“A nonmoving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial.”
How later courts described this case
- “A nonmoving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DENNIS MAZZETTI, individually and
on behalf of D.M. as the “next Civ. No. 14-8134 (KM) (MAH)
friend” of D.M. a minor,
OPINION
Plaintiff,
v.
THE NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY (“DCP&P”) (formerly
Division of Youth and Family
Services), et al.,
Defendants.
KEVIN MCNULTY, U.S.D.J.:
Plaintiff Dennis Mazzetti brings this action alleging a bevy of
constitutional violations committed during the process of terminating his
parental rights over his child, D.M., and later, when the child was in the
custody of Mazzetti’s mother. This matter comes before the court on a motion
for summary judgment filed by defendants Kimberly Roberts and Erica Zapata.
(DE 42). For the reasons set forth below, the motion will be GRANTED.
I. Background!
A. The Parties
The relevant figures in this action are Mazzetti; his mother, Linda; his
brothers, Dennis and Daniel; his child, D.M.; the child’s mother, C.H.; and
1 Certain key items from the record will be abbreviated as follows:
DE __ = Docket entry number in this case
Compl. 7 Complaint and jury demand (DE 1)
Ex. __ = Exhibits filed within DE 42 and DE 60
Ex. A = Order to Show Cause, Signed by Judge Bonnie Mizdol (DE 60-1)
D.M’s half-sister C.M. Defendants Roberts and Zapata are employees of the
New Jersey Department of Child Protection and Permanency (*“DCP&P”).
B. Facts
D.M. was born on March 11, 2007 to Mazzetti and C.H. (DE 56 4 1). He
was born with cocaine in his system and, following his release from the
hospital, he was placed in a foster home. (DE 56 4 2-3). A few months later,
Mazzetti’s mother, Linda, agreed to care for D.M. and D.M. was placed in her
home. (DE 56 6). Linda eventually adopted D.M. (DE 56 { 6).?
At some point, DCP&P sought to terminate Mazzetti’s parental rights
based on the best interests of the child. (DE 56 8). Mazzetti could not provide
for D.M. without assistance from Linda. During the termination proceedings,
DCP&P workers testified that he “failed . . . to plan for [D.M.’s] future” and
“abandoned his minor child to the care of others.” (Compl. 7 64-68, 73, 76,
79-84).
Mazzetti’s rights over D.M. were terminated by the Family Part of the New
Jersey Superior Court. (DE 56 7 9). He appealed, and in January 2012 the
Appellate Division of the New Jersey Superior Court affirmed the trial court’s
denial of Mazzetti’s parental rights:
We only briefly observe with regard to these two prongs that the
record abundantly demonstrated that defendant failed to obtain or
maintain stable employment and was unable or unwilling to secure
adequate housing for the child. He refused for several months to
comply with the Division’s reasonable request and the trial court’s
order that he submit to hair follicle drug testing even when his
Ex. B ™ Best Interest Evaluation by Ada Liberant, Psy.D. (DE 60-2)
Ex. C = Forensic Evaluation by Barry Katz, Ph.D. (DE 60-3)
Ex. D = Letter from Brett Biller, Psy.D. (DE 60-4)
Ex. E = Evaluation of Attachment by Kathleen Krol, Ph.D. (DE 60-5)
Ex. F = Deposition of Dennis Mazzetti (DE 42-4)
Ex. G Deposition of Kimberly Roberts (DE 42-4)
Ex. H = Deposition of Erica Zapata (DE 42-4)
2 C.M. voluntarily relinquished her parental rights. (DE 56 { 7).
right to visitation hung in the balance.? In addition, the judge
relied on the Division’s expert, Dr. Alice S. Nadelman, who
concluded that defendant would “not be physically or
psychologically able to take care of his son for the foreseeable
future.” Indeed, defendant’s own expert, Dr. Marc Friedman,
reached a similar conclusion, expressing an opinion that he did
“not believe [defendant] has the maturity or judgment to raise a
child.” In his thorough findings of fact, the trial judge properly
reached the conclusion that these circumstances clearly and
convincingly demonstrated that defendant had exposed the child to
a substantial risk of harm and defendant was unable or unwilling
to eliminate that harm.
[fn. 2} When defendant finally submitted to hair follicle drug testing
months alter it was sought, he tested positive for cocaine.
(fn. 3] Defendant also contends the Division failed to make
reasonable efforts to provide services to him. We find this
argument to be meritless. R. 2:11-3(e)(1}(E). The Division provided
a psychological evaluation, parenting classes and substance abuse
treatment. Services were offered to assist defendant in obtaining
housing and employment. That these efforts largely failed to bear
fruit is not the test. Indeed, defendant alone stood in the way of his
obtaining employment or a suitable home, making it clear to the
Division’s caseworker that he “could get his own work when he
chose to,” and that he had funds available to secure housing.
New Jersey Div. of Youth & Family Servs. v. D.M., No. A-2509-09T3, 2012 WL
127437 at *2 & nn.2 & 3 (N.J. Super. Ct. App. Div. Jan. 18, 2012) (citing In re
Guardianship of D.M.H., 161 N.J. 365, 393 (1999); see also DE 56 { 10.)
