Nicini v. Morra

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

5-19-2000

Nicini v. Morra

Precedential or Non-Precedential:

Docket 98-5193

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Filed May 19, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 98-5193

ANTHONY NICINI, JR.,

Appellant

v.

EDWARD MORRA; NEW JERSEY DEPARTMENT OF

HEALTH AND HUMAN SERVICES, DIVISION OF YOUTH

AND FAMILY SERVICES; FRANK CYRUS; JOHN DOE(S),

a fictitious person or persons; XYZ ENTITY (IES),

a fictitious entity or entities

FRANK CYRUS,

Appellee

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 95-cv-02303)

District Judge: Hon. Jerome B. Simandle

Argued January 26, 1999

Before: SLOVITER, McKEE, and RENDELL, Circuit Judges

Reargued En Banc February 16, 2000

Before: BECKER, Chief Judge, SLOVITER, MANSMANN,

GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH,

McKEE, RENDELL, and BARRY, Circuit Judges

(Filed: May 19, 2000)

Joseph P. Grimes (Argued)

Grimes, Grimes, Grimes & Grimes

Cherry Hill, New Jersey 08034

Counsel for Appellant

Peter Verniero

Attorney General of New Jersey

Mary C. Jacobson (Argued)

Assistant Attorney General

Of Counsel

Yolanda C. Rodriguez

Deputy Attorney General

On the Brief

Trenton, New Jersey 08625

Counsel for Appellee,

Frank Cyrus

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Anthony Nicini, Jr., filed suit under 42 U.S.C.S 1983 and

state tort law against Frank Cyrus, a Family Services

Specialist with the New Jersey Department of Human

Services, Division of Youth and Family Services ("DYFS"),

and other defendants, alleging they violated his

constitutional rights because he was abused by the person

with whom he was staying while in DYFS custody. The

District Court, which had earlier dismissed all claims

against the other defendants and the official capacity claim

against Cyrus, granted summary judgment in favor of

Cyrus on the section 1983 claim and state tort law claims

against him in his individual capacity, holding that the

facts of record did not establish a constitutional violation.

Nicini appeals.

I.

FACTS

In February 1990, fifteen-year-old Anthony Nicini, Jr.,

was admitted to the John F. Kennedy Hospital's Crisis

2

Center (JFK) after an apparent suicide attempt. DYFS

became involved when JFK notified it of Nicini's allegations

that his father had physically abused him. Two DYFS

caseworkers responded to JFK, and Nicini told them that

he was afraid of his father, who "punches a lot" and

"always hits with closed fist." App. at 212. Nicini also said

that he had attempted suicide before. DYFS notified the

prosecutor's office of Nicini's allegations and assisted his

mother in obtaining a temporary restraining order against

Nicini's father. DYFS also assigned caseworker Frank Cyrus

to Nicini's case.

Nicini continued to have difficulty at home and in school.

According to a DYFS report dated September 27, 1990,

Nicini slashed his wrists that month in an apparent suicide

attempt and thereafter left home after an argument with his

mother. The report states that Nicini "has no where to go

and needs placement." App. at 214. DYFS was informed on

October 9, 1990, that Nicini was not at school and that he

had previously told the assistant principal that he would

not return home.1 On October 10, 1990, DYFS received a

call from the police in Cherry Hill, New Jersey, that Nicini

had been located and that he had repeated his refusal to

return home and again stated that his father was abusive.

Ex. at 28. That same day, a DYFS caseworker contacted

Nicini's mother, who said that she did not want Nicini to

return home, and his father, who could not identify any

relatives with whom Nicini could stay. Nicini's father came

to DYFS to sign a foster care placement agreement. 2

_________________________________________________________________

1. See Exhibits to Nicini's Brief in Opposition to Summary Judgment at

27 [hereafter "Ex."].

2. Although the parties have not educated us as to the meaning of this

agreement, it appears that "[a] child may come into the custody of

[DYFS] and be placed in foster care pursuant to either a voluntary-

placement agreement or a court order." Matter of Guardianship of J.C.,

129 N.J. 1, 7, 608 A.2d 1312, 1314 (1992); see also N.J. Stat. Ann.

S 30:4C-11 (parent may apply for DYFS to "accept and provide such care

or custody as the circumstances . . . may require"); Monmouth County

Div. of Social Servs. on Behalf of DYFS v. C.R., 316 N.J. Super. 600, 603-

05, 720 A.2d 1004, 1006-07 (N.J. Super. 1998) (describing placement

pursuant to agreement whereby parents consented to DYFS placing child

in foster care but retained their "parental rights and legal

responsibilities," retained the right to terminate the agreement and ask

for their child's return, and agreed to make payments for the child's

care).

3

DYFS placed Nicini in the foster home of Dennis Armento

but Nicini ran away on or before November 2, 1990. After

Nicini was located, his aunt, Catherine Livingston, agreed

to DYFS's request that Nicini stay with her. On or before

December 31, 1990, Nicini ran away once again. Livingston

had apparently become ill and DYFS arranged for Nicini to

stay with Bonnie Nicini, another aunt. Cyrus then arranged

that Nicini be evaluated by a psychiatrist, Dr. Charles

Trigiani. Dr. Trigiani was unsure after Nicini'sfirst

appointment on January 3, 1991, whether Nicini required

inpatient psychiatric care but agreed to recommend Nicini's

evaluation at JFK. On January 10, 1991, Cyrus informed

Nicini's mother of Dr. Trigiani's recommendation and

requested that she bring Nicini to JFK.

What happened thereafter is not clear from the record or

the appendices submitted with the parties' briefs, but

apparently Nicini was not admitted to JFK at that time.

However, a DYFS report dated January 30, 1991 notes that

Nicini was at JFK Hospital with an infected hand and might

require admission to treat the infection. Bonnie Nicini

reportedly stated that the plan was to hospitalize Nicini for

depression. The report also states that when the hospital

sought consent from Nicini's mother for his treatment, she

refused and claimed he was in DYFS custody. At some

point thereafter, Nicini was transferred to JFK's psychiatric

unit for evaluation. On February 5, 1991, DYFS learned

that Nicini had run away from the psychiatric unit after

JFK recommended the possibility of admitting Nicini to

treat his depression.

Nicini ran to the home of Edward and Dolores Morra in

Cherry Hill, New Jersey. Nicini's older brother Danny had

gone to school with their children and had stayed with

them while experiencing similar family problems. On

February 9, 1991, the police notified DYFS that they had

located Nicini at the Morra home. According to a DYFS

incident report, Nicini had been taken to JFK but was

"ready for discharge." Ex. at 72. A DYFS caseworker (not

Cyrus) contacted Catherine Livingston, who stated that she

had known Nicini was at the Morra home and that she

would not permit him to return to her home. The

caseworker then spoke to Nicini's father, who expressed his

4

belief that the Morras were "not [a] good placement but

[who] agreed to weekend placement." Ex. 69 (emphasis in

original). After being given the option of taking Nicini home

or locating a relative with whom Nicini could stay, Nicini's

father told the caseworker to speak to Livingston. She, of

course, had already refused to take Nicini back.

The caseworker then permitted Nicini, who "was refusing

to go anywhere else," Ex. at 69, to return to the Morra

home that day, Saturday, February 9, 1991. The incident

report states that "Frank Cyrus will contact[the Morras] on

Monday [February 11]." Ex. at 70.

Between February 9, 1991 and February 28, 1991, Cyrus

visited Nicini twice at the Morra home. He also had

telephone contacts with Nicini and the Morras. App. at 226.3

Cyrus's first visit was apparently on Monday, February 11,

1991. App. at 250 (expert report). It was Cyrus's overall

impression that "everything was positive," App. at 226-27,

and that everything "point[ed] towards[Nicini] doing well

there and becoming stabilized and progressing . . . ," App.

at 228. Additionally, a counselor from an outreach center

visited Nicini once a week at the Morra home. During that

same time period, Cyrus performed a perpetrator ("PERP")

check on the Morras, which would have revealed any

criminal record of sexual abuse in the state of New Jersey,

including any reports of such abuse to DYFS. The PERP

check revealed nothing.

Cyrus interviewed the Morras during a home visit. He did

not remember asking whether they had ever had any

contact with any law enforcement agency but he recalled

asking Edward Morra if anything would prevent him from

becoming a foster parent, and Morra replied in the negative.

On February 28, 1991, Nicini appeared at a hearing

before the Honorable Vincent D. Segal in the Family Part of

_________________________________________________________________

3. The statements in this and the following paragraph are taken from

Cyrus's deposition. Only some portions of that testimony have been

provided to us; others are summarized in the report of Dr. Eliot Atkins,

a forensic psychologist retained by Nicini in this litigation. We

designate

the latter by "expert report." Neither party has suggested that Dr.

Atkins's summary is inaccurate in this respect.

5

the Chancery Division of the Superior Court of New Jersey.

Although the record does not make clear the purpose of the

hearing, the proceedings were apparently related both to

certain criminal conduct by Nicini and to where he should

be placed. As a result of the hearing, Judge Segal

sentenced Nicini to two years probation and also concluded

that Nicini should remain with the Morras.

Cyrus was present and testified at the hearing along with

Nicini, Nicini's mother, and Catherine Livingston, Nicini's

aunt. Also present were the Assistant Prosecutor for

Camden County, New Jersey, and Ronald DeSimone, an

attorney representing Nicini. Cyrus informed the court of

Nicini's prior placements and that Nicini:

is currently with a friend and the family, the Morra

family.4 He's not with a foster family. Tony was with

the foster family initially, Mr. Dennis Armento, and he

left the home unofficially . . . .

. . . .

