Petition for Writ of Certiorari — Ivey McCray, Petitioner v. William D. Jones, et al.

Appendix A

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Document: 54

Page: 1

Date Filed: 12/07/2022

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 21-3294

IVEY MCCRAY,

Appellant

v.

WILLIAM D. JONES; CARLA TENTION, Essex County Child Support Enforcement

Division; RASHAD SHABAZZ-BURNS, Director New Jersey State Child Support

Enforcement; JOHN DOE 1-50

On Appeal from the United States District Court

for the District of New Jersey

(D.C.No. 2-21-cv-03937)

U.S. District Judge: Hon. Susan D. Wigenton

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

December 6, 2022

Before: SHWARTZ, MATEY, and FUENTES, Circuit Judges.

(Filed: December 7, 2022)

OPINION*

SHWARTZ, Circuit Judge.

This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,

does not constitute binding precedent.

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Ivey McCray sued various individuals over the collection of child support she

owed. Because her complaint fails to allege any personal involvement by Defendants

William D. Jones and Carla Tention, we will affirm the District Court’s order dismissing

the complaint against them.

I

A

McCray and Jones divorced in 1988. Jones, who resided in New Jersey, had

custody over their daughter and obtained child support from McCray. Eventually, the

child support order was converted to an arrears order in the amount of $100.00 per month

(the “Arrears Order”). The Arrears Order was sent to “Essex County”1 for enforcement.

Collection efforts on the Arrears Order occurred on several fronts. In May 2012,

“Essex County” sent the Arrears Order to Alameda County, California, where McCray

resided. Alameda County instituted an administrative offset of $100.00 per month from

McCray’s Social Security retirement benefits through 2019. In 2018, “Essex County”

obtained a tax offset from McCray’s federal tax refund. Compl. Tflf 22-23 (App. 20). In

June 2020, the Internal Revenue Service informed McCray that her federal stimulus

payment had been paid to “Essex County.” Compl. 24 (App. 20). Between September

2020 and January 2021, “Essex County” notified McCray about these collection

activities. Compl. 26 (App. 20-21). Beginning in June 2020, McCray sent several

1 McCray’s complaint refers only to “Essex County” and never specifies which

county entity carried out any of these actions.

2

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letters to “all Defendants” requesting return of the funds, but she received no response.

Compl. ^ 25-28 (App. 20-21).

B

1

McCray sued various defendants, including Jones and Tention, who she identified

“as Director of Essex County Child Support Enforcement,” App. 16,2 asserting the

following: (1) a due process claim against “Essex County” under 42 U.S.C. § 1983 for

seizing her federal tax refunds and Social Security benefits without amending the Arrears

Order; (2) a claim under the Uniform Interstate Family Support Act (“UIFSA”) against

all Defendants for seizing amounts beyond those specified in the Arrears Order; (3) a

Fourteenth Amendment claim against “Essex County” for assigning the right of

enforcement to California while “Essex County” also enforced the Order; (4) a claim

under the Social Security Act (“SSA”) against all Defendants for certifying Jones as a

Title IV-D beneficiary to pursue past due child support; and (5) a claim under N.J.S.A.

§ 2A:14-1.2 against all Defendants for registering the support order in California and

later seizing her stimulus check. McCray sought return of the money paid to Jones and/or

seized by “Essex County,” as well as an injunction against continued offsets of federal

tax refunds or administrative funds. App. 25.

2

2 McCray also sued Rashad Shabazz Burns, as “Director of New Jersey State

Child Support Enforcement.” App. 16. The claims against Bums were voluntarily

dismissed.

3

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Jones and Tention filed motions to dismiss under Federal Rule of Civil Procedure

12(b)(6). The District Court granted the motions, concluding, among other things, that

each count failed to state a claim against either Jones or Tention. McCray v. Jones. No.

21-CV-03937, 2021 WL 5864066, at *1-2 (D.N.J. Dec. 10, 2021). The Court noted that

“[njoticeably absent” from McCray’s complaint were factual allegations against Jones or

Tention that would give rise to liability for actions the federal government or California

took. Id. at *2. The Court further concluded that McCray failed to provide a legal basis

for her to sue under UIFSA, the SSA, or N.J.S.A. § 2A:14-1.2, which is a statute of

limitations provision. Id

McCray appeals.

II3

A

When reviewing a district court’s order dismissing under Rule 12(b)(6), we must

determine whether the complaint, construed “in the light most favorable to the plaintiff,”

3 The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of a district

court’s order granting a motion to dismiss. Burtch v. Milberg Factors. Inc.. 662 F.3d 212,

220 (3d Cir. 2011).

