

statute must contain “explicitly mandatory language, i.e. specific directives to the decisionmaker
that if the regulations’ substantive predicates are present, a particular outcome must follow,”
Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 463 (1989), or the complainant “must
show that particularized standards or criteria guide the [government’s] decisionmakers.” Olim, 461
U.S. at 249. Ultimately, in order to have a constitutionally protected property interest “a person
clearly must have ‘more than an abstract need or desire’ and ‘more than a unilateral expectation
of” the benefit sought, rather the person “must instead, have a legitimate claim of entitlement to
it.’” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756, (2005) (quoting Bd. of Regents of State
Colleges, 408 U.S. at 564).
As an initial matter, Plaintiffs’ foster parent license is not, itself, a constitutionally

protected property interest. Indeed, Plaintiffs do not have a right to their foster parent license.
Whether a benefit granted by the state rises to the level of a protected property interest for purposes
of procedural due process is determined by looking to the state law that created the benefit. Larsen
v. Senate of Commw. of Pa., 154 F.3d 82, 92 (3d Cir. 1998); Kelly v. Borough of Sayreville, N.J.,
107 F.3d 1073, 1077 (3d Cir. 1997). Under the Resource Family Parent Licensing Act, prospective
foster parents are required to submit to an assessment by DCPP and obtain a license to act as a
foster parent. See N.J. Stat. Ann. §30:4C-27.3 to 27.12. As part of the licensing scheme,
prospective foster parents are required to submit an application, possess good moral character,
consent to a background check, and participate in both pre- and in- service foster parent training.
See N.J. Stat. Ann. § 30:4C-27.6. The license is valid for three years, and each year, the foster
parents must undergo a yearly home inspection and interview in order to maintain the license. N.J.
Admin. Code § 3A:51-2.2 to 2.3. Clearly, nothing in the statutory scheme suggests that Plaintiffs
had a “legitimate claim of entitlement” to their foster parent license. A foster parent license is not

a “property interest” protected by the Due Process Clause, but rather, a temporary contract with
the State, which is subject to renewal every three years. See e.g., Lockhart v. Matthew, 83 F. App'x
498, 500 (3d Cir. 2003) (holding Plaintiff did not have a constitutionally protected property interest
in EMT license which expired every two years). Thus, Plaintiffs’ foster parent license is not a
constitutionally protected property interest.
Furthermore, although the statutory scheme conveys certain procedural protections upon
Plaintiffs, those procedural requirements are not constitutionally required. In other words, while
Plaintiffs undeniably possessed – and were allegedly denied -- a statutory right to be informed of,
and to be provided an opportunity to contest the suspension of their foster parent license, DCPP’s
alleged failure to abide by the state statute, does not give rise to a constitutional violation. Since

Plaintiffs’ foster parent license is not, itself, a constitutionally protected interest, and the statute
does not create a constitutionally protected interest or right, Plaintiffs were not entitled to the
protections of the due process clause.
Pursuant to state law, the DCPP may deny, revoke, or suspend a foster parent license at
any time “for good cause,” including but not limited to, “[a]ny conduct, engaged in or permitted,
which adversely affects or presents a serious hazard to the education, health, safety, general well-
being or physical, emotional and social development of the child.” N.J. Stat. Ann. § 30:4C-27.9.
“Before denying, suspending or revoking a license, the [DCPP] shall give notice to a . . . resource
family parent personally or by mail to the last known address of the resource family parent
applicant or resource family parent with return receipt requested. The notice shall afford the
resource family parent applicant or resource family parent the opportunity to be heard and to
contest the [DCPP’s] action.” N.J. Stat. Ann. § 30:4C-27.10. Any appeal from the DCPP’s final
decision may be filed in the New Jersey Appellate Division. N.J. Stat. Ann. § 30:4C-27.11. Thus,