Tony found his way to the Morras, who I guess was a

friend of his. The Morras indicated they would -- they

knew him, they liked him and they wouldn't mind him

staying there. He's been there now for a couple of

weeks. They have indicated that he's doing very well

there, no problems. But that is not an official foster

home, that's an unofficial home.

App. at 154-55.

In response to the court's query whether the Morras

would qualify as para-foster parents, Cyrus stated:

Yes they would, your Honor. We've -- so far the only

thing I've done is a perp check, perpetrator check, and

there's nothing that's come up. There's no -- nothing

we've seen in terms of any problem with the law.

Although I think, and Mrs. Nicini can speak for herself,

I think she has some objections about it on a full time

basis. But the family seems to show an interest

_________________________________________________________________

4. The Morras are referred to throughout the transcript of the hearing as

the Moores, which, we presume, reflects an error in transcription. We

have therefore substituted the correct name.

6

towards Tony, they have said they wouldn't mind

keeping him -- keeping him on a temporary basis. He

has been stable since he's been with them. But like I

say that's -- right now they are not an official foster

family, although I'm sure they would -- they would

apply for para-foster custody if the parents are willing

to let them.

App. at 156-57.

When Judge Segal asked Nicini's mother for her

comments, she stated as to the Morras:

[T]hey have harbored my oldest son on several

occasions when he had taken off . . . . I don't know

them personally, only -- only what I had heard. My

oldest daughter knows -- goes to school with kids that

are friends with Eric Morra, their son, which I believe

is 16 or 17, and I've been told that he's into drugs. I

don't know if it's true or not, but it's just what I've

heard. I don't know, something just seems strange

about these people, why they would -- if they don't

know Tony, why they would even take him in.

App. at 158.

Nicini's attorney suggested to the court, in light of these

concerns, that Nicini "should also be monitored for drugs

periodically and -- and maybe something should be looked

in with this Morra family, in light of what Mrs. Nicini had

said I think maybe a closer investigation on whether or not

that's an appropriate placement . . . ." App. at 163.

Nicini's own testimony regarding his stay with the Morras

was positive. After recounting the difficulties he experienced

with his parents and with his prior placements, Nicini

described his relationship with the Morras:

I don't love them or anything, but they're people I can

talk to. I mean ever since I been there almost every

night I've been up talking to Mr. Morra, his name is

Ed. I've been up most of the time talking to him about

how I feel about my parents and the way I've been

living and how I've been treated and all.

App. at 164. Nicini also told Judge Segal that the Morras

were tutoring him until he was re-enrolled in school.

7

Judge Segal then summarized the history of physical

abuse at the hands of Nicini's father and summarized a

report prepared by Nicini's outreach counselor (not Cyrus),

which stated that Nicini was no longer suicidal and had

made a "fine adjustment to the location where he's

presently located." App. at 166. Judge Segal ruled that

Nicini would "come[ ] under the care and supervision" of

DYFS, that he would remain with the Morras "for so long as

[DYFS] thinks that's an appropriate placement," App. at

167, and that "[u]nder no circumstances is[DYFS] to return

the boy to the home of his parents without the authority of

the Court," App. at 169. Judge Segal specifically declined to

order drug monitoring despite the request of Nicini's

attorney because there was no indication that drugs were

involved in the matter.

The record is once again sparse regarding the time period

after the February 28, 1991 Family Court hearing. On

March 11, 1991, less than two weeks after the hearing,

Cyrus forwarded to the Morras an application to become

para-foster parents. The para-foster application process, as

summarized in Cyrus's letter to the Morras, requires

completion of an application form, a financial statement, an

authorization for release of information, a police reference

form, and an agreement between the state of New Jersey,

DYFS, and the foster parent. The applicant must also

schedule a visit to DYFS for fingerprinting, and DYFS

conducts a Home Study Evaluation. The applicant's

fingerprints are used to conduct a National Crime Institute

Check (NCIC). The Morras never returned the application,

and, as we know from hindsight, there was no opportunity

for Cyrus to follow up.

On March 15, 1991, four days after Cyrus sent the

application to the Morras, Nicini fled the Morra home. He

later told investigators that since the second or third day of

his arrival there, Edward Morra had been providing him

with drugs and alcohol and assaulting him sexually.

Further investigation revealed that Edward Morra had been

convicted in New York in 1975 for corrupting the morals of

a minor and for distribution of controlled substances to

minors.5 In March 1994, following the events described

_________________________________________________________________

5. The record does not reveal the exact nature of Edward Morra's New

York conviction. Nicini's brief on appeal characterizes it as corrupting

8

here, Edward Morra was convicted in New Jersey of sexual

assault and is currently serving a forty-year state prison

term with a period of parole ineligibility of twenty years.

On May 19, 1995, Nicini filed suit in the United States

District Court for the District of New Jersey against Edward

Morra, the New Jersey Department of Human Services

("DHS"), DYFS, and Cyrus. Nicini alleged a substantive due

process violation pursuant to 42 U.S.C. S 1983 and various

state tort law violations. In particular, Nicini alleged that

Cyrus "had actual and/or constructive knowledge" of

objections by Nicini's parents that "awarding custody to

defendant, Edward Morra, was inappropriate in that .. .

[he] permitted illicit narcotic and alcoholic use by minors at

his residence." App. at 136, 137. Nicini also alleged that

Cyrus "failed to fully and properly investigate the

background of Morra before [placing him] . . . in Morra's

care" and that Cyrus "had access to or could have

requested an authorization from Morra to conduct a

criminal record background check." App. at 137. Nicini

further alleged that DHS and DYFS had a policy and

practice that "no criminal background check would be

conducted of voluntary guardians of children in the custody

of defendants if the guardian was a resident of the State of

New Jersey." App. at 140.

By order dated May 29, 1996, the District Court

dismissed all claims against DHS, DYFS, and Cyrus in his

official capacity based on Eleventh Amendment immunity.

Although Nicini's complaint did not explicitly seek damages

against Cyrus in his individual capacity, the court

construed it as stating such a claim. The court held that

Cyrus was not entitled to Eleventh Amendment immunity

and denied his requests for absolute and qualified

immunity on the section 1983 claim. The court also held

_________________________________________________________________

the morals of a minor and distributing controlled substances to minors.

Nicini's complaint in this action, however, alleges Morra was convicted of

sexual abuse of a minor, endangering the welfare of a minor, and

distributing illicit drugs to a minor. The District Court's opinion

describes Morra's conviction as for endangering the welfare of a child.

The precise nature of Morra's conviction is irrelevant to the result we

reach.

9

that Cyrus's request for immunity under New Jersey law as

to Nicini's state law claims was premature.

After discovery, Cyrus moved for summary judgment. In

support, he submitted an affidavit in which he stated that

he conducted a PERP check with the DYFS Central registry

as required by DYFS policy when a child is in a home

which is not a DYFS placement, that the PERP check

revealed no criminal information regarding the Morras, and

that a more complete criminal background check was

unavailable to him at that time. Nicini filed no counter

affidavit with respect to those averments.

In an order dated October 29, 1997, the District Court

granted summary judgment for Cyrus, holding that Nicini

had failed to establish a constitutional violation and that

his state law claims were barred by qualified immunity

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

seq. The court found, inter alia, that"DYFS policies only

require a PERP check of families not associated with the

state foster care program, and Cyrus conducted such a

check." Nicini v. Morra, Civ. No. 95-2303, slip op. at 13

(D.N.J. Oct. 29, 1997) [hereafter "Slip op"]. The court held

that the facts adduced by Nicini, even when viewed most

favorably to him, failed to demonstrate that Cyrus"knew or

suspected the threat of sexual abuse which awaited plaintiff

in the Morra home." Slip op. at 15. The court held that, at

most, Cyrus was negligent and that negligence was

insufficient to establish section 1983 liability or to defeat

the New Jersey statutory immunity.

Nicini's claims against Edward Morra proceeded and, on

February 11, 1998, the court granted Nicini's motion for a

default judgment against Morra. The case was then referred

to a Magistrate Judge to conduct a hearing to determine

the amount of Nicini's damages. In an order dated March 6,

1998, the Magistrate Judge entered judgment by default

against Morra and awarded Nicini $500,000 in

compensatory and $500,000 in punitive damages. The

Magistrate Judge, pursuant to the District Court's orders of

May 29, 1996 and October 29, 1997, also entered judgment

in favor of the other defendants.

Nicini appealed from the order of March 6, 1998.

Although his notice of appeal stated his intent to challenge

10

the court's May 29, 1996 order dismissing the claims

against DHS, DYFS, and Cyrus in his official capacity, as

well as the court's October 29, 1997 order granting

summary judgment in favor of Cyrus in his individual

capacity, Nicini has limited his challenge before us to the

latter order. We have jurisdiction to review thefinal order of

the District Court pursuant to 28 U.S.C. S 1291.

II.

STANDARD OF REVIEW

We review an order granting summary judgment de novo,

applying the same standard used by the District Court. See

Sheet Metal Workers' Int'l Assoc. Local 19 v. Herre Bros.,

Inc., 201 F.3d 231, 239 (3d Cir. 1999). We may affirm the

District Court on any grounds supported by the record. See

Hedges v. Musco, 204 F.3d 109, 116 (3d Cir. 1999).

Summary judgment is proper where the pleadings,

depositions, answers to interrogatories, admissions, and

affidavits show there is no genuine issue of material fact

and that the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c). In conducting our

review, we view the record in the light most favorable to

Nicini and draw all reasonable inferences in his favor.

III.

NICINI'S SECTION 1983 CLAIM

To establish a claim under 42 U.S.C. S 1983, a plaintiff

must demonstrate a violation of a right protected by the

Constitution or laws of the United States that was

committed by a person acting under the color of state law.

See Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).

The first step in evaluating a section 1983 claim is to

"identify the exact contours of the underlying right said to

have been violated" and to determine "whether the plaintiff

has alleged a deprivation of a constitutional right at all."

