Cataldo v. MosesCataldo v. Moses
OPINION
INTRODUCTION
This matter comes before the Court upon: (1) Plaintiffs appeal of Magistrate Judge Shwartz’s May 7, 2004 Order denying the reopening of discovery (“Discovery Order”); (2) the parties’ objections to Magistrate Judge Shwartz’s May 7, 2004 Report and Recommendation which granted Summary Judgment in favor of Defendants on Plaintiffs federal claims and declined to exercise supplemental jurisdiction over Plaintiffs remaining state claims (“Summary Judgment Report and Recommendation”); and (3) Plaintiffs Fed. R.Civ.P. 54(b) motion requesting that this Court vacate its March 31, 2004 Order adopting Magistrate Judge Shwartz’s March 8, 2004 Report and Recommendation that dismissed Plaintiffs New Jersey Tort Claims Act claims for failure to meet statutory notice requirements (“Dismissal Report and Recommendation”).
This case arises from plaintiff Angelo Cataldo’s termination from his position as
Magistrate Judge Shwartz has managed discovery and other pre-trial litigation in this case, which has been before her often during the over two years of vigorous and somewhat acrimonious litigation that has required thousands of pages of document analysis.
This Court has reviewed Judge Shwartz’s Summary Judgment Report and Recommendation, her Dismissal Report and Recommendation, and all submissions made by the parties pursuant to Fed. R.Civ.P. 78.
DISCUSSION
I. Plaintiffs Appeal of the May 7, 2004 Discovery Order Denying Reopening of Discovery
This court first considers Plaintiffs appeal of Magistrate Judge Shwartz’s May 7, 2004 Discovery Order which denied Plaintiffs March 17th, 2004 application to reopen discovery.
A. Background
In her May 7, 2004 Discovery Order, Judge Shwartz denied Plaintiffs March 17, 2004 application to reopen discovery and the summary judgment record. The request by Plaintiffs to reopen discovery was submitted five months after the 14-month discovery period had closed. In support of his application to reopen discovery, Plaintiff offered seven new certifications intended to contradict the reports written by Ms. Laura Simoldoni, the Equal Employment Officer of Plaintiffs workplace, that concluded that Plaintiff had violated employee workplace guidelines. Plaintiffs seven certifications were submitted at various times, including well after his application was submitted, from the following people: Sandra Palermo dated March 2, 2004, Rita Robins dated March 10, 2004, Amelia Teo dated March 17, 2004, Amy Leon dated March 19, 2004, Athanasios (Tom) Antono-poulos dated March 22, 2004, Lucy Hernandez dated March 25, 2004, and Eileen Davis dated April 8, 2004.
Plaintiffs appeal of Judge Shwartz’s denial of the motion to reopen discovery contained no brief of arguments on appeal. Rather, Plaintiff submitted a several hundred page attachment which enunciated no reasons as to why the Magistrate Judge’s ruling was clearly erroneous or contrary to law. The attachment included, inter alia, deposition transcripts, the original briefs to Judge Shwartz, and the certifications Plaintiff sought to admit.
B. Standard for Reviewing Non-Dis-positive Orders
The Magistrates Act requires this Court to apply the clearly erroneous standard of review upon appeal of the magistrate judge’s report on certain pretrial, non-dispositive motions. 28 U.S.C. § 636(b);
see also McDonnell Douglas Corp. v. Commodore Business Machines, Inc.,
C. Analysis
In denying Plaintiffs application to reopen discovery, Judge Shwartz applied the three-pronged test set forth in
Krouse v. Am. Sterilizer Co.,
The record indicates that Plaintiff had ample opportunity, time, and resources to conduct extensive discovery and to develop his facts, and he has provided no explanation as to why he could not previously submit the documents that he now seeks to admit. Completion of discovery was scheduled originally for June 1, 2003, but was extended by over five months until November 7, 2003. During the fourteen-month discovery period, the Plaintiff had opportunity to (and did) depose numerous individuals, including Defendants Moses, Goodman, Simoldoni, DeLaFuente, Buckles, Stylianou, Minihan, Tinghio, Gibson (formerly McMahon), and third-party witnesses Mary Demmer and Lynn O’Dell. Plaintiff submitted thousands of pages of these deposition transcripts to the Court. Plaintiff and Defendants also exchanged many documents, responses to interrogatories, and expert reports with supplemental answers. Many discovery disputes arose and were argued before Judge Shwartz and further resolved before this Court.