the statutory scheme does not establish “substantive predicates” or “mandatory outcomes” as to
the ultimate result of a hearing. Thompson, 490 U.S. at 463. Rather, the statute simply provides
the process by which Plaintiffs may challenge the revocation of their foster parent license. The
mere existence of the state statute prescribing a specific procedure does not create a due process
interest because “[p]rocess is not an end in itself.” Olim, 461 U.S. at 250-51. As the United States
Supreme Court has noted states “may choose to require procedures for reasons other than
protection against deprivation of substantive rights, of course, but in making that choice the State
does not create an independent substantive right.” Id.; see also Steele v. Cicchi, 855 F.3d 494, 508
(3d Cir. 2017) (dismissing Plaintiff’s procedural due process claim premised on correction center’s
failure to abide by disciplinary procedures set forth in the correction center’s manual because

“there is no standalone protected liberty interest in those procedures”); D.O. ex rel. C.O. v. Borden,
804 F. Supp. 2d 210, 220 (D.N.J. 2011) (explaining that “the Constitution does not assure a
plaintiff that he or she will receive the process conceived by a state law or regulation”);
Toolasprashad v. Williams, No. 07-5860, 2009 WL 1228430, at *7 (D.N.J. Apr. 28, 2009) (“The
Due Process Clause does not require the government to follow its own regulations, procedures or
laws if there is no underlying liberty or property interest”). Furthermore, the statutory scheme,
provides Plaintiffs the opportunity to challenge the suspension in the New Jersey Appellate
Division --- a procedure they do not appear to have utilized.
Similarly, Plaintiffs’ statutory right to be heard regarding the removal of Foster Child 1
does not give rise to a constitutionally protected property or liberty interest. The DCPP possesses
“the discretionary authority to remove a child in placement for a resource family home at any time
with or without the consent of the resource family parent.” N.J. Admin. Code § 3A:17-1.1.

However, the New Jersey Family Court must determine that the DCPP’s placement plan “ensures
the safety and health and serves the best interest of the child.” N.J. Stat. Ann. § 30:4C-51. To that
end, the New Jersey Family Court may schedule hearings to assess the appropriateness of a foster
child’s placement and, if such a hearing is scheduled, notice shall be provided to the child’s foster
parent. See N.J. Stat. Ann. § 30:4C-61(c). Further, the foster parents “shall have a right to be
heard at the hearing, but the caretaker shall not be made a party to the hearing solely on the basis
of the notice and right to be heard.” N.J. Stat. Ann. § 30:4C-61. Thus, New Jersey foster parents
possess a circumscribed, statutory right to be heard during a child placement proceeding.
Again, the statutory scheme does not mandate a specific outcome; it simply outlines the
procedure to be followed when making placement determinations. Moreover, even if Plaintiffs

had been informed of their right to be heard regarding the placement of Foster Child 1, their
participation would have been extremely limited, and the ultimate determination as to the
placement of Foster Child 1 would be left to the discretion of the New Jersey Family Court. As
the Supreme Court has recognized “a benefit is not a protected entitlement if government officials
may grant or deny it in their discretion.” Town of Castle Rock, 545 U.S. at 756. Notably, when
faced with similar due process challenges, other courts have generally held that statutes which
provide foster parents notice and an opportunity to be heard regarding the placement of a foster
child do not give rise to a protected property interest. See Elwell v. Byers, 699 F.3d 1208, 1214
(10th Cir. 2012) (holding that statutory requirements which required notice and an opportunity to
be heard prior to removal of a foster child “are plainly procedural rather than substantive” because
they do not guarantee a particular outcome.”); Huk v. Cty. of Santa Barbara, 650 F. App’x. 365
(9th Cir. 2016) (finding that although California state law requires “pre-removal notice and a
grievance process for foster parents to contest the removal of a foster child” those laws “do not

entitle foster parents, as a matter of federal constitutional right, to the notice and grievance
procedures required by California law. . . . as there is no entitlement, there is no constitutional
interest to protect with process.”). Ultimately, although Plaintiffs had a statutory right to be heard
regarding both the revocation of their foster parent license and the placement of Foster Child 1,
the procedures provided for by the New Jersey state statutes do not, in and of themselves, create a
constitutionally protected interest. Accordingly, Plaintiffs have failed to allege the deprivation of
an interest protected under the Due Process Clause; thus their procedural due process claims are
dismissed with prejudice.
2. The Equal Protection Claim
The Equal Protection Clause of the Fourteenth Amendment commands that no state shall