Judge Matey would vacate the District Court’s decision and remand with

instructions to dismiss without prejudice because McCray lacks standing to sue Jones or

Tention for the acts alleged in her complaint. See Dominguez v. UAL Corp.. 666 F.3d

1359, 1365 (D.C. Cir. 2012). Because her alleged injury appears to be “the result of the

independent action of some third party not before the court,” Judge Matey concludes the

causation element of standing “is not satisfied.” Mielo v. Steak n’ Shake Operations.

Inc., 897 F.3d 467, 481 (3d Cir. 2018) (quoting Finkelman v. Nat’l Football League, 810

F.3d 187, 193 (3d Cir. 2016)).

4

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Santomenno ex rel. John Hancock Tr. v. John Hancock Life Ins. Co.. 768 F.3d 284, 290

(3d Cir. 2014) (quotation marks omitted), “contain[s] sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face,”’ Ashcroft v. Iqbah 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corn, v. Twomblv. 550 U.S. 544, 570 (2007)). We

disregard, however, “rote recitals of the elements of a cause of action, legal conclusions,

and mere conclusory statements.” James v. City of Wilkes-Barre. 700 F.3d 675, 679 (3d

Cir. 2012). A claim will have “facial plausibility when the pleaded factual content allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged,” Thompson v. Real Est. Mortg. Network. 748 F.3d 142, 147 (3d Cir. 2014)

(quoting Iqbal, 556 U.S. at 678), or at least puts forth “allegations that raise a reasonable

■fee*

expectation that discovery will reveal evidence of the necessary element,” Fowler v.

UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (quotation marks omitted). We will

examine each claim under this standard.

B

McCray’s first claim seeks relief under 42 U.S.C. § 1983, which provides a cause

of action against state and local officers for “the deprivation of any rights ... secured by

the Constitution and laws” of the United States. Plaintiff asserts that Tention violated her

due process rights.

Civil rights actions must allege facts showing the defendants had “personal

involvement in the alleged wrongs.” Rode v. Dellarciprete. 845 F.2d 1195, 1207 (3d Cir.

1988); see also Evancho v. Fisher. 423 F.3d 347, 353 (3d Cir. 2005) (“The Third Circuit

5

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has held that a civil rights complaint is adequate where it states the conduct, time, place,

and persons responsible.”). This is true even where a plaintiff seeks to hold a defendant

liable under a theory of supervisory liability. So here, McCray must allege that Tention

“participated in violating [her] rights, directed others to violate them, or, as the person in

charge, had knowledge of and acquiesced in h[er] subordinates’ violations.” A.M. ex rel.

J.M.K. v. Luzerne Cnty. Juv. Pet. Ctr.. 372 F.3d 572, 586 (3d Cir. 2004). Allegations of

“actual knowledge and acquiescence” must be made with “appropriate particularity.”

Rode, 845 F.2d at 1207. Supervisory liability may also be available where a supervisor

implements or maintains a policy or practice that creates an “unreasonable risk” of a

deprivation of a constitutional right by her subordinates and the “supervisor’s failure to

change the policy or employ corrective practices” results in unconstitutional conduct.

Argueta v. U.S. Immigr. & Customs Enf t. 643 F.3d 60, 72 (3d Cir. 2011). “[T]he

connection between the supervisor’s directions and the constitutional deprivation must be

sufficient to demonstrate a plausible nexus or affirmative link between the directions and

the specific deprivation of constitutional rights at issue.” Santiago v. Warminster Twp..

629 F.3d 121, 130 (3d Cir. 2010) (quotation marks omitted).

McCray claims Tention deprived her of her rights under the Due Process Clause of

the Fourteenth Amendment. McCray’s complaint, however, fails to identify any actions

that Tention or her office took concerning the Arrears Order and offsets to her Social

Security benefits, tax refund, or federal stimulus check, or that Tention had knowledge of

those events. In fact, Tention is mentioned only in the caption of the complaint and in

6

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one paragraph identifying her as the “alleged director” of the Essex County Child

Support Enforcement Division. See Evancho. 423 F.3d at 353-54 (concluding pleadings

were insufficient where plaintiff did not allege any facts indicating high-ranking official

personally directed activities or had knowledge or acquiesced in those activities but

“hypothesize[d] that [the official] may have been somehow involved simply because of

his position”).4 As such, McCray has failed to allege personal involvement by Tention.

To the extent McCray made more specific allegations in her responses to the

motions to dismiss, we may not consider them because a party may not amend her

pleadings by making factual assertions in a brief. Pennsylvania ex rel. Zimmerman v.

PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988). The District Court therefore did not err

in dismissing Counts 1 and 3 of the complaint against Tention.

4 McCray’s complaint also contains several legal conclusions against all

Defendants, see, e.g., Compl. ^ 31-32 (App. 21) (alleging Defendants “caused the

[Order] to be effectively modified without due process of the law” and “deprived her [of]

a right to her full benefits in violation of the Social Security Act”), which we may not

consider in evaluating her complaint, see James, 700 F.3d at 679.

5 Count 1 of McCray’s complaint asserts a claim under § 1983 and Count 3 alleges

a violation of the Due Process Clause. The two claims are based on the same events,

allegations, and constitutional provision; as a result, the Due Process count is deemed

subsumed under § 1983. Rogin v. Bensalem Twp„ 616 F.2d 680, 686-87 (3d Cir. 1980)

(“[I]t would be a redundant and wasteful use of judicial resources to permit the

adjudication of both direct constitutional and § 1983 claims where the latter wholly

subsume the former.”). As a result, our ruling applies to both counts.

7

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C

The District Court also correctly dismissed Counts 2 and 4, which assert that

Tention and Jones violated UIFSA and the SSA, respectively.6

Both statutes contain provisions addressing enforcement of child support orders.

New Jersey has codified UIFSA at N.J.S.A. § 2A:4-30.124, et seq., and McCray

identifies “UIFSA section 600” as the basis for her relief, Compl. 30 (App. 21). Article

6 of UIFSA sets forth mechanisms for registration, enforcement, and modification of

support orders. See, e.g.. N.J.S.A. §§ 2A:4-30.168 to 2A:4-30.183. Title IY-D of the

SSA addresses enforcement of support obligations owed by noncustodial parents, 42

U.S.C. § 651, including collection and disbursements, 42 U.S.C. §§ 651-66%. Even

assuming McCray may bring a private claim under these provisions, she has failed to

allege how Tention or Jones participated in the collections activity about which she

complains. Although McCray asserts that “Essex County” sent the Arrears Order to

California, which then began the administrative offsets, she does not allege that Tention

was employed by “Essex County” at that time or was involved with the offsets. As to

Jones, McCray’s complaint lacks any specific allegations about him beyond his receipt of

payments under the orders. Indeed, she alleges that he took “no steps” regarding the

6 Jones did not file a brief in this appeal, but we will review the order dismissing

the claims against him.

8

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Arrears Order. Compl. 134 (App. 22). Thus, the District Court properly dismissed the

UIFSA and SSA claims against both Defendants.7

Ill

For the foregoing reasons, we will affirm the District Court’s judgment.

7 The District Court also properly dismissed Plaintiffs final claim, which cites to

N.J.S.A. § 2A:14-1.2. This provision merely sets forth the limitations period for civil

actions commenced by the state. McCray did not act for nor sue New Jersey and neither

Tention, an alleged county-level official, nor Jones, a private citizen, is subject to this

provision.

9

Appendix b

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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MARTIN LUTHER KING COURTHOUSE

50 WALNUT ST.

NEWARK, NJ 07101

973-645-5903

CHAMBERS OF

SUSAN D. WIGENTON

UNITED STATES DISTRICT JUDGE

December 10, 2021

Ivey McCray

929 Bonifant St., #1007

Silver Spring, MD 20910

Pro Se Plaintiff

Patricia Weston Rivera, Esq.

Law Office of Patricia Weston Rivera, Esq., P.C.

71 Valley St., Suite 201

South Orange, NJ 07079

Attorney for Defendant William Jones

Nicole Fisher, Esq.

Kecia M. Clarke, Esq.

Office of the Essex County Counsel

465 Dr. Martin Luther King Jr. Blvd, Room 535

Newark, NJ 07102

Attorneys for Defendant Carla Tendon

LETTER OPINION FILED WITH THE CLERK OF THE COURT

Re:

McCray v. Jones, et al.,

Civil Action No. 21-3937 (SDW) (LDW)

Litigants:

Before this Court are Defendants William Jones and Carla Tention’s (collectively,

“Defendants”) Motions to Dismiss pro se Plaintiff Ivey McCray’s (“Plaintiff’) Complaint pursuant

to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). This opinion is issued without oral argument

pursuant to Rule 78. For the reasons discussed below, Defendants’ motions are GRANTED.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was married to Jones until 1988, when they divorced in New Jersey. (Compl.

113.) Plaintiff and Jones have a daughter who was born during their marriage. (Id.) Although

Case 2:21-cv-03937-SDW-LDW Document 15 Filed 12/10/21 Page 2 of 4 PagelD: 171

their daughter initially lived with Plaintiff following the divorce, she began living with Jones in

1991. (Id.