Plaintiff has also failed, to show that admittance of his submission would preclude summary judgment. He submitted no brief with legal analysis. His request to reopen discovery rested simply on general assertions and vague inférences, sometimes in attached cover letters, that the new certifications would somehow prove that Equal Employment Officer Si-moldoni’s reports about the Plaintiff were flawed. 1
Judge Shwartz correctly applied the
Krouse
test in denying the application to
II. Parties’ Objections to the Summary Judgment Report and Recommendation
This Court next considers the parties’ six objections to Judge Shwartz’s Summary Judgment Report and Recommendation.
A. Background
In her Summary Judgment Report and Recommendation, Judge Shwartz recommended that the Defendants’ motion for summary judgment as to Plaintiffs 42 U.S.C. §§ 1983, 1985 and 1986 claims (Counts I-IV) and breach of contract claims (Count VI) be granted, and that Plaintiffs remaining claims under the New Jersey Law Against Discrimination (“NJ LAD”) (Counts V, IX, 2 and XII) be dismissed for lack of subject matter jurisdiction. 3
Plaintiff objected that Judge Shwartz made the following five errors: (1) failing to consider all the disputed facts of this case; (2) holding that the Sea Clammers doctrine preempted Plaintiffs § 1983 age discrimination claim; (3) holding that Plaintiffs speech did not constitute a matter of public concern; (4) holding as an independent ground that Plaintiffs equal protection claim failed on the pleadings (in footnote 27) after having recommended summary judgment against Plaintiffs equal protection claim due to lack of evidence; and (5) finding that Plaintiff had not invoked Equal Employment Office (EEO) anti-discrimination procedures despite the alleged invocation being a basis of Plaintiffs “class of one” equal protection claim.
Defendants objected only to the portion of the Report and Recommendation that this Court decline to exercise supplemental jurisdiction over Plaintiffs remaining state law claims and to dismiss the same pursuant to 28 U.S.C. § 1367(a). 4
Neither party objected to Judge Shwartz’s five conclusions that Plaintiff: (1) did not have a property interest in his employment; (2) was not deprived of a liberty interest in obtaining future employment; (3) was not deprived of equal protection based on gender; (4) had no basis for his §§ 1985 and 1986 claims; and (5) did not have a valid breach of contract claim. These conclusions are thus adopted as unobjected and because they are correct.
See, e.g., Nyhuis v. Reno,
B. Standard
The Magistrates Act, 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b), as implemented in L. Civ. R. 72.1(c)(2), provides that a
de novo
standard of review should by used by the district court when considering a magistrate judge’s report and recommendation and subsequent objections by the parties. L. Civ. R. 72.1(c)(2);
see also State Farm Indemnity v. Fornaro,
C. Analysis
This Court now considers all five of Plaintiffs objections to Judge Shwartz’s recommendations to grant summary judgment (analyzed in points 1 — 5 below), and considers Defendant’s objection to Judge Shwartz’s recommendation to decline to exercise jurisdiction over the remaining three state law claims (analyzed in point 6 below).
1. Objection to Magistrate Judge’s Alleged Failure to Consider all Disputed Facts
Plaintiff contends that Judge Shwartz erred by not considering all the disputed facts of the case in that she (a) did not reopen discovery to include new certifications and (b) did not consider the entire fact record established during discovery. The first issue has been decided because this Court has affirmed Judge Shwartz’s denial of Plaintiffs application to reopen discovery (as discussed in Part I of this opinion). Thus, the new certifications are not within the factual record of this case and are not considered in this opinion’s summary judgment analysis that follows.