“deny to any person within its jurisdiction, the equal protection of the laws.” U.S. Const. Amend.
XIV, § 1. To state a claim under the Equal Protection Clause, a plaintiff must show that he received
“different treatment from that received by other individuals similarly situated.” Shuman v. Penn
Manor Sch. Dist., 422 F.3d 141, 151 (3d Cir. 2005). Generally, parties may bring two types of
equal protection claims: class of one claims and selective enforcement claims. See Patterson v.
Strippoli, 639 F. App'x 137, 142 (3d Cir. 2016). Both theories require a plaintiff to demonstrate
that he or she was treated differently from similarly situated individuals. Id. A selective
enforcement claim requires a plaintiff to demonstrate that the different treatment was the result of
an “unjustifiable standard” such as race, or religion or in order to prevent an individual from
exercising a fundamental right. Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). In
contrast, a “class of one” claim requires the plaintiff to sufficiently allege that he or she “ ‘has been
intentionally treated differently from others similarly situated and that there is no rational basis for
the difference in treatment.’ ” Zitter v. Petruccelli, 744 F. App’x 90, 97 (3d Cir. 2018)(quoting

Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).
Although Plaintiffs have not specifically identified which theory underlies their Equal
Protection claim, Plaintiffs allege that they were subject to different treatment as a result of their
religious beliefs, which amounts to a selective enforcement claim. However, that claim fails as
Plaintiffs have not alleged that the DCPP treated similarly situated foster parents, who did not
share their religious beliefs, differently than Plaintiffs. Plaintiffs’ Complaint merely summarily
alleges that Plaintiffs were denied equal protection of the law. Their opposition brief provides no
further clarity, but simply argues that they were subject to “governmental discrimination because
of their [religious] beliefs.” Pl. Br. at 9. Because Plaintiffs have not identified any comparable or
similarly situated individuals who were treated differently, Plaintiffs’ equal protection claim fails

to state a claim. See Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008) (“An
essential element of a claim of selective treatment under the Equal Protection Clause is that the
comparable parties were similarly situated. Persons are similarly situated under the Equal
Protection Clause when they are alike in all relevant aspects.”); Bradley v. United States, 299 F.3d
197, 206 (3d Cir. 2002) (explaining that differential treatment may be demonstrated “by naming
similarly situated members of an unprotected class who were not selected for the same search or,
in some cases, by submitting statistical evidence of bias.”).
Accordingly, Plaintiffs’ Equal Protection claim against Individual Defendants is dismissed
without prejudice.
iii. Plaintiffs’ First Amendment Claims
Plaintiffs allege that they were discriminated against on the basis of religion in violation of
their First Amendment rights. Pl. Br. 7. Again, Plaintiffs’ Complaint fails to elucidate the precise
nature of the alleged First Amendment violation, or address the specific elements; however,

Plaintiffs allege that they are “devout Christians who hold to traditional values and beliefs about
family, marriage and sex,” Compl. ¶¶1,8, and that the “[t]he only apparent basis for suspending
Plaintiffs as Foster Parents and for the removal of Foster Child 1 from Plaintiffs home was because
of the Plaintiffs’ religious belief that homosexuality is a sin,” Compl., ¶36. Those factual
underpinnings suggest that Plaintiffs are alleging retaliatory conduct by the DCPP employees.
To plead a retaliation claim under the First Amendment, 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 causal link between the constitutionally
protected conduct and the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir.
2006) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)); accord Falco v. Zimmer, 767