Mazzetti sought and was denied review first from the New Jersey
Supreme Court and then from the Supreme Court of the United States. See
N.J. Dep’t of Children and Families, Div. of Youth and Family Servs, v. D.M., 210
N.J. 218 (May 9, 2012); D.M. v. N.J. Dep’t of Youth & Family Servs., 133 8S. Ct.
571 (Oct. 29, 2012). In the interim, on August 23, 2012, Mazzetti filed a federal
court complaint that substantially overlaps the subject matter of this action.
3 That case, Mazzetti v. New Jersey Division of Child Protection Permanency, Civ.
No. 12-5347, was assigned to a different judge in this district. There too, Mazzetti sued
(DE 56 { 13). Mazzetti’s filing of that case, Mazzetti v. New Jersey Division of
Child Protection Permanency, Civ. No. 12-5347 (D.N.J.}, is claimed here to be
the basis for defendants’ alleged acts of retaliation.
On or about March 7, 2014, Linda was hospitalized. (DE 56 4 10). While
Linda was in the hospital, D.M. remained—as Linda intended—in the care of
his uncle, David. (Ex. A at 3). On June 23, David was hospitalized and tested
positive for opiates, PCP, benzodiazepines, and amphetamines. (Ex. A at 3). At
that time, Mazzetti and his other brother Daniel acted as primary caretakers
for D.M. and his older sister. (Ex. C at 6). On July 1, 2014, David returned
home. (Ex. A at 3). According to a later court order, at this point “[t]here were
continued concerns about substance abuse and parenting ability” of all three
brothers. (Ex. C at 6; see also Ex. A at 3). Because of these concerns, a local
DCP&P office manager decided to remove D.M. from Linda’s care. (Ex. G 34:1-
6).
On July 1, 2014, DCP&P caseworker Kimberly Roberts conducted an
emergency removal of D.M. from Linda’s home. (I further discuss Roberts’s
involvement below.)
On July 3, 2014, Hon. Bonnie Mizdol, Presiding Judge of the Bergen
County Family Part, held a hearing on an Order to Show Cause with
Temporary Custody and Appointment of a Law Guardian. (Ex. A). Mazzetti’s
brother David attended in person and Linda appeared by telephone. (Ex. A).
Finding it to be in D.M.’s best interest, Judge Mizdol terminated Mazzetti’s
visitation rights. (Ex. A). D.M was placed back into foster care. (Ex. B).
Judge Mizdol found as follows:
a host of New Jersey officials and DCP&P, alleging that they violated his rights during
the termination proceeding. See Mazzetti v. Wood, 573 F. App’x 165, 166 (3d Cir.
2014). The trial court judge dismissed the case on Rooker-Feldman grounds, but the
Third Circuit vacated that decision, instructing the district court to consider Great
Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 163 (3d Cir. 2010).
See 573 F. App’x at 166-67. On remand, Mazzetti filed an amended complaint,
withdrew the complaint, and moved to disqualify the judge. There has been no
subsequent activity in that case. See Docket, Civ. No. 12-5347 (D.N.J).
The Division was granted custody of [C.M.] on September 19, 2005
after it was confirmed that [C.H.] and Mr. Daniel Mazzetti were
drug involved and [C.M.] witnessed acts of domestic violence
between [C.H.] and Mr. Mazzetti. On June 8, 2006, [C.M.] was
returned to [C.H.] after she successfully engaged in drug
treatment, counseling and parenting classes. Mr. Mazzetti
continued to be drug involved and tested positive for cocaine on
numerous occasions. On March 11. 2007, Ms. Demeter gave birth
to [D.M.]. [C.H.] and [D.M.] tested positive for cocaine the day of his
birth. [C.H.] admitted she used a bag of cocaine on March 10,
2007. On September 27, 2007, the Division filed for Guardianship
of [C.M.] due to [C.H.]’s history of substance abuse and domestic
violence and Mr. Mazzetti’s ongoing substance abuse problems and
psychiatric instability. In July of 2008, the Division filed for
Guardianship of [D.M.] due to [C.H.]’s history of substance abuse
and domestic violence and continued affiliation with Daniel and
Dennis Mazzetti which caused the Center for Evaluation and
Counseling to consider [C.H.] to be a high risk for relapse.
Additionally, Dennis Mazzetti failed to cooperate with court ordered
services and failed to obtain and maintain stable housing for him
and [D.M.] to be apart from [C.H.] and Mr. Daniel Mazzetti. On
August 5, 2009, [C.M.] Kinship Legal Guardianship with Linda
Mazzetti was finalized. On May 31, 2013, [D.M.]’s adoption with
Linda Mazzetti was finalized.
On March 7, 2014, Linda Mazzetti was hospitalized after 7 year-old
(D.M.] pushed-her down while throwing a tantrum and she broke
her vertebrae. Ms. Mazzetti has suffered several falls since then
and has not been able to be out of the hospital since this time. On
June 30, 2014, Ms. Mazzetti told the Division worker she did not
have the energy or the ability to care for [D.M.] anymore as he was
such an active [sic].