13-14.) On November 21, 1997, the Superior Court of New Jersey, Chancery

Division - Family Part, Union County, entered an order requiring Plaintiff to pay child support to

Jones in the amount of $95 per week through the Essex County Probation Department. (D.E. 5-1

Ex. 3.)1 On November 3, 1999, the court entered a judgment against Plaintiff for unpaid child

support. (Id. Ex. 2.) By court order on May 31,2002, Plaintiffs child support obligation became

arrears only, in the amount of $100 per month, when her daughter graduated college and became

emancipated. (Id. Exs. 4 (“Arrears Order”), 5.) Plaintiff continued to fail to meet her payment

obligations and, on October 4, 2016, the Superior Court of New Jersey, Essex County, entered a

judgment against Plaintiff for the unpaid child support. (Id. Ex. 2.)

Plaintiff alleges that, in 2012, Essex County sent the Arrears Order to Alameda County,

California, where Plaintiff was residing, and the state administratively offset Plaintiffs Social

Security benefits by $100 each month from 2012 to 2019. (Compl. $ 21.) In 2018, Essex County

obtained a tax offset for Plaintiffs 2017 Federal tax refund and Plaintiffs motion for a return of

this money was denied. (Id. $$ 22-23.) In 2019, the Social Security Administration notified

Plaintiff that it would no longer deduct the $100; in March 2020, California notified Plaintiff that

it would no longer enforce the Arrears Order; and in June 2020, the Internal Revenue Service (IRS)

informed Plaintiff that it had paid Essex County her federal stimulus payment. (Id. f 24.)

Plaintiff filed this suit on March 2, 2021, alleging that the continued collection of child

support violated her legal rights. (D.E. 1.) She sued Jones, Tention (in her alleged capacity as

Director of the Essex County Child Support Enforcement Division), and Rashad Shabazz Burns

(in his alleged capacity as Director of New Jersey State Child Support Enforcement). (See Compl.

1fi| 9-11.) On May 12, 2021, Plaintiff voluntarily dismissed Bums from this case pursuant to Rule

41(a)(l)(A)(i). (D.E. 7; see also D.E. 8.) The Complaint asserts five counts: violations of 42

U.S.C. § 1983 (Count I); violations of the Uniform Interstate Family Support Act (“UIFSA”)

(Count II), violations of the 14th Amendment to the U.S. Constitution (Count III), violations of the

Social Security Act (Count IV), and violations of N.J.S.A. 2A:14-1.2. (Compl.

29-M8.)

Defendants subsequently filed the instant motions to dismiss. (D.E. 5, 11.) Plaintiff opposed both

motions and no replies were filed. (D.E. 10, 14.)

II.

LEGAL STANDARD

On a motion to dismiss under Rule 12(b)(6), the court must “accept all factual allegations

as true, construe the complaint in the light most favorable to the plaintiff, and determine whether,

under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v.

Cty. ofAllegheny, 515 F.3d 224, 231 (3d Cir. 2008). However, “the tenet that a court must accept

as true all of the allegations contained in a complaint is inapplicable to legal conclusions.

Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

1 Defendants attach records from the related state court proceedings. Such documents are subject to judicial notice

and may be considered without converting a facial Rule 12(b)(1) challenge into a factual one, or a Rule 12(b)(6)

motion into one for summary judgment. See S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181

F.3d 410, 426 (3d Cir. 1999) (synthesizing cases); Fraize v. Gov't Nat’l Mortg. Ass’n, Civ. No. 14-7152, 2016 WL

958392, at *3 (D.N.J. Mar. 14, 2016) (citing Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)).

2

Case 2:21-cv-03937-SDW-LDW Document 15 Filed 12/10/21 Page 3 of 4 PagelD: 172

do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Fowler v. UPMC Shadyside, 578

F.3d 203 (3d Cir. 2009) (discussing the Iqbal standard). While pro se pleadings are to be liberally

construed, “pro se litigants still must allege sufficient facts in their complaints to support a claim

... [and] they cannot flout procedural rules—they must abide by the same rules that apply to other

litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted).

III.

DISCUSSION

Plaintiff asserts five counts alleging that she was overcharged for child support, but each

count fails to state a claim against either Jones or Tention. Count I alleges that Essex County and

New Jersey violated Plaintiff s rights under the U.S. Constitution by collecting amounts over the

$100 per month set forth in the state court’s Arrears Order. {See Compl.

29-32.) Count II

alleges that Defendants violated the UIFSA by collecting amounts over $100 per month. {See id.