F. App’x 288, 310 (3d Cir. 2019) (distinguishing between First Amendment retaliation claims by
public employees and those by private individuals). “[T]he key question in determining whether
a cognizable First Amendment claim has been stated is whether ‘the alleged retaliatory conduct
was sufficient to deter a person of ordinary firmness from exercising his First Amendment rights.’”
McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (quoting Suppan v. Dadonna, 203 F.3d 228, 235
(3d Cir. 2000)).
Plaintiffs allege that both the removal of Foster Child 1 and the revocation of their foster
parent license were discriminatory actions taken by the Individual Defendants because of
Plaintiffs’ religious beliefs. As previously noted, Plaintiffs’ Complaint does not specifically
address any of the specific elements of a First Amendment claim; however, Plaintiffs allege that
the removal of Foster Child 1 was based on Plaintiffs’ religious belief regarding homosexuality.
While Plaintiffs paint the constitutionally protected conduct with a broad brush, the facts, as
alleged, suggest, two possible theories of retaliation: Plaintiffs were retaliated against for simply

holding the religious belief that homosexuality is a sin and/or Plaintiffs were retaliated against for
sharing their religious beliefs with Foster Child 1 while she resided in their home. Neither theory,
as currently alleged, clearly presents a viable claim of First Amendment retaliation.
To the extent Plaintiffs allege that the constitutionally protected conduct in which they
engaged is having held a particular religious belief, that clearly constitutes “constitutionally
protected conduct.” Emp’t Div. v. Smith, 494 U.S. 872, 877 (1990)(“The free exercise of religion
means, first and foremost, the right to believe and profess whatever religious doctrine one
desires”); Cantwell v. Connecticut, 310 U.S. 296, 303–04 (1940)(“The Free Exercise Clause
“embraces two concepts,—freedom to believe and freedom to act. The first is absolute[.]”). Thus,
Plaintiffs have arguably satisfied the first element. However, Plaintiffs have not demonstrated the

requisite causal connection between their religious beliefs and the adverse actions they suffered.
In order to establish a causal connection, “the plaintiff usually must allege one of two things: (1)
an unusually suggestive time proximity between the protected activity and the allegedly retaliatory
action; or (2) a pattern of antagonism coupled with timing to establish a causal link.” DeFranco v.
Wolfe, 387 F. App'x 147, 155 (3d Cir. 2010) (citing Luren W. ex rel. Jean W. v. DeFlaminis, 480
F.3d 259, 267 (3d Cir. 2007)). In the absence of such an allegation, “the plaintiff must show that
from the ‘evidence gleaned from the record as a whole’ the trier of fact should infer
causation.” DeFlaminis, 480 F.3d at 267 (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271,
281 (3d Cir.2000)). As the Third Circuit has explained, at the motion to dismiss phase, the plaintiff
must only allege some evidence, direct or circumstantial, of this element that is “enough to raise a
right to relief above the speculative level.” Falco, 767 F. App’x at 310 (quoting Twombly, 550
U.S. at 555). However, Third Circuit has also cautioned that “[a] court must be diligent in enforcing
these causation requirements because otherwise a public actor cognizant of the possibility that

litigation might be filed against him [or her], particularly in his [or her] individual capacity, could
be chilled from taking action that he [or she]deemed appropriate and, in fact, was appropriate.” Id.
Here, Plaintiffs have not pled evidence of a causal link between Plaintiffs beliefs and the alleged
retaliatory conduct.
The order of events, as currently pled, belies Plaintiffs’ position that the Individual
Defendants’ actions were in retaliation for Plaintiffs’ religious beliefs. Plaintiffs Complaint alleges
that in December 2017, the foster parents of Foster Child 1’s siblings were informed that the
potential adoptive parents were a same-sex couple, yet when Plaintiffs inquired about the potential
adoptive family, Defendants Higgins and Epperly claimed not to know any information about the
potential adoptive family. Thus, Plaintiffs factual allegations suggest that the Individual