County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5

(1998).

11

Nicini's section 1983 claim rests on the Due Process

Clause of the Fourteenth Amendment. He invokes the

substantive component of due process, which "protects

individual liberty against `certain government actions

regardless of the fairness of the procedures used to

implement them.' " Collins v. City of Harker Heights, Tex.,

503 U.S. 115, 125 (1992) (quoting Daniels v. Williams, 474

U.S. 327, 331 (1986)). Specifically, Nicini alleges that

Cyrus, acting under color of state law, deprived him of "the

right to be free from the infliction of unnecessary pain or

abuse . . . and the fundamental right to physical safety."

App. at 52 (Nicini's brief in opposition to summary

judgment).

In denying Cyrus's request for qualified immunity on that

claim, the District Court interpreted Nicini to assert a right

"to be free from deprivation of liberty by reason of a foster

care placement preceded by an investigation so lacking in

thoroughness and precision that it can be said to shock the

conscience," and held that such a right was clearly

established at the time of Cyrus's alleged violation. App. at

95. Indeed, Cyrus does not dispute that the rights Nicini

asserts are protectable under section 1983. Cf. DeShaney v.

Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195

(1989) (right to " `free[dom] from . . . unjustified intrusions

on personal security' ") (quoting Ingraham v. Wright, 430

U.S. 651, 673 (1977)). Nor does Cyrus dispute that he was

acting under color of state law. He contends, however, that

Nicini has not established a constitutional violation because

"[t]here is no way that Mr. Cyrus should or could have

known about the tragic events that would occur at the

Morra home." Appellee's Br. at 13. Nicini replies that Cyrus

violated his constitutional rights by "fail[ing] to conduct a

full and complete investigation of Morra . . . ." Appellant's

Br. at 16. Nicini's argument relies on the principle that "a

state's role in `placing children in foster homes' gives rise to

a constitutional right of protection to the child . . . ."

Appellant's Br. at 13. Although Cyrus does not contest that

proposition, we must first determine whether this principle

is valid, an open question in this circuit.

A.

As a general proposition, a state's failure to protect an

individual against private violence does not constitute a

12

violation of due process. DeShaney, 489 U.S. at 202. Thus,

in DeShaney the Court held that a child who was beaten so

severely by his father that he suffered permanent brain

damage did not have a claim against the state agency for

violation of his substantive due process rights by failing to

remove him from his father's custody although agency

personnel had reason to know of the abuse. However, the

Court recognized that "in certain limited circumstances the

Constitution imposes upon the State affirmative duties of

care and protection with respect to particular individuals."

Id. at 198. As examples of situations in which the state has

such a duty, the Court cited its decision in Estelle v.

Gamble, 429 U.S. 97 (1976), which held that the Eighth

Amendment's prohibition against cruel and unusual

punishment required the state "to provide adequate medical

care to incarcerated prisoners," DeShaney, 489 U.S. at 198,

and Youngberg v. Romeo, 457 U.S. 307 (1982), which held

that substantive due process "requires the State to provide

involuntarily committed mental patients with such services

as are necessary to ensure their `reasonable safety' from

themselves and others," DeShaney, 489 U.S. at 199

(citation omitted).

The state's affirmative "dut[y] of care and protection," id.

at 198, in those cases stemmed "not from the State's

knowledge of the individual's predicament or from its

expressions of intent to help him, but from the limitation

which it has imposed on his freedom to act on his own

behalf." Id. at 200. In holding that the state did not have

such a "special relationship" with Joshua DeShaney, the

Court explained that "[w]hile the State may have been

aware of the dangers that Joshua faced in the free world,

it played no part in their creation, nor did it do anything to

render him any more vulnerable to them." Id. at 201.6

_________________________________________________________________

6. Courts have seized upon this language in DeShaney to fashion

another exception to the general rule absolving state actors of liability

for

harm caused by private parties: the state-created danger theory. This

theory is "predicated upon the states' affirmative acts which work to

plaintiffs' detriments in terms of exposure to danger" rather than upon

a special relationship between the state and the victim. D.R. v. Middle

Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1374 (3d Cir. 1992)

(en banc). Nicini has not argued in this case that we should apply the

state-created danger theory. Rather, he has proceeded solely under the

"special relationship" theory.

13

Of particular significance to the matter before us, the

Court also suggested that "[h]ad the State by the affirmative

exercise of its power removed Joshua from free society and

placed him in a foster home operated by its agents, we

might have a situation sufficiently analogous to

incarceration or institutionalization to give rise to an

affirmative duty to protect." Id. at 201 n.9. The Court noted

that several courts of appeals had already found such a

duty in the foster care context but declined to comment on

the merit of those decisions. See id. (citing Doe v. New York

City Dep't of Social Servs., 649 F.2d 134 (2d Cir. 1981);

Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987) (en

banc)).

After DeShaney, many of our sister courts of appeals held

that foster children have a substantive due process right to

be free from harm at the hands of state-regulated foster

parents. See, e.g., Lintz v. Skipski, 25 F.3d 304, 305 (6th

Cir. 1994); Norfleet v. Arkansas Dep't of Human Servs., 989

F.2d 289, 293 (8th Cir. 1993); Yvonne L. v. New Mexico

Dep't of Human Servs., 959 F.2d 883, 891-93 (10th Cir.

1992); K.H. v. Morgan, 914 F.2d 846, 848-49 (7th Cir.

1990). These courts have accepted the analogy between

persons the state places in foster care and those it

incarcerates or institutionalizes. See, e.g., K.H., 914 F.2d at

849 ("Once the state assumes custody of a person, it owes

him a rudimentary duty of safekeeping . . ."); Yvonne L.,

959 F.2d at 891-93 (discussing and approving cases

imposing liability in foster care context).

We have suggested, although never directly held, that

state actors owe a duty to children placed in foster care. In

D.R., 972 F.2d at 1368-73, we held that a public high

school student who was allegedly sexually molested by

other students during school hours could not maintain a

claim against school officials based on a "special

relationship" theory. We held that public high school

students were not comparable to prisoners or the

involuntarily committed because "parents remain the

[students'] primary caretakers," id. at 1371, and because

students "may turn to persons unrelated to the state for

help on a daily basis," id. at 1372. We also noted that this

court has principally read DeShaney as "setting out a test

14

of physical custody." Id. at 1370. For this proposition, we

cited our decisions in Philadelphia Police & Fire Association

for Handicapped Children, Inc. v. City of Philadelphia, 874

F.2d 156, 168 (3d Cir. 1989) (refusing to apply the special

relationship exception to impose upon the state an

affirmative duty "to protect the mentally retarded living at

home"), and Fialkowski v. Greenwich Home for Children,

Inc., 921 F.2d 459 (3d Cir. 1990) (entity that performed

mental health intake services for the county and which

referred plaintiffs' mentally retarded adult son owed him no

affirmative duty of care because his parents voluntarily

placed him in the institution and were free to remove him).

In D.R., we recognized that "some courts have imposed a

constitutional duty to protect foster children by analogy to

involuntarily institutionalized individuals," 972 F.2d at

1372, and stated, albeit in dictum:

A relationship between the state and foster children

arises out of the state's affirmative act in finding the

children and placing them with state-approved

families. By so doing, the state assumes an important

continuing, if not immediate, responsibility for the

child's well-being. In addition, the child's placement

renders him or her dependent upon the state, through

the foster family, to meet the child's basic needs.

Id. (citations omitted); see also Horton v. Flenory, 889 F.2d

454, 457 (3d Cir. 1989) (holding that DeShaney is limited

"to situations in which the state is not involved in the

harm, either as a custodian or as an actor" and that

plaintiff was functionally in state custody where he was

forcibly detained and beaten by bar owner, with police

approval).

We find our discussion in D.R. and the numerous

decisions of the other courts of appeals on this issue

persuasive. Foster children, like the incarcerated or the

involuntarily committed, are "placed . . . in a custodial

environment . . . [and are] unable to seek alternative living

arrangements." Taylor v. Ledbetter, 818 F.2d 791, 795

(11th Cir. 1987) (en banc). We now hold that when the

state places a child in state-regulated foster care, the state

has entered into a special relationship with that child

15

which imposes upon it certain affirmative duties. The

failure to perform such duties can give rise, under

sufficiently culpable circumstances, to liability under

section 1983.

We recognize that the analogy between foster children on

the one hand and prisoners and institutionalized persons

on the other is incomplete. For example, foster children,

especially older ones, enjoy a greater degree of freedom and

are more likely to be able to take steps to ensure their own

safety. Nonetheless, any distinctions between children

placed in foster care and the prisoners at issue in Estelle or

the institutionalized mentally retarded persons at issue in

Youngberg are matters of degree rather than of kind. See

Norfleet, 989 F.2d at 292 (although there is a closer

relationship between the state and prisoners than between

the state and foster children, "the situations are sufficiently

analogous"). In each of these cases the state, by affirmative

act, renders the individual substantially "dependent upon

the state . . . to meet [his or her] basic needs." D.R., 972

F.2d at 1372.

We are aware that Nicini came to stay with the Morras on

his own initiative and that the Morras were not officially

approved by the state as either foster or para-foster parents.7

_________________________________________________________________

7. The parties' briefs are silent as to the precise meaning of "foster"

and

"para-foster" care. At argument, we were informed that foster parents are

approved for the general placement of foster children rather than

approved for the placement of a particular child. See also N.J. Admin.

Code tit. 10, S 122B-1.4 (DYFS regulations defining foster parent as "any

person approved by the Division for the general placement of children in

his or her own home").