On June 23, 2014, [D.M.]’s paternal uncle, David Mazzetti, who
had been [C.M.] and [D.M.]’s primary caregiver since Ms. Mazzetti
was hospitalized, checked himself into the hospital for shortness of
breath and chest pains and tested positive for opiates, PCP,
benzodiazepines, and amphetamines. While both Linda Mazzetti
and David Mazzetti were hospitalized, Mr. Daniel Mazzetti, whose
child was in Kinship Legal Guardianship, and Dennis Mazzetti,
whose parental rights of his child had been terminated, were acting
as [D.M.] and [C.M.]’s primary caregivers. On July 1, 2014, David
Mazzetti was released from the hospital and returned home. The
Division worker spoke to Linda Mazzetti who indicated that it was
her plan for David Mazzetti to be the primary caretaker for Cecilia
and Daniel until she could return home. In addition to positive
drug screens, when the Division workers spoke with Mr. Mazzetti
on July 1, 2014, he appeared sweaty, pale, and fragile.
(Ex. A at 1-2). Judge Mizdol determined that the D.M.’s removal had been
necessary based on an imminent danger to his life, safety, or health. (Ex. A at
2). She granted Linda and David simultaneous visitation rights twice a week for
eight hours at a time. (Ex. A at 4). The order also makes clear that “[njeither
Dennis Mazzetti nor [C.H.] shall have visitation with 7 yr old [D.M.].”
Kimberly Roberts’s Involvement
As noted above, on July 1, 2014, DCP&P caseworker Kimberly Roberts
conducted an emergency removal of D.M. from Linda’s home.? (DE 56 { 30).
The removal was based on information provided by Deputy Attorney General
Ellen Buckwalter, who, in a verified complaint, stated that Linda “was ‘no
longer able to care for [D.M.] due to her hospitalization.” (Compl. 4 125-129,
134, 143; see also DE 60-3 at 6).
Roberts testified that at this time she was not aware that Mazzetti was
the plaintiff in a pending federal lawsuit against DCP&P. (Ex. G 38:5-15).°
Indeed, Roberts’s entire involvement in the case lasted only about two months
(Ex. G 38:16-19), and she did not learn of the lawsuit until after her
involvement had ended (Ex. G 38:12-15). During his deposition, Mazzetti
conceded that he had no direct evidence that Roberts knew of his lawsuit:
Q. Okay. Going back to Miss Roberts, did she, at any time,
specifically discuss with you the complaints, any complaints?
A. No.
4 During the removal, Roberts made physical contact with Mazzetti’s brother
Daniel. The parties agree that Daniel was struck by the car door as Roberts closed it,
but dispute whether it was intentional. (Ex. G, 49:18-50:18). The Elmwood Park
Municipal Court later found probable cause to issue a criminal complaint, but the
Bergen County Prosecutor declined to prosecute Roberts. (Ex. G 69:18-73:3).
5 Mazzetti does not dispute her statement but states that “it is self-serving and
not credible.” (DE 56 { 28).
Q. Okay. And she was never a defendant in any of your court
filings ... prior to this, correct?
A. That’s correct.
(Ex. F 91:21-92:4. See also Ex. G 90:21-92:4 (Roberts not named as defendant
in Mazzetti’s federal action).).
As noted above, the emergency removal was ratified by order of Judge
Mizdol two days later, on July 3, 2014.
Erica Zapata’s Involvement
During late summer or early fall 2014, and while still hospitalized, Linda
executed a codicil to her will in which she appointed her son (Dennis, the
plaintiff here) as D.M.’s guardian. (Ex. G 75:14-19). Linda then died and D.M
remained in foster care. (Ex. B). At some time later in 2014, D.M.’s case with
DCP&P was reassigned to Zapata. (Ex. H 15:24-16:13). After his mother’s
death, Mazzetti tried to regain custody of his son. (Ex. H 32:9-21).
All the while, Mazzetti’s first federal lawsuit remained pending. Like
Roberts, Zapata was not a defendant in that action. (Ex. G 90:11-23).
While Mazzetti sought custody of his son, DCP&P continued to provide
Mazzetti certain services. These included substance abuse evaluations,
psychological and psychiatric examinations, visits with his son, parenting
classes, and a bus pass. (Ex. H 32:15-25; DE 56 66). Zapata continued to
work with both Mazzetti and D.M. (Ex. H 33:1-34:12).
At the behest of DCP&P, psychologist Dr. Barry Katz evaluated Mazzetti,
C.H., and D.M on several occasions. (Ex. C at 1). Those sessions were intended
as forensic evaluations to determine the best interest of D.M. and assess the
parenting capacity of Mazzetti and C.H. (/d. at 1, 17).
Zapata’s duties caused her, on several occasions, to cross paths with Dr.
Katz. (Ex. H 33:6-35:2). Mazzetti alleges that during these interactions Zapata
tried to poison Dr. Katz’s opinion of him (DE 56 4 40), portraying Mazzetti as a
drug user and manipulator:
[I]t was [DCP&P]’s mind to tell [Dr.] Katz, which gave him a
negative opinion on me to begin with, and then his lies during his
testimony that basically opened this all up.
(Ex. F 77:12-15). However, during his deposition, Mazzetti was at best
equivocal about the grounds for his accusation that Zapata had undermined
him with Dr. Katz:
Q. Okay. How do you know that Ms. Zapata... talked to Dr. Katz?
A. Dr. Katz told me
Q. What did he tell you?
A. Zapata told me that I was a drug addict, that I was gonna
manipulate and lie and try to manipulate him or the way he feels
about me.
Q. And did [Dr. Katz] tell you that [Zapata] saying this to him gave
him an understanding, a false understanding of you?