Defendants were aware of Plaintiffs’ religious beliefs regarding homosexuality, as early as
December 2017. However, the alleged retaliatory actions – the removal of Foster Child 1 and the
suspension of Plaintiffs’ foster parent license – did not occur until July 2018, seven months later.8
Seven months is not “unusually suggestive.” Falco, 767 F. App'x at 314 (finding close temporal
proximity where there were two instances of protected activity and retaliatory conduct, with nine
months between first instance of protected activity and retaliatory conduct and one month between

8 Plaintiffs allegedly did not discover the suspension of their foster parent license until October
12, 2018. It is unclear at precisely what point in time Plaintiffs’ license was suspended; however
Foster Child 1 resided with them until July3, 2018 – ostensibly, Plaintiffs were still licensed to act
as foster parents until that date.
second instance of protected activity and allege retaliatory conduct); Thomas v. Town of
Hammonton, 351 F.3d 108, 114 (3d Cir. 2003)(finding lack of causal connection for First
Amendment retaliation claim where three weeks passed between protected conduct, filing of
sexual harassment complaint, and retaliatory action, Plaintiff’s termination); Jalil v. Avdel Corp.,

873 F.2d 701, 708 (3d Cir. 1989)(finding unusually suggestive temporal proximity where two days
passed between the protected activity and the alleged retaliation).
Although “timing plus other evidence” may be sufficient to establish causation “where the
temporal proximity is not so close as to be ‘unduly suggestive,’” Plaintiffs have not alleged any
facts from which a fact finder could reasonably discern that the Individual Defendants acted out
of hostility towards Plaintiffs’ religious beliefs. Farrell, 206 F.3d at 280. Plaintiffs’ Complaint
identifies various instances in which the DCPP employees questioned Foster Child 1 about her
beliefs. Notably, DCPP is required by regulation to “work with the resource parent to provide the
child in placement with reasonable opportunities to attend religious activities and services in
accordance with the child's preference and the wishes of the child's own parents.” N.J. Admin.

Code § 3A:14-4.1(a). Defendants’ questioning of Foster Child 1 regarding her religious beliefs
was appropriate in light of the DCPP’s regulatory obligations, and the imminent possibility that
Foster Child 1 might be adopted by a same-sex couple. Plaintiffs identify only one occasion on
which the Individual Defendants inquired about Plaintiffs’ religious beliefs, and in that respect,
the inquiry appears to have been a limited one in which the Individual Defendants queried whether
Plaintiffs would “reject Foster child 1 if she ever decided to explore her sexuality” and “sought
assurance from the Plaintiffs that would not be the case.” Compl. ¶29. Such questioning is not
indicative of hostility towards Plaintiffs’ particular religious beliefs, but rather, the Individual
Defendants’ exercise of their administrative functions as employees of the entity prescribed with
the duty of safeguarding Foster Child 1’s well-being. In light of the temporal chasm between the
Individual Defendants discovery of Plaintiffs’ religious beliefs and the alleged retaliatory conduct,
and the lack of other circumstantial evidence from which causation could be inferred, Plaintiffs
fail to state a claim premised on retaliation for their religious beliefs.

Furthermore, to the extent the alleged right at issue is more narrowly construed as the right
to share their religious beliefs with Foster Child 1 while she was residing in their home, it is unclear
whether such conduct is constitutionally protected. Although Plaintiffs have an absolute right to
practice whatever religious beliefs they choose, their right to free exercise does not, necessarily,
permit them to engage in religious practice and share their beliefs with Foster Child 1, who was
not Plaintiffs’ adoptive child and Plaintiffs were not her legal guardian. Regardless, Plaintiffs have
not clearly pled such a theory nor has either party adequately discussed it. Ultimately, Plaintiffs’
have not pled their factual allegations with adequate specificity to properly apprise Defendants of
the basis of their First Amendment retaliation claim, particularly since Plaintiffs have not specified
the nature of the constitutionally protected conduct. Accordingly, Plaintiffs’ First Amendment