"Para-foster" care is not defined in the statute or regulations governing

DYFS. The current regulations, however, refer to"para care," defined as

"a service involving the placement of a child in a private family home by

anyone other than DYFS, and which DYFS approves for payment after

an approval process is completed." N.J. Admin. Code tit. 10, S 10:15-1.2.

This is similar to a definition of "para-foster care," effective March 9,

1987, contained in a DYFS Field Operations manual submitted to us as

part of the appendix in this appeal which refers to"foster care service

involving the placement of a child in a private family home by anyone

other than DYFS, regardless of whether the child is already under DYFS

16

However, Cyrus does not contest that Nicini was in DYFS

custody throughout the relevant period. Furthermore, the

record is replete with evidence that Nicini was substantially

dependent upon DYFS and that DYFS acquiesced in

Nicini's stay at the Morra home. At least by October 10,

1990, when Nicini's father signed a foster care placement

agreement, DYFS was able to arrange for his foster

placement. At some point, the Superior Court of New Jersey

awarded custody of Nicini to DYFS and DHS. App. at 136.

Nicini was thereafter placed on several occasions with

DYFS-approved foster parents and with relatives. It also

appears that after the police located Nicini at the Morra

home and took him to JFK, DYFS returned him to their

home over the objections of his aunt and his father. 8 Under

these facts, we believe Nicini's situation is sufficiently

analogous to a foster care placement to fall within the

"special relationship" exception to DeShaney.

B.

Having established that Nicini has alleged a protected

interest and a sufficient relationship with the state to state

a cause of action under section 1983, we turn to the

District Court's determination that summary judgment was

appropriate because Cyrus's actions did not amount to a

_________________________________________________________________

supervision, and which DYFS approves for payment after an approval

process is completed." App. at 171. Unlike foster parents, para-foster

parents are "approved by DYFS for the income maintenance and services

to [a] particular child and not for the placement of other foster

children."

Id. Nicini does not suggest that DYFS was precluded from approving his

stay with the Morras if they were neither foster parents or para-foster

parents.

8. Livingston seems to have objected on the ground that Nicini "was a

sick boy who needed hospitalization." Ex. at 67. The DYFS incident

report that documents the objection of Nicini's father does not contain

the basis for his objection (he apparently testified at his deposition

that

he informed a DYFS caseworker named Diana Smith of his belief that

the Morra home was a "haven for runaway juveniles," App. at 250

(expert report)), but it clearly states that he agreed to weekend

placement

with the Morras. The same report states that DYFS had "custody of

Anthony through court order." Ex. at 70.

17

violation of Nicini's constitutional rights. We mustfirst

determine what level of conduct is egregious enough to

amount to a constitutional violation and, then, whether

there is sufficient evidence that Cyrus's conduct rose to

that level.

We begin with the decision in County of Sacramento v.

Lewis, 523 U.S. 833 (1998), where the Supreme Court

granted certiorari "to resolve a conflict among the Circuits

over the standard of culpability on the part of a law

enforcement officer for violating substantive due process in

a pursuit case." Id. at 839. In Lewis , the Court emphasized

that " `[t]he touchstone of due process is protection of the

individual against arbitrary action of government.' " Lewis,

523 U.S. at 845 (quoting Wolff v. McDonnell, 418 U.S. 539,

558 (1974)). It then noted that where the challenge is to

executive rather than legislative action, "only the most

egregious official conduct can be said to be `arbitrary in the

constitutional sense.' " Id. at 846 (quoting Collins v. Harker

Heights, 503 U.S. 115, 129 (1992)). Mere negligence is

never sufficient for substantive due process liability. See

Daniels v. Williams, 474 U.S. 327 (1986). Under Lewis,

substantive due process liability attaches only to executive

action that is "so ill-conceived or malicious that it `shocks

the conscience.' " Miller v. City of Philadelphia, 174 F.3d

368, 375 (3d Cir. 1999) (quoting Lewis, 523 U.S. at 846).

The "exact degree of wrongfulness necessary to reach

the `conscience-shocking level depends upon the

circumstances of a particular case.' " Id. at 375. At issue in

Lewis was the conduct of police officers engaged in a

pursuit, which the Court contrasted with the conduct of

prison officials who face liability under the Eighth

Amendment if they are "deliberately indifferent to the

medical needs of their prisoners." Lewis, 523 U.S. at 850

(citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The

Court noted that "[a]s the very term `deliberate indifference'

implies, the standard is sensibly employed only when

actual deliberation is practical," and "in the custodial

situation of a prison, forethought about an inmate's welfare

is not only feasible but obligatory." Id. at 851. The Court

also noted that " `the State's responsibility to attend to the

medical needs of prisoners . . . does not ordinarily clash

18

with other equally important governmental

responsibilities.' " Id. at 851-52 (quoting Whitley v. Albers,

475 U.S. 312, 320 (1986)).

In the police pursuit context, the issue presented in

Lewis, officers do not have "the luxury enjoyed by prison

officials of having time to make unhurried judgments, upon

the chance for repeated reflection, largely uncomplicated by

the pulls of competing obligations." Id. at 853. It followed

that "high speed chases with no intent to harm suspects

physically or to worsen their legal plight do not give rise to

liability under the Fourteenth Amendment." Id. at 854. The

Court recognized, however, that in some contexts conduct

falling within a middle range of culpability -- that is,

involving more than negligence but less than intentional

conduct -- can be shocking in the constitutional sense. As

the Court explained:

Rules of due process are not . . . subject to mechanical

application in unfamiliar territory. Deliberate

indifference that shocks in one environment may not

be so patently egregious in another . . . .

Id. at 850.

Lewis therefore makes clear that a plaintiff seeking to

establish a constitutional violation must demonstrate that

the official's conduct "shocks the conscience" in the

particular setting in which that conduct occurred. In some

circumstances, conduct that is deliberately indifferent will

shock the conscience. Indeed, in the foster care context,

most of the courts of appeals have applied the deliberate

indifference standard, although they have defined that

standard in slightly different ways. See, e.g., White v.

Chambliss, 112 F.3d 731, 737 (4th Cir. 1997) (liability if

defendant was "plainly placed on notice of a danger and

chose to ignore the danger"); Taylor, 818 F.2d at 796 (foster

child must show "actual knowledge of abuse or that agency

personnel deliberately failed to learn what was occurring in

the foster home"); Doe v. New York City Dep't of Soc. Servs.,

649 F.2d 134, 145 (2d Cir. 1981) (deliberate indifference

"cannot exist absent some knowledge triggering an

affirmative duty to act . . . . Defendants may be held liable

[for] . . . deliberate indifference to a known injury, a known

risk, or a specific duty").

19

In Miller, we evaluated the actions of a social worker who

after receiving allegations of abuse separated a child from

her natural parent under a standard that "exceed[ed] . . .

deliberate indifference." Miller, 174 F.3d at 375. We held

that the worker would be liable only if his conduct reached

"a level of gross negligence or arbitrariness that indeed

shocks the conscience." Id. at 375-76 (quotation omitted).

We also stressed that although "a social worker acting to

separate parent and child does not usually act in the

hyperpressurized environment of a prison riot or a high

speed chase . . ., he or she rarely will have the luxury of

proceeding in a deliberate fashion." Id. at 375. Cyrus,

unlike the social worker in Miller, had time"to make

unhurried judgments" in investigating whether to permit

Nicini to remain with the Morras. Lewis, 523 U.S. at 853.

In the context of this case, we agree that Cyrus's actions in

investigating the Morra home should be judged under the

deliberate indifference standard.9

In Farmer v. Brennan, 511 U.S. 825 (1994), the Court

clarified the deliberate indifference standard applicable in

suits challenging prison conditions under the Eighth

Amendment. It adopted a subjective standard of liability

consistent with recklessness as that term is defined in

_________________________________________________________________

9. We note that in Youngberg, the Supreme Court held that

"professional" decisionmakers would be liable for violating the

substantive due process rights of an involuntarily institutionalized

mentally retarded plaintiff if their conduct was"such a substantial

departure from accepted professional judgment, practice, or standards

as to demonstrate that the person responsible actually did not base the

decision on such a judgment." 457 U.S. at 323. We applied this test on

facts virtually identical to those in Youngberg in Shaw v. Strackhouse,

920 F.2d 1135, 1142-46 (3d Cir. 1990). See also Winston v. Children &

Youth Servs., 948 F.2d 1380, 1390-91 (3d Cir. 1991) (applying standard

to challenge by natural parents to policy granting visitation rights to

children in foster care); Yvonne L., 959 F.2d at 893-94 (Eleventh Circuit

applied the professional judgment test in the foster care context, but

emphasized test is essentially same as deliberate indifference test).

In response to our inquiry, neither Nicini nor Cyrus suggested that the

professional judgment standard is appropriate. Therefore, we do not

decide whether, consistent with Lewis, that standard could be applied to

Cyrus's conduct.

20

criminal law. The Court held that "a prison official cannot

be found liable . . . unless the official knows of and

disregards an excessive risk to inmate health and safety;

the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference." Id. at

837.

This case does not require us to determine whether an

official's failure to act in light of a risk of which the official

should have known, as opposed to failure to act in light of

an actually known risk, constitutes deliberately indifferent

conduct in this setting.10 We will assume arguendo that

Nicini's proposed standard of "should have known" is

applicable. Nevertheless, as Lewis makes clear, the relevant

inquiry is whether the defendant's conduct "shocks the

conscience."

Under the circumstances of this case, we cannot agree

that Cyrus's conduct meets that standard. To the contrary,

we conclude that Cyrus's conduct in investigating the

Morras amounted, at most, to negligence. For the same

reason, we need not consider whether failure to perform a

_________________________________________________________________

10. We recognize that the deliberate indifference standard applicable in

Farmer to challenges to prison conditions does not necessarily apply to

the substantive due process claims of a foster child. See City of Revere

v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (pretrial

detainees entitled under due process to "at least as great" protection as

is afforded convicted prisoners under the Eighth Amendment); Spencer v.