1fl| 33-36.) Count.III alleges that Essex County and New Jersey violated the 14th Amendment of

the U.S. Constitution by collecting child support arrears from her through the state of California.

{See id. 37-40.) Count IV alleges that Defendants violated the Social Security Act by collecting

arrears from her Social Security benefits during a time period when her daughter was no longer a

dependent child living with Jones. {See id.

41 —44.) Count V alleges that Defendants violated

N.J.S.A. 2A:14-1.2, which sets a ten-year statute of limitations for civil actions commenced by the

state, by taking advantage of California law, which Plaintiff claims does not have a statute of

limitations for collecting child support arrears. {See id. fflj 45-48.)

Noticeably absent from Plaintiff s Complaint are pertinent facts such as the amount of child

support that was actually collected and the total amount that Plaintiff owed under the Arrears

Order. Also absent are any factual allegations against Jones or Tention that would make them

liable for actions taken by the federal government or California. The Complaint and Plaintiffs

briefs further fail to state a legal basis for Plaintiff to sue under the UIFSA, the Social Security

Act, or New Jersey’s statute of limitations. To the extent that Plaintiff asserts claims against Essex

County and New Jersey even though they are not named as parties in this action, this Court notes

that Eleventh Amendment immunity bars suits by private citizens against non-consenting states in

federal courts, including suits for money damages under § 1983. See U.S. Const, amend. XI; Will

v. Mich. Dep’t ofState Police, 491 U.S. 58,71 (1989); Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89, 98—101 (1984). This immunity extends to state agencies and officials when the state

is the real party in interest. Trapp v. New Jersey, Civ. No. 17-10709, 2018 WL 4489680, at *3

(D.N.J. Sept. 19, 2018); see also Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 545 (3d

Cir. 2007); Pa. Fed’n of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002). After

reviewing the parties’ submissions in this matter, this Court is not persuaded that Plaintiff is able

to state cognizable claims against Jones or Tention for child support arrears that were withheld by

California, the IRS, or the Social Security Administration. Defendants’ motions will therefore be

granted with prejudice.2

2 To the extent that Plaintiffs real complaint is for injuries caused by the state court’s Arrears Order and judgments,

this Court notes sua sponte that Plaintiff s complaint is additionally barred by the Rooker-Feldman doctrine, which

“bars federal district courts from hearing cases ‘that are essentially appeals from state-court judgments.’” Nest v.

Nationstar Mortg., ILC, Civ. No. 16-4282,2016 WL 4541871, at *2 (D.N.J. Aug. 31,2016) (quoting Great W. Mining

3

Case 2:21-cv-03937-SDW-LDW Document 15 Filed 12/10/21 Page 4 of 4 PagelD: 173

4

IV.

CONCLUSION

For the reasons set forth above, Defendants’ motions are GRANTED and Plaintiffs

Complaint is DISMISSED WITH PREJUDICE. An appropriate order follows.

_____/s/ Susan D. Wigenton_____

SUSAN D. WIGENTON, U.S.D.J.

Orig: Clerk

cc:

Parties

Leda D. Wettre, U.S.M.J.

i

4

& Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159,165 (3d Cir. 2010)). The Rooker-Feldman doctrine applies when

“(1) the federal plaintiff lost in state court; (2) the plaintiff complains of injuries caused by the state-court judgments;

(3) those judgments were rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court

to review and reject the state judgments.” Great W. Mining, 615 F.3d at 166 (some punctuation omitted) (citing Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). This Court is not an appellate court in the New

Jersey family court system, and if Plaintiff seeks a review of the Arrears Order and judgments, she must pursue it in

New Jersey’s state courts.

4

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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

IVEY MCCRAY,

Plaintiff,

v.

Civil Action No. 21-3937 (SDW) (LDW)

ORDER

WILLIAM D. JONES, et al.

December 10, 2021

Defendants.

THIS MATTER having come before this Court upon Defendants William Jones and Carla

Tention’s (collectively, “Defendants”) Motions to Dismiss pro se Plaintiff Ivey McCray’s

(“Plaintiff’) Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), (D.E. 5,11), and this

Court having considered the parties’ submissions, for the reasons stated in this Court’s Letter

Opinion dated December 10, 2021,

IT IS on this 10th day of December 2021,

i

ORDERED that Defendants’ Motions to Dismiss are GRANTED, and

ORDERED that Plaintiffs Complaint is DISMISSED WITH PREJUDICE.

SO ORDERED.

/s/ Susan D. Wigenton

SUSAN D. WIGENTON, U.S.D.J.

Orig: Clerk

cc:

Parties

Leda D. Wettre, U.S.M.J.

i