retaliation claim is dismissed without prejudice.
iv. Civil Rights Conspiracy, 42 U.S.C. §1985
Plaintiffs allege that the Individual Defendants conspired for the purpose of denying
Plaintiffs’ First, Fourteenth, and Fifth Amendment rights. In order to assert a violation of Section
1985, a plaintiff must allege: “(1) a conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges
and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a
person is injured in his person or property or deprived of any right or privilege of a citizen of the
United States.” Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006) (quoting United Bhd.
of Carpenters & Joiners v. Scott, 463 U.S. 825, 828–29 (1983)).
Plaintiffs’ Section 1985 conspiracy claim fails, as well. To the extent Plaintiffs’ 1985 claim
is premised on the same factual underpinnings as their Equal Protection claim, the Section 1985

claim fails for similar reasons. Plaintiffs have not sufficiently alleged that they were treated
differently than any comparable or similarly situated individuals. Plaintiffs’ “mere conclusory
allegations of deprivations of constitutional rights are insufficient to state a § 1985(3) claim.”
Carpenter v. Ashby, 351 F. App’x 684, 687 (3d Cir. 2009) (citing Bray v. Alexandria Women’s
Health Clinic, 506 U.S. 263, 267-68 (1993)).
Furthermore, Plaintiffs have not alleged any facts suggesting an agreement or concerted
action amongst the Individual Defendants. See Startzell, 533 F.3d at 205 (“To constitute a
conspiracy, there must be a ‘meeting of the minds.’ ” (quoting Adickes v. S.H. Kress & Co., 398
U.S. 144, 158 (1970))); Aulisio v. Chiampi, 765 F. App’x 760, 764 (3d Cir. 2019) (dismissing
conspiracy claim against state prison officials because inmate-prisoner “offered nothing more than

conclusory statements that Defendants conspired to deprive him of his constitutional rights; no
evidence suggests that they agreed, plotted, or even discussed doing so”).
Plaintiffs’ Section 1985 conspiracy claim is dismissed without prejudice.
v. Violation of NJLAD
Plaintiffs have asserted a claim against all Defendants under the New Jersey Law Against
Discrimination (“NJLAD”), N.J. Stat. Ann. § 10:5-12(f), for discrimination in a place of public
accommodation. NJLAD provides that it shall be unlawful: “[f]or any . . . employee of any place
of public accommodation directly or indirectly ... to discriminate against any person in the
furnishing thereof.” N.J. Stat. Ann. § 10:5-12(f)(1).
The threshold issue at this juncture is whether the DCPP constitutes a place of
public accommodation. The NJLAD provides a non-exhaustive list of places of public
accommodation:
A “place of public accommodation” shall include, but not be limited
to: any tavern, roadhouse, hotel, motel, trailer camp, summer camp,
day camp, or resort camp, whether for entertainment of transient
guests or accommodation of those seeking health, recreation, or rest;
any producer, manufacturer, wholesaler, distributor, retail shop,
store, establishment, or concession dealing with goods or services
of any kind; any restaurant, eating house, or place where food is sold
for consumption on the premises; any place maintained for the sale
of ice cream, ice and fruit preparations or their derivatives, soda
water or confections, or where any beverages of any kind are retailed
for consumption on the premises; any garage, any public
conveyance operated on land or water or in the air or any stations
and terminals thereof; any bathhouse, boardwalk, or seashore
accommodation; any auditorium, meeting place, or hall; any theatre,
motion-picture house, music hall, roof garden, skating rink,
swimming pool, amusement and recreation park, fair, bowling alley,
gymnasium, shooting gallery, billiard and pool parlor, or other place
of amusement; any comfort station; any dispensary, clinic, or
hospital; any public library; and any kindergarten, primary and
secondary school, trade or business school, high school, academy,
college and university, or any educational institution under the
supervision of the State Board of Education or the Commissioner of
Education of the State of New Jersey. Nothing herein contained
shall be construed to include or to apply to any institution, bona fide
club, or place of accommodation, which is in its nature distinctly
private; nor shall anything herein contained apply to any educational
facility operated or maintained by a bona fide religious or sectarian
institution, and the right of a natural parent or one in loco parentis
to direct the education and upbringing of a child under his control is
hereby affirmed; nor shall anything herein contained be construed
to bar any private secondary or post-secondary school from using in
good faith criteria other than race, creed, color, national origin,
ancestry, gender identity, or expression or affectional or sexual
orientation in the admission of students.