Knapheide Truck Equip. Co., 183 F.3d 902, 906-08 (8th Cir. 1999)

(declining to decide whether pretrial detainee's claim should be judged

by Farmer's subjective deliberate indifference standard or by objective

standard); cf. Boring v. Kozakiewicz, 833 F.2d 468, 472 (3d Cir. 1987)

(suggesting that "[t]o apply the Eighth Amendment standard to mentally

retarded persons would be little short of barbarous"). Nevertheless, we

note that after Farmer the courts of appeals have shown a tendency to

apply a purely subjective deliberate indifference standard outside the

Eighth Amendment context. See, e.g., Gant v. Wallingford Bd. of Educ.,

195 F.3d 134, 141 n.6 (2d Cir. 1999) (rejecting"should have known"

standard in due process action challenging conduct of school officials

and other defendants in responding to complaints of racial harassment

against student); Qian v. Kautz, 168 F.3d 949, 955-56 (7th Cir. 1999)

(detainee's due process claims judged by Farmer standard); Hare v. City

of Corinth, Miss., 74 F.3d 633, 648 (5th Cir. 1996) (same).

21

specific duty can ever amount to deliberate indifference, see

Taylor, 818 F.2d at 797; Doe, 649 F.2d at 145, as there is

no evidence that Cyrus failed to perform any required duty.

C.

The District Court held that the evidence, viewed most

favorably to Nicini, failed to establish that Cyrus's conduct

was "deliberately indifferent" to Nicini's rights. The court

held that Nicini "fail[ed] to establish that Cyrus knew or

suspected the danger that awaited [Nicini] in the Morra

home," slip op. at 12, and that "by following standard DYFS

procedures and informing a family court judge of the scope

of his investigation, Cyrus's failure to discover that

conviction does not shock the conscience or demonstrate

his deliberate indifference to or reckless disregard of

[Nicini's] constitutional rights," id. at 13.

On appeal, Nicini contends that the District Court too

narrowly construed Cyrus's responsibility by looking to

whether Cyrus knew or suspected that Morra had a history

of abusing children rather than whether Cyrus knew or

suspected that the placement was unsafe. In its opinion

granting summary judgment, the District Court stated the

exclusive focus of the complaint involved Cyrus's failure to

discover Morra's criminal background. Slip op. at 9. Even if

we accept Nicini's broader view of the complaint, it would

not change the outcome of the appeal, which still revolves

around whether Cyrus was deliberately indifferent in any

respect.

In his affidavit, Cyrus stated:

The DYFS policies and procedures required that I

conduct a perpretrator [sic] "PERP" check with the

DYFS Central Registry when a child ends up at a home

which is not a DYFS placement. I conducted one. The

PERP check revealed no criminal information regarding

the Morras. DYFS can not access National Crime

Institute Check ("NCIC") . . . nor a State criminal

background check.

App. at 145. Nicini does not argue that Cyrus failed to act

in accordance with applicable DYFS policy and procedure.

22

To establish Cyrus's liability, Nicini offered only the

report of Dr. Atkins, the psychologist he proffered as an

expert, that Cyrus should have done more than was

required of him by DYFS's practices and procedures. The

relevant portion of that report states:

In light of the information available to Frank Cyrus

at the time of his investigation of the Morra household,

particularly the criminal record of Morra which was a

matter of public record and which could have been

obtained by an appropriate national police record

search with the permission of Morra being required by

Cyrus prior to placement, it is the opinion of this

clinician that this investigation was conducted with

total indifference to all available facts that were clearly

material to any social worker who would be called

upon to make such a placement.

App. at 253. As is evident, Dr. Atkins believed that Cyrus

should have undertaken a national police search (which the

psychologist recognized required Morra's consent) even

though the Morras were not applicants to become an official

DYFS foster family or para-foster family. Dr. Atkins never

explained how Cyrus could have performed what the

psychologist termed the "appropriate national police record

search" without Morra's cooperation and never responded

to Cyrus's sworn statement that he could not access the

National Crime Information Center.

Unable to point to a state requirement or a DYFS policy

or procedure violated by Cyrus, Nicini argues that Cyrus

nonetheless should have been on notice that a more

detailed investigation of the Morras was required. As to the

period from the date DYFS learned where Nicini was,

February 9, 1991, and the date of the Family Court hearing

that approved Nicini's temporary placement status,

February 28, 1991, the record reveals consistent

monitoring and oversight by Cyrus and DYFS. On February

9, Nicini was located at the Morra home and, after being

taken to JFK, "was refusing to go anywhere else" than back

to the Morra home. Ex. at 69. On that day, a DYFS

caseworker visited with the Morras and made detailed notes

about the condition of the home and the Morra family's

willingness "to help Tony." Ex. at 69. Cyrus visited Nicini

23

twice during the following nineteen days and also made

contact by telephone during that period. An outreach

counselor also visited Nicini once a week and filed a report

that supported Cyrus's testimony at the February 28

hearing that Nicini appeared to be doing well there.

Nicini did not tell Cyrus of the sexual assaults during the

visits Cyrus made with him or during the phone

conversations Cyrus made to him while he was at the

Morra home, although the assaults began within two or

three days of Nicini's arrival there. Nicini, albeit a minor,

was not of such tender years that he was unable to

communicate this information. He was fifteen years old and

had left an earlier placement to find the Morras on his own.

Significantly, although Nicini testified at the February 28,

1991 hearing he did not inform the court of the assaults.

Nor, apparently, did he inform his attorney, who likewise

mentioned nothing of the assaults at the hearing. Thus, the

record reveals little from which Cyrus could have inferred

that Nicini faced a "substantial risk of serious harm."

Farmer, 511 U.S. at 837.

Nicini relies on two factual bases for imposition of

liability on Cyrus. He points to Cyrus's testimony at the

February 28 hearing that there was nothing the agency saw

"in terms of problems with the law." App. at 156.11 There is

nothing in the record to support Nicini's argument that

Cyrus made an affirmative representation that he"checked

out" Morra. The record reflects that Cyrus was frank and

forthright as to the extent of his inquiry into the

appropriateness of the Morra home. He advised the judge

that he had done a PERP check and advised what that

check disclosed. There is no suggestion that the judge was

unaware of the extent of investigation that the PERP check

entailed, as it appears this is a routine investigation. Cyrus

_________________________________________________________________

11. We have held that caseworkers are entitled to absolute immunity "for

their actions on behalf of the state in preparing for, initiating, and

prosecuting dependency proceedings. Their immunity is broad enough to

include the formulation and presentation of recommendations to the

court in the course of such proceedings." Ernst v. Child & Youth Servs.

of Chester County, 108 F.3d 486, 495 (3d Cir. 1997); see also Miller, 174

F.3d at 376 n.6 (immunity does not extend to investigative or

administrative acts).

24

testified that the Morras were not a foster care family but

that Nicini needed a stable environment before DYFS could

attempt to resolve the larger family problems. When the

court asked whether the Morras would qualify as para-

foster parents, Cyrus responded that they would but

cautioned that he had only completed the PERP check.

The other basis for Nicini's claim against Cyrus is that he

was "placed on notice" about the Morra home by the

allegations of Nicini's mother. However, Cyrus alerted the

judge to the fact that Nicini's mother objected to placement

with the Morras. When the judge asked Mrs. Nicini for her

views, she informed him of reports that the Morras' son

took drugs and that "something just seems strange about

these people" in light of their willingness to take an

unknown child into their home. App. at 158. Mrs. Nicini

voiced concern and suspicion but never made any more

specific allegations, and did not advise Judge Segal of all of

her concerns when she had the opportunity to do so. 12

Nicini argues that Cyrus should have elicited alcohol and

substance abuse through a urine analysis. But Nicini

completely ignores the fact that the judge heard Mrs.

Nicini's objections and expressly declined to require drug

monitoring as requested by Nicini's attorney because there

was "no indication that drugs are involved in this matter."

App. at 168. The judge then approved placement of Nicini

at the Morra home, specifically holding that Nicini would

"come[ ] under the care and supervision" of DYFS and that

he would remain at the Morras as long as DYFS thought it

"appropriate." App. at 167. Nicini points to nothing else in

_________________________________________________________________

12. In her deposition taken in this case years after the events, Nicini's

mother described the "objections" to which Cyrus referred at the hearing.

She testified that she spoke to Cyrus prior to the hearing on February

28, 1991 and told him of a cassette that contained a message from

Nicini in which Nicini said he was "partying and having a good time over

there drinking" at the Morras. App. at 250 (expert report). Nicini's

mother also testified that she expressed "other concerns about the

drinking and the drug use that I felt went on over there, about the

juveniles that hung around over there . . . . I expressed a lot of

concerns

to him about the Morra home and Tony's placement." Id. Nicini makes

no effort in his brief to explain his mother's failure to discuss these

allegations in more detail at the hearing.

25

the post-hearing period that should have put Cyrus or

DYFS on notice that continued placement with the Morras

was inappropriate.

In her vigorous dissent, our colleague would have us

second-guess Cyrus's actions from hindsight. That is not

our task. Nor is it called for in the circumstances of this

case. The dissent relies heavily on the report by Dr. Atkins

to assert that despite his compliance with DYFS policies

Cyrus should be liable for failing to engage in a"heightened

level of inquiry, interview and investigation." Dissenting Op.

at 33. But Dr. Atkins, who never interviewed the persons

involved, focuses "particularly" on Cyrus's failure to obtain

Morra's consent to a criminal background check without

pointing to specific facts from which Cyrus should have

inferred that such a check was necessary. The fact that

Nicini's "problems went well beyond those of the average

troubled juvenile" under DYFS care and supervision,

Dissenting Op. at 31, furnished Cyrus no clue about the

appropriateness vel non of the Morra home as a placement.