A. No, he did not tell me that.
Q. Okay.
A. He didn’t have to.
(Ex. F 85:1-15). The upshot of this quoted material seems to be that Mazzetti
believed Zapata thought poorly of him and assumed she must have shared that
opinion with Dr. Katz, but that Katz himself never acknowledged having had
such a conversation.
Against this equivocal account is the direct evidence of Zapata. According
to her deposition testimony, her communications with Dr. Katz on the subject
of Mazzetti consisted of the following: She faxed to Dr. Katz a case history that
included a PROMIS/ gavel report, a CIC check, the history of the case, the
reasons for DCP&P’s involvement, and the court orders. (Ex. H 33:19:23). Dr.
Katz, for his part, corroborated Zapata’s testimony that she provided him with
these documents. (Ex. C. at 19). And when asked if Dr. Katz told “the judge
that Miss Zapata had made representations to him prior to meeting” with him,
Mazzetti testified that “{nJo, he did not.” (Ex. F 88:1-4).
Zapata also spoke to Dr. Katz to schedule an appointment for D.M. (Ex.
H 34:1-24). Zapata drove D.M. to the appointment, and there spoke to Dr. Katz
about D.M.’s wellbeing, but she did not then mention Mazzetti’s alleged drug
problem or ability to care for D.M. (Ex. H 34:1-24). Dr. Katz ultimately
recommended that C.H. have full custody of D.M. and that Mazzetti complete a
psychiatric evaluation, obtain stable and appropriate housing and income,
complete a parenting course, and have limited supervised visitation until all
requirements were completed. (Ex. C at 28-29).
According to Zapata, she was not aware that Mazzetti had filed a lawsuit
against her employer. (Ex. H 20:12-20; 42:16-22). Mazzetti, on the other hand,
maintains that Zapata’s actions can only be explained if “[DPP&P was]
retaliating against ... Mazzetti for his ongoing Civil Rights action against it.”
(DE 56 40). Mazzetti conceded that he had no direct support for his claim
that Zapata knew about the lawsuit.
Q. Did [Zapata] ever give you any indication that she knew about
that lawsuit?
A. ] -- 1 -- I didn’t make anything a secret to anybody, so I’m sure
everybody in the [DCP&P] office knew me from 2007 till now.
Q. Okay. Did she ever bring it up to you specifically?
A. No, she did not.
Q. Okay. Did she ever discuss with you any of the other court
filings?
A. No.
Q. Okay.
A. Not that I know of.
Q. Okay.
A. Or remember.
Q. Is there anything else that you are alleging that Miss Zapata
did?
A, No.
(Ex. F 91:1-18). Indeed, Zapata testified that any pending lawsuits would have
had no influence over the way she handled the matter of D.M.’s custody. (Ex. H
51:24-25; 52:1-2). According to her, DCP&P’s only goal was D.M.’s wellbeing
and perhaps reunification with his birth parents. (Ex. H 52:3-6), Mazzetti says
this statement is “contrary to the record in this case.” (DE 56 { 67).
D.M. now resides with C.H., his biological mother. (DE 56 4 68; Ex H
52:3-10}. Mazzetti objects to the characterization of this as “reunification.” (Id.).
C. Procedural History
Mazzetti filed this action on December 31, 2014.6 The essence of his
complaint in its original form was that defendants denied him his parental
rights and retaliated against him for persisting in his appeals and federal civil
rights lawsuits. Mazzetti averred that his case represented but one facet ofa
DCP&P-spearheaded scheme “to place children in foster homes to obtain more
funding from the State and the United States Department of Health and
Human Services” and “to increase DYFS instigated adoptions.” (Compl. ff 210,
230-92).
The complaint contained eight counts:
1. Section 1983 claim of violations of the Fourth and Fourteenth
Amendments by DCP&P, Von Pier, Blake, Judge Mizdol, Judge Foti, and
Governor Christie, for failure to properly promulgate rules and to supervise,
train, and discipline those who committed abuses of process during their
investigation of allegations of child abuse.
2. Section 1983 and 1986 claims of violations of the Sixth and
Fourteenth Amendments by the defendants named in Count 1 for a policy or
custom of improper hiring and inadequate training that led to abuses of
process and deliberate indifference to the rights of persons including Mazzetti.
6 Mazzetti’s complaint named eleven defendants: (1) DCP&P (formerly Division of
Youth & Family Services (“DYFS”), a New Jersey child protection and welfare agency
within the Department of Children and Families; (2) Governor Christopher J. Christie
in his individual and official capacities; (3) Lisa Von Pier in her official capacity as
Director of DCP&P; (4) Allison Blake, the Commissioner of the Department of Children
and Families, in her individual and official capacities; (5) Judge Bonnie J. Mizdol, the
presiding judge of the family division for the Bergen County Vicinage of the New Jersey
Superior Court, in her individual and official capacities; (6) Judge Margaret Foti, a
judge of the family division for the Bergen County Vicinage of the New Jersey Superior
Court, in her individual and official capacities; (7) the Honorable Virginia Long, former
Associate Justice of the New Jersey Supreme Court, in her individual and official
capacities; (8) Deputy Attorney General Ellen Buckwalter in her individual capacity; □□□
Bergen County Prosecutor John Molinelli in his individual and official capacity; (10)
Kimberly Roberts, a caseworker at DCP&P, in her individual capacity; and (11) Erica
Zapata, a caseworker at DC&P, in her individual capacity. Roberts and Zapata are the
only remaining defendants.