N.J. Stat. Ann. § 10:5-5.
There is no dispute that the DCPP is not one of the enumerated places of public
accommodation. Nonetheless, Plaintiffs contend that the New Jersey Appellate Division has
previously held that government agencies are places of public accommodation under the NJLAD.
Pl. Br. at 11 (citing Thomas v. Cty of Camden, 902 A.2d 327 (App. Div. 2006)). In response to
Plaintiffs’ reliance on Thomas, Defendants urge this Court to follow the reasoning of the district
court in Doe v. Div. of Youth & Family Servs., 148 F. Supp. 2d 462 (D.N.J. 2001), and conclude

that the DCPP is not a place of public accommodation. Def. Reply Br. at 10. Further, Defendants
contend that even if the DCPP were a place of public accommodation, Plaintiffs have not alleged
a nexus between Plaintiffs’ religious beliefs and the DCPP’s decision to revoke Plaintiff’s foster
parent license or the removal of Foster Child 1. Def. Reply. Br. at 12.
In ascertaining whether a non-listed place constitutes a public accommodation, both New
Jersey State courts and courts of this Districts look to “whether the entity engages in broad public
solicitation, maintains close relationships with the government or other public accommodations,
or whether it is similar to enumerated or other previously recognized public accommodations.”
Dale v. Boy Scouts of Am., 734 A.2d 1196, 1210 (N.J. 1999), rev’d on other grounds, 530 U.S.
640 (2000); Doe, 148 F. Supp 2d 462 (analyzing whether DYFS is similar to other statutorily

enumerated places of public accommodation).
In Doe v. Div. of Youth & Family Servs., 148 F. Supp. 2d 462, 496 (D.N.J. 2001), the court
assessed whether the Division of Youth and Family Services, the DCPP’s predecessor, constituted
a place of public accommodation under NJLAD. Looking first to the statute, the court in Doe
noted that “[a] brief review of the listed entities leads to the inescapable conclusion that none of
the listed entities even remotely resemble DYFS or any other State agency” and explained that if
the “the legislature intended to include State agencies within NJLAD's public accommodation
provision, it would have included at least one term reflecting that intent.” Id. at 496. Further, the
court found that DYFS did not constitute a place of public accommodation under the “broad
solicitation test” because “[i]t cannot be said that a State child welfare agency charged with
enforcing anti-child abuse laws broadly solicits the public to partake in its services.” Id. at 495.
Subsequent to the district court’s decision in Doe, the New Jersey Appellate Division has
addressed whether other state entities are places of public accommodation within the scope of

NJLAD. See Ptaszynski v. Uwaneme, 853 A.2d 288, 291, 295–97 (N.J. App. Div. 2004) (holding
that “a municipal police department and the individual officers qualify as a ‘place of public
accommodation’ to support an LAD claim . . . . As a public entity, by its very nature a police force
is a place of public accommodation.”); Thomas v. Cnty. of Camden, 902 A.2d 327, 332–334 (N.J.
App. Div. 2006) (holding that the County of Camden and its executive units are “places of public
accommodation” for purposes of the NJLAD).
In Thomas, the Appellate Division was faced with the issue of whether the Camden County
Communications Center (CCCC), a dispatch agency for police, fire and emergency medical
services, constituted a place of public accommodation. Thomas, 902 A.2d at 333. The court
explained that, in its view, it was not “required to analyze the extent of public solicitation or the