Given that the only reason Cyrus had to question the

appropriateness of the Morra home was the suspicions of

Nicini's mother and father,13 Nicini's insistence on

remaining at the Morra home, and Cyrus's first-hand

impression that Nicini was "doing well there," App. at 155,

an impression corroborated by Nicini's TRIS worker and by

Nicini himself at the hearing before Judge Segal, a jury

could not permissibly conclude that Cyrus's investigation

was so inadequate as to manifest deliberate indifference to

Nicini's rights.

_________________________________________________________________

13. The dissent quotes liberally from the deposition testimony of Nicini's

father but fails to mention that Nicini's father did not suggest that he

relayed these concerns to Cyrus. Indeed, it is unclear from his deposition

whether Nicini's father ever informed anyone he suspected Morra to be

a pedophile. When asked for specific details of the concerns he relayed

to an unnamed DYFS employee in "1988 give or take a year," App. at

230, Nicini's father replied: "About the placement of children into foster

care homes. My concern with my son [Danny] as far as what he was

doing. And I was trying to make them understand my form of discipline

versus another individual that he may socialize with, their parents." App.

at 231.

26

Nor are we persuaded by the cases cited by the dissent

in which other courts determined a jury could reasonably

find deliberate indifference because the facts in those cases

are not analogous to those in this case.14 It may be

dramatic to attempt to analogize Cyrus to a caseworker who

"allow[s] a child to starve before his eyes," Dissenting Op. at

40 n. 14, but, so far as the record reveals, there was

nothing "before [Cyrus's] eyes" that suggested that Nicini

faced a substantial risk of serious harm. To the contrary,

Nicini's TRIS worker confirmed that while at the Morra

home Nicini was no longer suicidal, no longer depressed,

and appeared to be adjusting well.

The evidence adduced by Nicini, even when interpreted

most favorably to him, not only falls short of the demanding

standard for deliberate indifference set forth in Farmer, it

also fails to establish that Cyrus was more than negligent,

if it even establishes that. The District Court did not err in

holding Nicini failed to prove a case for subjecting Cyrus to

substantive due process liability. Because the period

between the court hearing and Nicini's flight from the

Morra home was a limited one, spanning barely over two

weeks, we express no view of a caseworker's responsibility

over a longer stretch of time.

IV.

Nicini's State Law Claims

We likewise conclude that the District Court did not err

in granting summary judgment for Cyrus on Nicini's state

tort law claims based on qualified immunity. The District

_________________________________________________________________

14. For example, in Weyant v. Okst, 101 F.3d 845, 857 (2d Cir. 1996),

the officials knew plaintiff was diabetic, in insulin shock, and in need

of

immediate hospitalization, but refused to take him there. Similarly, in

Chavez v. Cady, 207 F.3d 901 (7th Cir. 2000), there was sufficient

evidence that the detainee's need for medical care was obvious to

defendants. By contrast, in Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.

1999), cert. denied, 120 S. Ct. 1673 (2000), a case not cited, the court

held summary judgment was appropriate despite a report by plaintiff 's

expert that further action was necessary, because there was no objective

evidence that plaintiff had serious need for medical care.

27

Court noted that "[t]he exact nature of [Nicini's] state law

claims against Cyrus is not readily apparent on the face of

his complaint," slip op. at 17, but Nicini agrees that the

court properly characterized his claims as relying on the

"same factual bases . . . which supported the 1983

actions," Appellant's Br. at 18.

Cyrus asserts that he is entitled to immunity under

section 59:3-3 of the New Jersey Tort Claims Act, which

provides that "[a] public employee is not liable if he acts in

good faith in the execution or enforcement of any law." N.J.

Stat. Ann. S 59:3-3. Negligence is insufficient to defeat the

immunity provided by section 59:3-3. See Canico v.

Hurtado, 144 N.J. 361, 365, 676 A.2d 1083, 1085 (1996)

("A public employee, although negligent, may still act in

good faith."). Instead, to overcome immunity under this

section, "a plaintiff must prove more than ordinary

negligence." Id. Summary judgment under section 59:3-3 is

appropriate if a public official establishes that his or her

"acts were objectively reasonable or that they performed

them with subjective good faith." Id.

Nicini has not argued that Cyrus is ineligible for the

immunity provided by this statute, which applies to public

officials engaged in the execution or enforcement of the law.

Rather, he contends that Cyrus's conduct amounted to

"reckless indifference." Appellant's Br. at 19. We have

concluded that Cyrus's conduct amounted, at most, to

negligence. Therefore, the District Court did not err in

granting summary judgment in his favor on the state law

claims based on qualified immunity. See B.F. v. DYFS, 296

N.J. Super. 372, 385-86, 686 A.2d 1249, 1256-57 (N.J.

Super. 1996) (DYFS employees immune for efforts to

terminate parental rights).

V.

For the foregoing reasons, we will affirm the order of the

District Court entering judgment in favor of Frank Cyrus.

28

RENDELL, Circuit Judge, dissenting:

The majority engages in an extensive and well-reasoned

assessment of the underlying legal principles relevant to the

substantive due process standard to be applied in this

custodial care setting. Unfortunately for Anthony Nicini,

however, the majority does not appear to have considered

whether the real-life controversy before us -- whether

Frank Cyrus's conduct actually fell below this standard --

should be heard or decided by a jury under the legal

principles it espouses. This is because Cyrus was, in the

majority's view, merely negligent, and maybe not even that.

I dissent because I believe that more than one reasonable

inference can be drawn from the facts, including an

inference of deliberate indifference that shocks the

conscience, making it inappropriate to dispose of Nicini's

case on summary judgment. See United States v. Diebold,

Inc., 369 U.S. 654, 655 (1962) (per curiam). Having used

Nicini's case as a vehicle to explore and analyze a

particularly complicated legal standard, have we given short

shrift to, and failed to appreciate the complexities of,

applying the legal standard to the facts of the case itself? I

suggest that we have.

Nicini's story as chronicled by the majority leads neatly to

its conclusion that Cyrus was, at most, merely negligent.

But there is more than one way to view or perceive what

Cyrus did, or failed to do, in furtherance of his duty to

Nicini, who, although not of "tender years" as the majority

notes, was a suicidal and "high risk" adolescent in need of

hospitalization or intensive outpatient care.1 Due process is

contextual and due process rules should not be applied

mechanically. See, e.g., County of Sacramento v. Lewis, 523

U.S. 833, 850 (1998); Rochin v. California, 342 U.S. 165,

172 (1952). Although mere negligence is not sufficient to be

a substantive due process violation, "culpability falling

_________________________________________________________________

1. Even if the majority is correct that, as a general matter, "foster

children, particularly older ones, enjoy a greater degree of freedom and

are more likely to be able to take steps to ensure their own safety," this

assumption is hardly applicable to Nicini, a suicidal and severely

depressed victim of physical abuse who repeatedly manifested a

tendency to take actions that did not further his own safety and welfare.

29

within the middle range, falling from something more than

negligence but `less than intentional conduct, such as

recklessness or gross negligence' . . . is a matter for closer

calls." Lewis, 523 U.S. at 849 (citation omitted). "[T]he fact

that there can be instances where glaring negligence may

not constitute deliberate indifference does not mean that a

fact finder is barred from equating negligence of a certain

dimension with deliberate indifference." Doe v. New York

City Dep't of Social Servs., 649 F.2d 134, 143 (2d Cir.

1981). Considering the facts in the light most favorable to

Nicini, the non-movant, as we are required to do on

summary judgment, it certainly appears possible that

Cyrus's conduct might cry out "indifference" to a

reasonable jury. Indeed, whether or not a defendant's

conduct amounts to deliberate indifference has been

described as a "classic issue for the fact finder" and "a

factual mainstay of actions under S 1983." Armstrong v.

Squadrito, 152 F.3d 564, 577 (7th Cir. 1998). 2

It is hardly a struggle to present the facts in a way that

gives rise to an inference of culpability greater than mere

negligence. An unrebutted expert report in the record,

which receives scant attention in the majority opinion, does

_________________________________________________________________

2. Other courts similarly have characterized this question as one for the

fact finder when the issue is less than clear-cut. See, e.g., Weyant v.

Okst, 101 F.3d 845, 857 (2d Cir. 1996) (reversing grant of summary

judgment because a reasonable jury could infer from the record, taken

in the light most favorable to the plaintiff, that the defendants were

deliberately indifferent); Wood v. Ostrander, 879 F.2d 583, 588 n4 (9th

Cir. 1989) (reversing grant of summary judgment because defendant's

conduct could be construed to be deliberately indifferent; "a jury

presented with these facts might find Ostrander's conduct to have been

`deliberately indifferent,' `reckless,' `grossly negligent,' or merely

`negligent.' ") (citing Fargo v. City of San Juan Bautista, 857 F.2d 638,

641 (9th Cir. 1988) ("When reasonable persons may disagree as to

whether particular conduct constitutes negligence, gross negligence, or

recklessness, the question is one of fact to be decided by the jury.")).

The

Supreme Court recently likened section 1983 actions to tort claims for

purposes of Seventh Amendment application, and explained that as a

general historical matter, juries decided questions of liability, which

"preserved the jury's role in resolving what was often the heart of the

dispute between plaintiff and defendant." City of Monterey v. Del Monte

Dunes at Monterey, Ltd., 526 U.S. 687, 718-719 (1999).