10
3. Section 1985 claim of conspiracy by DCP&P, Governor Christie,
Judges Mizdol and Foti, Deputy Attorney General Buckwalter, Roberts, Zapata,
Justice Long, and Prosecutor Molinelli to commit abuses of process.
4. Section 1983 claim by the defendants named in Count 3 for violations
of Mazzetti and D.M.’s rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments for policies, practices, acts, and omissions that excessively
interfered with Mazzetti’s fundamental rights to privacy and freedom to raise a
family.
5. Section 1983 claim by the same defendants named in Count 3 for
violations of Mazzetti and D.M.’s rights under the First, Fourth, Sixth, Eighth,
and Fourteenth Amendments for depriving Mazzetti of his due process rights,
his rights to be free from excessive interference with family relationships, and
his rights to speak freely about the defendants’ conduct.
6. Section 1983 claim by the defendants named in Count 3 for violations
of Mazzetti and D.M.’s rights under the First and Fourteenth Amendments for
retaliating against Mazzetti’s opposition to defendants’ unlawful conduct and
depriving him of equal protection of the law.
7. Claim of violations of Mazzetti’s rights under Title II of the American
with Disabilities Act, 42 U.S.C. §§ 12131-12165, by the defendants named in
Count 3 for failing to provide Mazzetti with services to protect his rights and
using his disability as a means to deprive him of those rights.
8. A habeas corpus petition under 28 U.S.C.§ 2254. Mazzetti demanded
that defendants either demonstrate lawful jurisdiction and custody over D.M or
return D.M. to his custody.
On April 1, 2015, defendants moved to dismiss the complaint under
Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P. That motion asserted lack of
jurisdiction, immunity as to various defendants, and failure to state a claim.
On March 27, 2017, I granted in part and denied in part that motion to
dismiss. Specifically, | dismissed with prejudice the following:
e Counts I and 2, for lack of standing;
14:
Counts 3, 4, 5, and 6 against defendant DCP&P, on sovereign
immunity grounds;
e Counts 3, 4, 5, and 6, against defendants Governor Christie, Judge
Foti, Judge Mizdol, Deputy Attorney Buckwalter, Justice Long, and
Prosecutor Molinelli, on sovereign immunity and absolute
immunity or qualified immunity grounds;
e Counts 4 and 5 against defendants Roberts and Zapata, on
qualified immunity grounds; and
Count 8, for lack of habeas jurisdiction.
1 dismissed without prejudice the following:
e Count 3, against Roberts and Zapata, for failure to state a claim;
and
e Count 7, for failure to state a claim.
Because the parties did not brief several fact-sensitive elements of
Mazzetti’s First Amendment retaliation claim and the qualified immunity
defense, I denied the motion to dismiss with respect to Count 6 (First
Amendment retaliation) as to defendants Roberts and Zapata.
The only remaining claims concern events that occurred starting when
Linda was hospitalized and D.M was removed from her home. The only
remaining defendants, Roberts and Zapata, had no involvement in the case
before then. Mazzetti’s sole surviving claim alleges that Roberts and Zapata,
angered by his earlier lawsuit against DCP&P, retaliated against him in
connection with the emergency removal of D.M. on July 1, 2014, and his loss of
custody of D.M.
Il, Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In
12
deciding a motion for summary judgment, a court must construe all facts and
inferences in the light most favorable to the nonmoving party. See Boyle v. Cty.
of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the
burden of establishing that no genuine issue of material fact remains. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “[W]ith respect to an
issue on which the nonmoving party bears the burden of proof. . . the burden
on the moving party may be discharged by ‘showing——that is, pointing out to
the district court—that there is an absence of evidence to support the
nonmoving party’s case.” Id. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). The opposing party must present actual evidence that
creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at
see also Fed. R. Civ. P. 56(c) (setting forth the types of evidence on which
a nonmoving party must rely to support its assertion that genuine issues of
material fact exist). “[U]nsupported allegations .. . and pleadings are
insufficient to repel summary judgment.” Schoch v. First Fid. Bancorp., 912
F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243 F.3d
130, 138 (3d Cir. 2001) (“A nonmoving party has created a genuine issue of
material fact if it has provided sufficient evidence to allow a jury to find in its
favor at trial.”). If the nonmoving party has failed “to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial, . . . there can be ‘no
genuine issue of material fact,’ since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 n.5 (3d Cir.
1992) (quoting Celotex, 477 U.S. at 322-23).
13
Ill. Discussion
A. First Amendment Retaliation
The First Amendment retaliation claim against Zapata and Roberts
recasts many of the claims dismissed earlier in this lawsuit. Mazzetti alleges
that Roberts illegally took D.M. from Linda’s home in July 2014, and that
Zapata made false statements to the Child Protection Review Board and to Dr.
Barry Katz, the doctor who evaluated him and C.H. and D.M. He generally
avers that these actions were taken in retaliation for his lawsuits against
DCP&P, as well as his attempt to instigate investigations into DCP&P practices.