closeness of the relationship with government simply because the Camden defendants are public
entities and, by their very nature, constitute a place of public accommodation.” Id. The court
rejected the CCCC’s argument that it could not constitute a public accommodation, in light of the
limited public access to the facility “which is “locked down 24 hours per day, 7 days per week.”
Id. The court reasoned that the “CCCC is a division of the Department of Public Safety, an
executive unit of county government” and it would lead “‘to an anomalous result if private
organizations with close ties to government agencies were places of public accommodation
because of those ties, while the government agency itself was not.’” Id. (quoting Ptaszynski, 853
A.2d 297.).
I am not persuaded that the DCPP constitutes a place of public accommodation. As an
initial matter, this Court is not bound by the Appellate Division’s decisions in Thomas or
Ptaszynski. Importantly, those cases did not specifically address the DCPP and although, the
decisions ostensibly extend the ambit of NJLAD to all governmental entities, I find there is no

indication that the New Jersey Legislature intended NJLAD to extend to governmental entities
such as the DCPP. Notably, while the Appellate Division in Thomas relied on cases involving
public school and police stations in reaching its conclusion, the court also cited Doe for the
proposition that “state agency DYFS was not [a] place of public accommodation because it is not
included on the list of public accommodations and it does not engage in broad public solicitation,”
suggesting that that the decision in Thomas did not extend to DYFS and thus, would not extend to
the DCPP. 902 A.2d at 333.
Regardless, the DCPP inarguably plays a different role in the governmental regime than
entities which provide essential public services, such as police departments or public schools. The
DCPP is an arm of the state government, and it does not provide general services to the public at

large, nor does it engage in “broad public solicitation.” Dale, 734 A.2d at 1210. Rather, it provides
discrete services to a limited subset of the population: children whose safety, permanency, and
well-being are at risk. Thus, I find, consistent with prior decisions of this district, that the DCPP
does not constitute a place of public accommodation. See Doe, 148 F. Supp 2d at 496 ; see
also K.J. ex rel. Lowry v. Div. of Youth & Family Servs., 363 F. Supp. 2d 728, 750 (D.N.J.
2005)(holding that the Division of Youth and Family Services, is not a place of public
accommodation because “[t]he definition of a place of public accommodation is not so broad as to
include the services provided by a state agency within the meaning of public accommodation.
Instead it refers to facilities maintained for the use of the general public.”).
Accordingly, Plaintiff’s NJLAD claims against Defendants is dismissed with prejudice.
C. Qualified Immunity
Government officials enjoy qualified immunity so long as “their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have

known.” Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir. 1997); Mammaro v. N.J. Div. of Child
Protection & Permanency, 814 F.3d 164, 168-169 (3d Cir. 2016).
The Supreme Court has established a two-part test for determining whether a state actor is
entitled to a defense of qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001). This test
asks “(1) whether the facts alleged by the plaintiff show the violation of a constitutional right; and
(2) whether the right at issue was clearly established at the time of the alleged misconduct.” James
v. City of Wilkes Barre, 700 F.3d 675, 679 (3d Cir. 2012) (citing Saucier, 533 U.S. at 201).
Because Plaintiffs have failed to state a claim as to a violation of their constitutional or
statutory rights, I need not address whether the Individual Defendants are entitled to qualified
Immunity on any of Plaintiffs’ claims.

IV. CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss is GRANTED. Plaintiffs’
NJLAD claim against all Defendants and Plaintiffs’ NJCRA, Section 1985, Section 1983 claims
against the State, the DCPP, and the DCPP employees acting in their official capacity are
dismissed with prejudice. Plaintiffs’ NJCRA, Section 1983, and Section 1985 claims against the
Individual Defendants, premised on an alleged violation of the Due Process Clause of the
Fourteenth Amendment are dismissed with prejudice. Plaintiffs’ NJCRA claim, Section 1983,
and Section 1985 claims against the Individual Defendants, premised on an alleged violation of
the Equal Protection Clause of the Fourteenth Amendment, and violations of the First Amendment,
are dismissed without prejudice, and Plaintiff may file an amended complaint within thirty (30)
days consistent with this Opinion.
Date: September 26, 2019
/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
U.S. Chief District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10266826. Public record. Not legal advice.