30

much of the work for us. This 13-page, single-spaced report

of psychologist Elliott L. Atkins, Ed.D., P.A., provides a

detailed account of the facts and opines unequivocally that

Cyrus's conduct was far more egregious than the majority

suggests is conceivable. I believe that this unrebutted

expert opinion evidence by itself can, and does, create a

genuine issue of disputed fact sufficient to defeat Cyrus's

motion for summary judgment. See Thomas v. Newton Int'l

Enters., 42 F.3d 1266, 1270 (9th Cir. 1994). 3 At the very

least, however, the Atkins expert report takes us on a

guided tour through the record, including DYFS records

and Cyrus's own testimony, exposing what Cyrus knew or

should have known about Nicini and the Morras and

making it glaringly obvious that some investigation was

necessary before placing a suicidal teenager in a home

where children were permitted to "drink and party."

Atkins focuses first on Nicini's condition and particular

needs. Nicini's problems went well beyond those of the

average troubled juvenile. As such, Nicini required a

heightened level of attention by those charged with

responsibility for his care. The DYFS records depict Nicini

as the victim of repeated physical abuse at the hands of his

_________________________________________________________________

3. See generally Chavez v. Cady, 207 F.3d 901, 905 (7th Cir. 2000)

(concluding that a material fact existed as to whether the treatment

provided by the defendant was a substantial departure from accepted

professional judgment based on the substance of the defendant's

expert's testimony); Russo v. City of Cincinnati , 953 F.2d 1036, 1047

(6th

Cir. 1992) (reversing grant of summary judgment in section 1983 action

alleging failure to train police officers, and noting that "expert

testimony

may prove the sole avenue available to plaintiffs to call into question

the

adequacy of a municipality's training procedures. To disregard expert

testimony in such cases would, we believe, carry with it the danger of

effectively insulating a municipality from liability for injuries

resulting

directly from its indifference to the rights of citizens. Reliance on

expert

testimony is particularly appropriate where, as here, the conclusions rest

directly upon the expert's review of materials provided by the City

itself."). Compare Fagin v. City of Vineland , 22 F.3d 1296, 1307 (3d Cir.

1994) (en banc) (affirming grant of summary judgment in police pursuit

case, and noting that the only evidence introduced by the plaintiffs to

show arbitrary, intentional, and deliberate action by the defendants was

expert witness testimony, but their expert witness"expressly disclaimed

any such characterization" of the defendants' conduct).

31

father. They explain how Nicini made several attempts at

suicide and self-harm, including slashing his wrists and

stomach, drinking peroxide, and ingesting pills. App. 212-

214, 243-244. They reflect that Nicini had both long term

and recent problems of such severity as to require intensive

outpatient care, or, more likely, hospitalization. A DYFS-

paid psychiatrist's report from January 9, 1991-- shortly

before Cyrus acquiesced in Nicini's placement with the

Morras -- noted that Nicini:

[I]s actively suicidal, in a major depression, very

impulsive and bored. Out-patient treatment is not

enough.

App. 245.4 Cyrus's own contact sheet entry stated:

Worker conferred with supervisor who directed worker

to contact Crisis (JFK) for evaluation of Anthony Nicini

today. Worker contacted parent (Helen Nicini) and

advised her [sic.] recommendations of Dr. Trigiani and

parent was asked to pick Anthony up from aunt's

home and take him to JFK Crisis - parent agreed to do

this. Worker contacted JFK crisis and indicated that

Dr. T's evaluation and recommendation would be faxed

to them - this was done. Worker advised parent (Helen)

upon request of abuse unit that she would have to stay

with child in case he needed to be admitted.

App. 222, 245.

Atkins also explains how Nicini escaped through the

window of the JFK psychiatric unit, deciding by himself

_________________________________________________________________

4. During Nicini's family court hearing, Judge Segal reported on a

telephonic report from a TRIS worker who opined that Nicini was no

longer depressed or suicidal at that particular time and had "made a fine

adjustment to the location where he's presently located," but also

mentioned that the "the option of placement in a longer term facility like

the residential placement . . . like Ranch Hope is a very good option" and

noted that Nicini needed continuing psychotherapy and perhaps anti-

depressants "if things do not clear up for him." App. 166-167. Judge

Segal also noted that "all the doctor has is an assessment of Tony and

he doesn't have a full basis on which to make an evaluation. But he had

sufficient information from his assessment to indicate that it will be a

long time before this boy goes back home." App. 167.

32

that he "didn't feel like staying in the hospital." App. 164,

224-225.5 In addition to the medical evidence, Nicini's

relatives expressed concerns about Nicini's severe health to

DYFS and at the family court hearing, noting that Nicini

was not likely to voluntarily succumb to the treatment he

desperately needed. App. 160, 246- 247.6

Cyrus acceded in Nicini staying with the Morras in the

face of Cyrus's awareness of Nicini's "history of

mistreatment, physical abuse, depression, self-destructive

behavior and suicidality, as well as his protracted absence

from school . . . [and] the long-standing history of rejection,

neglect, and abuse." App. 248. Atkins explains that it

should have been -- and was -- clear to Cyrus that a

caregiver for Nicini needed to provide a secure, emotionally-

stable, and supportive environment, and needed to be able

to provide skillful and knowledgeable intervention. To

determine whether the Morras could provide such an

environment and intervention in light of Nicini's high-risk

situation likely entails a heightened level of inquiry,

interview and investigation.

As Atkins helps to document, however, Cyrus made little

or no effort to discover whether the Morra householdfit any

of the requisite characteristics. Cyrus failed to address the

most basic issues when he interviewed the Morras after

Nicini went to their home upon escaping from the hospital.

Any information about the Cyrus-Morra interview comes

from Cyrus himself because the routine written

documentation of such an interview is curiously absent

from the DYFS records.7 Cyrus could not recall if he asked

the Morras whether they had ever been arrested, convicted,

_________________________________________________________________

5. A psychologist at JFK held a bed for Nicini after he ran away, and the

police picked up Nicini at the Morra residence, yet Cyrus gave Nicini

permission not to go back to the hospital but, rather, to stay at the

Morras' home. App. 225, 246.

6. One of Nicini's aunts also stated at the hearing that she believed

Nicini had attacked her daughter: "This isn't just something that's

happened all of a sudden, it's been going on for at least a year and a

half

. . . and he doesn't mean this, he doesn't." App. 161.

7. When asked about this absence, Cyrus said that he remembered

"writing something, but I don't know if its in here or not." App. 252.

33

or otherwise had contact with law enforcement, nor did he

ask the Morras how long they had lived in New Jersey to

gain perspective on the helpfulness of the PERP check,

apparently because he "just didn't think to ask them that."

App. 251. Instead, Cyrus remembered asking the Morras

whether there was anything that would prevent them from

becoming foster parents, to which he received a negative

response. Cyrus did not ask what the Morras did for a

living. He did not ask whether they owned or rented their

residence. Cyrus could not even recall with certainty that

he had talked to the Morras about Nicini's mental health

history. In essence, there hardly was a meaningful

investigation, let alone a heightened inquiry, of the Morras'

fitness to be Nicini's caregivers. Does it not matter that

Cyrus failed to make inquiries fundamental to placing any

child, let alone a physically-abused and suicidal teenager in

desperate need of a stable environment? Did this conduct

merely fall below an acceptable standard, as the majority

concludes, or was Cyrus indifferent over a period of several

weeks when he should have detected a problem and when

he could and should have acted?

Cyrus would have us forgive any weaknesses in his

inquiry because "no one knew or even remotely suspected

that the Morra home was a dangerous environment," Brief

for Appellee at 14, but the undisputed facts belie Cyrus's

assertion, at least for purposes of summary judgment.

Putting aside whether Cyrus would have had reason to

suspect that the Morra home was a dangerous environment

had he asked them even one or two more basic questions,

both of Nicini's parents relayed express concerns to DYFS

about the Morras, and about placing Nicini with the

Morras. According to her deposition testimony, Mrs. Nicini

had told Cyrus prior to the family court hearing about an

answering machine cassette tape with a message to Nicini's

aunt from Nicini saying that he is "partying and having a

good time over there drinking" at the Morra residence. App.

250. Mrs. Nicini says she also made Cyrus aware in

advance of the family court hearing about:

[M]y other concerns about the drinking and the drug

use that I felt went on over there, about the juveniles

that hung around over there, young kids all hours of

34

the night and how Danny used to come home from that

place. I expressed a lot of concerns to him about the

Morra home and Tony's placement.

App. 250. Mrs. Nicini explained some of her concerns at the

family court hearing:

And now these people that he's with now, the Morras,

they have harbored my oldest son on several occasions

when he had taken off, and at one point even have had

their house surrounded and went in and got him. Now

maybe he didn't tell these people that he was runaway

or anything. I don't know them personally, only-- only

what I had heard. My oldest daughter knows -- goes to

school with kids that are friends with Eric Morra, their

son, which I believe is 16 or 17, and I've been told that

he's into drugs. I don't know if it's true or not, but it's

just what I've heard. I don't know, something just

seems strange about these people, why they would--

if they don't know Tony, why they would even take him

in. I'm sure that Tony knows them through my oldest

son Danny.

App. 158-159. In light of Mrs. Nicini's concerns, Nicini's

counsel commented that "maybe something should be

looked in [sic.] with this Morra family, in light of what Mrs.

Nicini had said I think maybe a closer investigation on

whether or not that's an appropriate placement for

Anthony." App. 163.

At the hearing, Cyrus acknowledged the existence of Mrs.

Nicini's objections, but was somewhat dismissive, instead

emphasizing that the Morras had an interest in Nicini and

would not mind having him there, and that Nicini was

stable at the Morra home. App. 155-156.8 In any event, the

information provided by Mrs. Nicini to Cyrus prior to the

family court hearing apparently did not make a lasting

impression on Cyrus, as he could not articulate her

concerns about the Morras at his deposition:

_________________________________________________________________

8. Indeed, it appears that Cyrus may have characterized the Morras as

a friend of the Nicini family, although it is not entirely clear due to a

possible error in transcription. See App. 154, lines 13-14. See also App.