See Krouse,
Regarding Plaintiffs allegation that Judge Shwartz failed to consider the entire fact record, this Court finds the objection completely without merit. Plaintiffs statement of material facts submitted pursuant to Local Civil Rule 56.1 was a 106-page statement with 363 paragraphs of “undisputed material facts” plus a declaration that merely appended over 2,500 pages of deposition transcripts. Judge Shwartz reviewed the entire submission, but pointed out that Plaintiff violated the spirit of Rule 56.1 by submitting wholesale immaterial information. She stated:
... it appears [Pjlaintiff violated the spirit of Rule 56.1. Indeed, many of the paragraphs are not material and his wholesale submission of deposition transcripts contravenes the rule. Despite this violation, the Undersigned has carefully examined the entire record presented for its consideration.
Mag. J. Rep. & Rec., May 7, 2004, at 15, n. 11.
The purpose of a Rule 56.1 statement is “to narrow the issues before the District Court ...,”
id.,
and “save this court from having to drudge through deposition transcripts ... to determine the facts.”
See Comose v. New Jersey Transit Rail Operations, Inc.,
Judge Shwartz recommended the entry of summary judgment against Plaintiffs equal .protection claim based on age because the Age Discrimination in Employment Act’s (ADEA) comprehensive statutory scheme precludes Plaintiff from bringing suit under Section 1983, according to the Sea Clammers doctrine. She stated:
[ujnlike gender discrimination, a federal claim for age discrimination cannot be pursued under the Equal Protection Clause but can only be addressed under the Age Discrimination in Employment Act (the “ADEA”). The ADEA provides a comprehensive statutory scheme to prohibit job related age discrimination, see Zombro v. Baltimore City Police Dep’t,868 F.2d 1364 , 1364 (4th Cir.1989), and was structured to facilitate and encourage compliance through an informal process of conciliation and mediation.
Mag. J. Rep. & Rec., May 7, 2004, at 39.
6
Judge Shwartz applied the
Sea Clammers
doctrine, which states that “when a state official is alleged to have violated a federal statute which provides its own comprehensive enforcement scheme, the requirements of that enforcement procedure may not be bypassed by bringing suit directly under § 1983.”
Middlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n.,
Plaintiff argues that the Magistrate Judge misapplied the
Sea Clammers
doctrine. Citing
Sabree v. Richman,
Judge Shwartz carefully analyzed
Purtill v.
Harris,
Plaintiff contends, in a circular fashion, that even if the ADEA preempts § 1983 actions, an exception applies in his case because the Eleventh Amendment bars Plaintiff from suing the state under the ADEA, citing
Kimel v. Florida Bd. of Regents,
Kimel involved state employees who brought ADEA claims against state defendants.528 U.S. at 70-72 ,120 S.Ct. 631 . The issue before the Supreme Court was whether the ADEA abrogated the Eleventh Amendment, making states amenable to age discrimination claims under the ADEA. The Court found that Congress clearly intended that the ADEA abrogate the Eleventh Amendment, id. at 77,120 S.Ct. 631 , but that such abrogation exceeded Congress’ authority under Section 5 of the Fourteenth Amendment, id. at 91,120 S.Ct. 631 . Accordingly, the Supreme Court held that the Eleventh Amendment barred state employees’ ADEA claims against non-consenting states employers. Kimel anticipated the plaintiffs argument, however, noting that its holding “does not signal the end of the line for employees who find themselves subject to age discrimination at the hands of them state employers,” because they “are protected by state age discrimination statutes, and may recover money damages from their state employers, in almost every state of the Union.” Id. at 91,120 S.Ct. 631 & n. (citing, inter alia, N.J.S.A. 10:3-1, 10:5-1 et seq.).
Mag. J. Rep. & Rec., May 7, 2004, at 39-40.
This Court agrees with Judge Shwartz’s analysis of this issue. Kimel bars an ADEA claims against state employers, but Kimel does not imply that § 1983 claims may be brought against state employers as an end run around the comprehensive statutory scheme of the ADEA. The Supreme Court in Kimel, stated explicitly that such plaintiffs can pursue age discrimination claims under the NJ LAD. Accordingly, this Court finds that the ADEA provides a comprehensive enforcement scheme to preclude reliance on § 1983 as a remedy.