The First Amendment enshrines the right of the people to petition the
government for redress of grievances. U.S. CONST. amend I. When that right is
infringed upon by state—as opposed to federal—officials, Section 1983 of the
Civil Rights Act of 1871 provides a remedy:
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. For the
purposes of this section, any Act of Congress applicable exclusively
to the District of Columbia shall be considered to be a statute of
the District of Columbia.
42 U.S.C. § 1983.
“In order 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 fitness 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). The first element is a matter of law; the second two are
14
questions of fact. See Baldassare v. New Jersey, 250 F.3d 188, 195 (3d Cir.
2001).
Mazzetti asserts a claim of First Amendment retaliation:
Defendants’ conduct in threatening to remove D.M. from the care
of his family and place him with a stranger foster family if [he]
continue[d] to pursue his rights against [DCP&P] was done solely
in retaliation for Plaintiff's exercise of his rights to due process and
his First Amendment rights in communicating seeking
investigation of Defendants’ actions.
(DE 1 1273). Specifically, Mazzetti continues, Roberts and Zapata punished
him for seeking relief in court. Finally, he alleges that Roberts and Zapata
willfully and purposely acted with the specific intent of depriving him of his
rights.
Filing a civil rights lawsuit is constitutionally protected conduct, easily
satisfying the first element. See Anderson v. Davila, 125 F.3d 148, 161 (3d Cir.
1997). Interference with a parent’s custody of a minor child is certainly enough
to deter a person of ordinary firmness from exercising his constitutional rights,
satisfying the second element. Thus the viability of Mazzetti’s case turns on his
satisfaction of the third element. To survive summary judgment he must
demonstrate a causal link between his lawsuit and the defendants’ allegedly
retaliatory removal of D.M from Linda’s home. It is with respect to the third
element of the retaliation claim—ie., a causal link between the plaintiff's
constitutionally protected conduct and the state employees’ actions—that the
problem arises.
As evidence of a causal, retaliatory link, Mazzetti points to his own
deposition testimony. During the emergency removal, he says, Roberts told him
that “[s]he’s DYFS, she could do what she wants, there’s nothing [he] could do
about it. If [he] keep[t] it up, [he would] never see [D.M] again.” (Ex. F 71:6-9).
These statements, if they occurred, might be regarded as threatening or
unprofessional, but they give no indication that Roberts knew about or was
acting in retaliation for a lawsuit.
15
Mazzetti’s opposition brief does little to add content to these assertions.
He merely states in conclusory terms that Zapata and Roberts must have
known about his lawsuit:
While Zapata and Roberts have denied knowledge of Dennis
Mazzetti’s federal lawsuit, this is not credible. Dennis Mazzetti’s
lawsuit had received media coverage and involved the same DCP&P
office in which Zapata and Roberts worked. No reasonable
explanation was given for the continued violation of Dennis
Mazzetti’s Constitutional Rights by Zapata and Roberts, and they
were clearly a result of retaliatory conduct.
(DE 57 at 9).
However, the DCP&P local office manager—not Roberts or Zapata—
ordered D.M.’s removal from Linda’s home. And two days later, at the Order to
Show Cause hearing, Judge Mizdol of the Family Part found that the removal
had been justified and necessary. There is no evidence—nor does Mazzetti now
allege—that Judge Mizdol was aware of his ongoing lawsuit when she issued
the ruling.” To the contrary, Judge Mizdol’s findings of fact demonstrate that,
far from being retaliatory, her ruling and DCP&P’s removal were justified
responses to Mazzetti’s inability to care for his young child.
For that matter, even if Roberts or Zapata had been a decisionmaker, the
evidence in the record does not create a genuine dispute of material fact as to
whether Roberts’s removal of D.M. from Linda’s home was done for retaliatory
reasons. Nor does it show that Zapata took any retaliatory action. Each
testified that she did not know about Mazzetti’s lawsuit until after the allegedly
retaliatory conduct took place. Mazzetti acknowledged under oath that Zapata
7 At this point, Mazzetti no longer had any legal parental rights to D.M. as those
rights had been terminated in a 2012 proceeding before a different Family Part judge.
The July 2014 hearing before Judge Mizdol concerned the custody rights of Linda and,
by proxy, David, whom Linda had designated as D.M.’s primary caretaker in her
absence.
However, by the time the hearing took place, Linda had already informed DCP&P
that she did not have the energy or ability to care for D.M. and David had recently tested
positive for a several controlled substances and was himself only several days removed
from a hospital stay.
16
and Roberts never indicated that they had any knowledge of the lawsuit.
Mazzetti offers only that the press coverage of his lawsuit must have alerted
them both to its existence. (The record, by the way, contains no evidence of
such coverage.) Such generalities are insufficient to create a genuine dispute
for trial.
Mazzetti offers more generally, and unconvincingly, that Roberts and
Zapata’s actions must have been retaliatory because there is no other way to
explain them. (See DE 56 40; see also DE 57 at 9 (there was “no explanation”
for the removal of D.M.}). The evidence is all to the contrary; they had ample
reason to act as they did in removing D.M. from the home.
I will nevertheless go a step farther and assume arguendo, contrary to
the evidence, that Roberts and Zapata were the relevant decisionmakers and
that there is evidence that they knew about the lawsuit. Even so, summary
judgment in their favor would be appropriate, because the non-retaliatory basis
for defendants’ actions, based on the best interest of D.M., is manifest. “A
defendant may defeat the claim of retaliation by showing that it would have
taken the same action even if the plaintiff had not engaged in the protected
activity.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.