155 (Cyrus explaining that Nicini "found his way to the Morras, who I

guess was a friend of his.").

35

[I]t seems like it is more like something that she had

heard about him or heard about the family or

something like that, but I don't know any specifics.

App. 250.

Mr. Nicini had expressed concerns to DYFS about the

Morras as well. According to the deposition testimony of

Nicini's father, as recounted by Atkins, Mr. Nicini told

DYFS that the Morra home was a "haven for runaway

juveniles." App. 250. DYFS records indicate that Mr. Nicini

said the Morra home was not a good placement, although

he would agree to weekend placement.9 According to Mr.

Nicini, this was not the first time he had ever relayed

concerns about the Morras, an earlier time being in

connection with Nicini's brother Danny:

Q: If it was around 1988 give or take a year that

Danny stayed or visited the Morra home, was it around

that time in which you suspected that Mr. Morra was

[sic.] pedophile?

A: I suspected that he was exploiting children.

Q: Did you suspect that there might be drugs in th e

household at that time?

A: I felt that these children were going over ther e and

in some way they had access to drugs and alcohol.

. . . .

A: Around that time Danny was already involved wit h

DYFS; is that correct?

Q: Yes.

A: Was his case worker Frank Cyrus at that time?

A: I believe so.

Q: Did you notify anyone at DYFS regarding your

concerns that you have shared with me regarding the

Morra household that there might have been some

child sex there?

_________________________________________________________________

9. The DYFS record entry also reflected that Mr. Nicini was "not pleased,

Anthony not in hospital. He's going to call JFK Crisis to find out who

psychiatrist is that released child." App. 227.

36

A: During what period?

Q: You indicated that Danny might have been stayin g

at the Morra household and that you had your

suspicions that there might be sexual abuse or some

type of child abuse at the home; is that correct?

A: Yes.

Q: Did you notify or tell anyone at DYFS about tho se

suspicions that you had?

A: I had mentioned it to a social worker. . . .

. . . .

Q: Do you recall what concerns or concern exactly you

expressed to that person?

A: About the placement of children into foster car e. My

concern with my son as far as what he was doing.

App. 230-231.10

Mr. Nicini's objections apparently left even less of an

impression on Cyrus than Mrs. Nicini's, as Cyrus initially

disavowed in his deposition having any recollection of

objections by Mr. Nicini to placing his son with the Morras.

After having the aforementioned DYFS record entry read to

him, Cyrus recalled that he was likely aware of Mr. Nicini's

objection but did not bother to pursue it further:

Q. Were you ever aware of that particular objectio n?

A. Yeah, I think I was, now that I read this over.

Q. Okay. Did you ever contact Mr. Nicini to discus s

with him the basis of his objections?

A. No.

Q. Was there any reason for that?

A. No. No, I think, you know, like I was saying, w e

were feeling, you know, good about the placement

because everything was positive, everything was

_________________________________________________________________

10. Mr. Nicini made clear in this deposition that he and his wife had

never authorized Nicini's brother Danny to stay with the Morras. App.

231.

37

pointing toward him doing well there and becoming

stabilized and progressing, and so we had no real

concerns at that time about that.

App. 228.

Failing to follow up on specific concerns communicated

to him and to DYFS about the Morras as an acceptable

placement for Nicini who, only weeks beforehand, was said

to be actively suicidal and in need of hospitalization, Cyrus

advocated that Nicini stay with the Morras, about whom he

knew little or nothing, telling Judge Segal that Nicini was

stable at the Morra house, that he was "doing very well

there, no problems." App. 155.11 And, largely on the basis

of Cyrus's position and representations, Judge Segal

ordered Nicini to remain with the Morras "for so long as

[DYFS] thinks that's an appropriate placement." App. 167.

Judge Segal had asked Cyrus if the Morras' home would

qualify as a para-foster home, to which Cyrus responded

"[y]es they would." App. 156. Although Cyrus qualified his

answer by saying that the only thing he had done was a

_________________________________________________________________

11. A jury might wonder on what basis Cyrus could report to Judge

Segal that everything was positive. Cyrus's explanation seems to be

premised on an assumption, embraced by the majority to some extent,

that no further action was necessary to discharge his duties to Nicini as

long as certain parties professed to be content. Nicini claimed he liked

staying at the Morras, and, as Cyrus noted in his deposition, "Nicini

refused to go elsewhere." App. 145. The Morras were willing to have him

remain there and reported that there were "no problems." Of course,

when the Morras gave that report to Cyrus, Mr. Morra already had been

giving Nicini drugs and sexually abusing him, telling Nicini he would

have no place to go if he disclosed these activities. App. 232, 238. Could

not a jury find Cyrus's attitude to be an indictment rather than a

satisfactory explanation for Cyrus's inaction? After all, on Cyrus's

theory,

a case worker would never unearth a problem until it is too late. Should

not the concern have been the stability of the environment for this

suicidal youngster who had just climbed out the window of the

psychiatric ward, rather than whether he professed to be content there?

In light of Cyrus's weak and ineffectual -- and perhaps even indifferent

-- responses provided with respect to the numerous signposts of

potential danger with the Morra placement, it would not be difficult to

imagine a jury concluding that Cyrus's inaction rose to the level of

deliberate indifference if, during a trial, Cyrus were to provide similar

responses and to demonstrate a similar attitude.

38

PERP check, Cyrus assured Judge Segal that "[t]here's no

-- nothing we've seen in terms of any problem with the law

. . . . right now they are not an official foster family,

although I'm sure they would -- they would apply for para-

foster custody if the parents are willing to let them." App.

156-157. Cyrus explained again in his deposition that he

had received updates from the Morras themselves. App.

226-227.

Concluding that the "background information available to

Frank Cyrus which was completely ignored was

substantial," Atkins opines as follows at the conclusion of

his detailed report on Cyrus's handling of Nicini's case:

The ongoing disregard of pertinent information at

various stages of the investigation demonstrates not a

simple negligent breach but a pattern of deliberate

indifference to the right of Anthony Nicini to be secure

in a safe environment and to be offered the same

opportunity for protection/supportive services from

DYFS as any other child.

App. 253.12

Although this expert report illustrates how the facts

could produce an inference of deliberate indifference, the

majority swiftly dismisses the relevance of Atkins' report in

its entirety, apparently based on the fact that Atkins did

not explain how Cyrus could have performed a national

police search without the permission of the Morras. 13

Interestingly, Cyrus would have obtained the requisite

permission, or been confronted with the refusal of

permission, had Cyrus conducted a proper interview at the

_________________________________________________________________

12. Atkins also opined that Cyrus's "multiple breaches constituted a

pattern of indifference to his statutory and/or professional duty such

that I conclude with a reasonable degree of psychological probability that

this pattern of conduct arose not from mere negligence but from

deliberate indifference to his obligation to conduct a proper

investigation

and directly caused the injuries claimed by Anthony Nicini." App. 242

13. The majority further characterizes the report as "focus[ing]

`particularly' " on this issue "without pointing to specific facts from

which

Cyrus should have inferred that such a check was necessary." I can only

wonder whether the majority is reading the same detailed,

comprehensive report that I have described.

39

outset and asked basic questions that reasonably should

have been explored before entrusting Nicini to the Morras,

such as those posed to a para-foster applicant. Yet, Cyrus

neither asked the pertinent questions, nor sought

permission to do the search, until it was too late.

The majority properly concludes, in my view, that Cyrus

and DYFS had a special relationship with Nicini and thus

were charged with affirmative duties. Nicini was in the care

and custody of the state. However, in light of its recognition

of this duty, and in light of what the facts and expert

witness testimony suggest that Cyrus knew or should have

known about Nicini and the Morras, can one so facilely

conclude as well that no reasonable jury could infer

"deliberate unconcern for plaintiff 's welfare from a pattern

of omissions revealing deliberate inattention to specific

duties imposed for the purpose of safeguarding plaintiffs

from abuse"? See Doe, 649 F.2d at 144; Taylor v. Ledbetter,

818 F.2d 791, 797 (11th Cir. 1987) (en banc) (adopting Doe

articulation of deliberate indifference and finding that a

foster child may bring a section 1983 action alleging that

government officials were deliberately indifferent regarding

her foster home placement).14 As the Supreme Court noted

in Lewis, "[w]hen such extended opportunities to do better

are teamed with protracted failure even to care, indifference

is truly shocking." Lewis, 523 U.S. at 853. By rejecting the

_________________________________________________________________

14. Although Nicini does not specifically challenge whether Cyrus

complied with certain DYFS requirements (e.g. , conducting a PERP

check), and thus Doe is distinguishable in that respect, the substantive

due process violation would be based on the state's alleged failure to

provide for basic human needs of those in its custody, see DeShaney v.

Winnebago County Dept. of Social Servs., 489 U.S. 189, 199-200 (1989),

regardless of whether the state has specifically regulated regarding all

of

those needs. Surely we do not allow states to defeat substantive due

process allegations by setting minimal standards for child welfare case

workers. Would it not violate substantive due process for a state welfare

case worker, with the requisite level of culpability, to allow a child to

starve before his eyes, notwithstanding the absence of a specific state

regulation requiring the feeding of children in the custody of the state?

In light of other evidence giving rise to a strong inference of deliberate

indifference, the fact that Cyrus took certain minimal steps required by

DYFS regulations will not, by itself, defeat that inference or remove

Cyrus's conduct from the realm of consideration.

40

valid competing inference clearly raised by the facts and

concluding at this juncture that Cyrus's conduct was at

most merely negligent as a matter of law, I believe the

majority has short-circuited the process of addressing

Anthony Nicini's substantive due process rights.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

41