2007). A fortiori, a defendant may defeat the claim by demonstrating that
someone else was responsible for the alleged retaliatory actions, based on an
independent evidentiary record.
Such an independent evidentiary record exists here. At the time of the
2014 removal, Mazzetti’s parental rights had been terminated two years earlier,
in 2012, by a trial court judge. In that earlier proceeding, a different DCP&P
worker testified that Mazzetti had failed to plan for D.M.’s future despite his
physical and financial ability and that he had abandoned D.M. to the care of
others.
Immediately after the 2014 removal, Judge Mizdol ruled that D.M.’s
removal had been necessary for his wellbeing. At this hearing, Roberts was
present (though Zapata was not). The hearing was also attended by a law
i7
guardian, Deputy Attorney General Buckwalter, Linda, David, and C.H.’s
attorney. Roberts could not have unilaterally influenced the judge’s ruling even
if she had wanted to. Indeed, Judge Mizdol’s findings make clear that the
removal was justified. The order noted that Mazzetti tested positive for cocaine
on numerous occasions and that he had a history of psychiatric instability. He
had repeatedly failed to cooperate with court-ordered services and failed to
obtain and maintain stable housing for himself and D.M. Judge Mizdol’s
findings are clear that neither Mazzetti nor his brothers could maintain a
stable home environment for D.M. In short, it is not necessary to posit
retaliation as a basis for removal of D.M.
As an alternative to direct evidence of a causal link, a plaintiff can rely on
circumstantial evidence that a defendant’s acts were inspired by a retaliatory
motive. Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016). Such indirect
evidence may consist of either “(1) an unusually suggestive temporal proximity
between the protected activity and the allegedly retaliatory action, or (2) a
pattern of antagonism coupled with timing that suggests a causal link.” Id.
Thus, where the timing alone is not “unusually suggestive” of retaliatory
motive, the plaintiff must set forth other evidence to establish a causal link.
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997).
Here, Mazzetti has not shown temporal proximity. Indeed, Roberts’s and
Zapata’s allegedly retaliatory conduct occurred years after Mazzetti filed his
lawsuit against the agency (although not against them).§ Nor has he shown
antagonism coupled with other evidence of a causal link. Here, too, the claim
runs up against the fact that the relevant decision makers were the state court
system and Roberts’s local office manager. DCP&P and the Family Part acted
based on, inter alia, evaluations by mental health professionals. Rather than
suggesting a pattern of antagonism, the record indicates a continued effort by
DCP&P to reunite D.M. with his biological parents, Mazzetti and C.H. For
example, DCP&P provided Mazzetti with substance abuse evaluations,
8 The lawsuit was concededly still pending, however.
18
psychological and psychiatric evaluations, visits with his son, parenting
classes, and a bus pass. Consequently—even if defendants had possessed
knowledge of the lawsuit and made the relevant decisions—Mazzetti’s proof of a
causal link between his lawsuit and the denial of his parental rights would fail.
Consider also the circumstances of the removal itself. At the time, the
evidence reveals, D.M.’s three potential caretakers were Mazzetti—whose rights
had been terminated; Mazzetti’s brother Daniel—whose own child was in
kinship legal guardianship; and David—who had days earlier tested positive for
opiates, PCP, benzodiazepines, and amphetamines. It simply cannot be said
that these circumstances compel or even suggest an inference that “retaliation”
must have been the basis for the removal.
For all of these reasons, I will grant sammary judgment in favor of
defendants on plaintiff's First Amendment retaliation claim.
B. Qualified Immunity
Even if Mazzetti’s First Amendment retaliation claim were meritorious,
Roberts and Zapata would be entitled to qualified immunity.
Qualified immunity protects government officials from insubstantial
claims in order to “shield officials from harassment, distraction, and liability
when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,
231 (2009). “When properly applied, it protects ‘all but the plainly incompetent
or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743
(2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). To overcome
qualified immunity, a plaintiff must plead facts “showing (1) that the official
violated a statutory or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Jd. at 735. The Court has
discretion to analyze the steps in either order. Pearson, at 236 (partially
overruling Saucier v. Katz, 533 U.S. 194, 201 (2001), and no longer requiring
courts to determine issues (1) and (2) in that order).
The doctrine exists to shield government officials performing
discretionary functions “from civil damages liability as long as their actions
19
could reasonably have been thought consistent with the rights they are alleged
to have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). In other
words, the immunity grants officials “breathing room to make reasonable but
mistaken judgments about open legal questions,” thereby protecting “all but
the plainly incompetent or those who knowingly violate the law.” al-Kidd, 563
U.S. at 743.
An official’s conduct “violates clearly established law when, at the time of
the challenged conduct, the contours of a right are sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.” al-Kidd, 563 U.S. at 741 (citations omitted). To determine the
“contours” of the right at issue, the al-Kidd Court held that absent “controlling
authority,” “robust consensus of cases of persuasive authority” must have
placed the statutory or constitutional question confronting the officials “beyond
debate.” Id. at 741-42. In this regard, the Court has repeatedly cautioned
lower courts “not to define clearly established law at a high level of generality . .
. since doing so avoids the crucial question whether the official acted
reasonably in the particular circumstances that he or she faced.” Plumhoff v.
Rickard, 572 U.S. 765, 779 (2014) (citations and internal quotations omitted).
Consistent with this admonition, the Supreme Court has recently devoted
much attention to the “clearly established” prong of the qualified immunity
analysis and has reversed several lower courts that either distilled a “clearly
established” right from inapposite precedent, or defined the right too generally
to place government officials on sufficient notice. See City and Cty. of San
Francisco v. Sheehan, 135 S. Ct. 1765 (2015); Taylor v. Barkes, 135 S. Ct. 2042
(2015); Carroll v. Carman, 135 S. Ct. 348 (2014); Plumhoff, 572 U.S. 765,
Stanton v. Sims, 571 U.S. 3 (2013); Reichle v. Howards, 566 U.S. 658 (2012);
al-Kidd, 563 U.S. 731 (2011). To overcome qualified immunity the plaintiff
bears the burden of showing both that her constitutional rights were violated,
and that the rights violated were clearly established. Mammaro v. N.J. Div. of
Child Protection & Permanency, 814 F.3d 164, 168-69 (3d Cir. 2016).
20
In the context of First Amendment retaliation, qualified immunity
depends on “whether officials reasonably could believe that their motives were
proper even when their motivations were in fact retaliatory.” Larson v. Senate of
Commonwealth, 154 F.3d 82, 94 (1998). This type of inquiry ordinarily cannot
be determined on the face of the pleadings and can only be resolved after
factual inquiry. Id.
Here, we have a full factual record. Roberts and Zapata are entitled to
qualified immunity because the evidence produced during discovery shows that
they could have reasonably believed that their motives were proper. Equally
important, Mazzetti’s discovery materials yielded no evidence that moved the
needle in his favor. Instead, his claim relies on allegations that merely restate
the conclusory assertions in his complaint and carry no evidentiary weight.
1. Kimberly Roberts
Mazzetti alleges that Roberts retaliated against him by executing the
emergency removal of D.M. after Linda could no longer care for him. To the
contrary however, after receiving D.M.’s case, Roberts met with her supervisor
and local office manager, who then issued the decision to remove D.M. from
Linda’s care. Roberts did not make that decision.
Here, I repeat that at the time of the removal, D.M.’s three potential
caretakers were Mazzetti—whose parental rights had been terminated;
Mazzetti’s brother Daniel—whose own child was in kinship legal guardianship;
and David—who had days earlier tested positive for opiates, PCP,
benzodiazepines, and amphetamines. In such circumstances, Roberts
reasonably believed that both her motives and her actions were professional
and proper.
Roberts testified that at the time the decision was made to remove D.M.,
she was not aware that Mazzetti had pending a federal civil rights suit against
DCP&P. Moreover, Roberts did not learn of the lawsuit until after her
involvement in the case—which in any event, lasted only approximately sixty
days. Finally, at the order to show cause hearing, the Family Part held that
that D.M.’s removal was necessary to avoid an ongoing risk to his life, safety, or
21
health. The court’s affirmance of the emergency removal only underscores that
Roberts, who is neither a lawyer nor a judge, could have believed that her
motives were proper and justified. She is thus entitled to summary judgment
on the qualified immunity issue.
2. Erica Zapata
Mazzetti contends that Zapata told Dr. Katz that Mazzetti was a drug
addict who would try to manipulate him and lie to him. He claims that Katz
acknowledged this in a conversation.
Zapata testified that she merely provided Dr. Katz with the case history
by faxing the file to him and otherwise had little contact with him. Indeed, she
spoke to him on the phone only to schedule D.M.’s appointment. Afterward she
and Dr. Katz briefly discussed D.M.’s condition in-person when she dropped
D.M. off for his. Dr. Katz’s report corroborates this account: “DCPP provided
background information.”?
In short, the evidence adduced during discovery does not advance
Mazzetti’s assertion that Zapata acted in a manner that was clearly out of
bounds, as required by the qualified-immunity standard. In fact, it does the
opposite. Like Roberts, Zapata testified that she was unaware of the lawsuit
pending against DCP&P and that even if she had known about it, it would have
had no influence over her conduct. Thus, whether it occurred or not, her
alleged statement of opinion to Dr. Katz (a) could not have been retaliatory (the
claim here) and (b) could reasonably have been seen as part of her duty to
furnish relevant information to Dr. Katz.
Nor did Zapata demonstrate a malign or retaliatory motive in any other
way. She concededly furnished social services to Mazzetti and C.H., placing
both in a stronger position to regain custody of D.M. Indeed, DCP&P’s stated
9 The background information included a PROMIS/gavel report on Mazzetti, a
CIC check, the history of the case, the reasons for DCP&P’s involvement, and the court
orders. This information was thus relevant and truthful, not defamatory. Furnishing
such background information was surely reasonably perceived by Zapata to be within
the scope of her lawful duties.
22
goal of reunification was ultimately achieved; D.M. now resides with his
mother, C.H.
This record clearly establishes that Zapata reasonably believed she was
acting properly (and indeed was acting properly) and is thus entitled to
summary judgment on the qualified immunity issue.
IV. Conclusion
For the reasons set forth above, I will GRANT defendants’ motion for
summary judgment on behalf of Kimberly Roberts and Erica Zapata,
An appropriate order follows.
Dated: September 4, 2019 ;
Hon. Kevin McNulty
United States District Judge
23