Finally, Plaintiff contends that even if he could have pursued age discrimination claims under the NJ LAD, he should have the availability of a federal forum to address his age discrimination claims, despite the Eleventh Amendment and
Purtil
bars. It is well settled, however, that there is no absolute right to adjudicate a claim in federal court.
Hoffman v. Goberman,
3. Objection to Finding that Plaintiffs Speech was not a Matter of Public Concern
Judge Shwartz recommended granting summary judgment against Plaintiffs First Amendment claim because Plaintiff failed to establish that: (1) he engaged in speech or an activity that relates to a matter of public concern; and (2)
Judge Shwartz detailed the legal standard for determining when speech is a matter of public concern as follows:
For speech to be protected, it must involve a matter of public concern. Azzaro v. County of Allegheny,110 F.3d 968 , 976 (3d Cir.1997). Speech addresses a matter of public concern when it can be reasonably related to “any matter of political, social or other concern to the community,” Watters v. City of Philadelphia,55 F.3d 886 , 892 (3d Cir.1995), and it “attempts to bring to light actual or potential wrongdoing or breach of public trust on the part of government officials.” Connick v. Myers,461 U.S. 138 , 148,103 S.Ct. 1684 ,75 L.Ed.2d 708 (1983); see also Feldman v. Philadelphia Housing Auth.,43 F.3d 823 , 829 (3d Cir.1994) (employee’s auditing reports intended to highlight improprieties, disclose corruption, fraud, and illegality in a government agency was speech pertaining to matters of important public concern). This means that public speech cannot “constitute[ ] merely personal grievances.” Id. (citation omitted).
In determining whether the employee’s speech addresses a “matter of public concern,” the Court must first consider the “content, form, and context of a given statement, as revealed by the whole record.” Connick,461 U.S. at 147-48 ,103 S.Ct. 1684 . Second, the Court must determine if the value of the expression outweighs “the government’s interest in the effective and efficient fulfillment of its responsibilities to the public.” Id. at 150,103 S.Ct. 1684 . Thus, a discharged public employee is entitled to no redress if his expression is not related to a matter of public concern or, even if it is so related, its value is outweighed by that of permitting the government to take action promoting efficiency and effectiveness. See Azzaro,110 F.3d at 976 .
Mag. J. Rep. & Rec., May 7, 2004, at 32-33.
Plaintiff contends that because he was employed by the state his reprimands of subordinate employees, even though they were made internally in the Bergen County civil division office, were matters of public concern and therefore must be protected by the First Amendment. In
Con-nick,
the Supreme Court set out the standard for protected speech by holding that for speech to be protected it must involve a matter of public concern and may not constitute merely personal grievances.
4. Objection to Finding on Failure to Satisfy Pleading Requirements for Equal Protection Claims
After Judge Shwartz analyzed Plaintiffs equal protection claims and recommended
[P]laintiff s verified complaint and pretrial order are devoid of any allegation or claim that the defendants acted under color of state law to intentionally treat plaintiff differently from other “similarly situated” individuals and that there was no rational basis for such treatment. Such pleading is required to survive a motion to dismiss. See Cinaglia v. Levin,258 F.Supp.2d 390 , 394-95 (D.N.J.2003); Little v. Terhune,200 F.Supp.2d 445 , 450 (D.N.J.2002).... Thus, the plaintiffs claim fails for, both lack of proof and on the pleadings.
Mag. J. Rep. & Rec., May 7, 2004, at 48, n. 27 (citations omitted).
Plaintiff objects to Judge Shwartz’s footnote because he argues that he properly set forth a short and plain statement alleging that Defendants violated his equal protection rights. Although the Federal Rules of Civil Procedure require only “a short and plain statement” of the claim in order to provide Defendants with fair notice,
Leatherman v. Tarrant County NICU,
5. Objection to Finding that Plaintiff Had Not Invoked EEO Anti-Discrimination Procedures Despite Its Invocation Being A Basis Of Plaintiff’s “Class of One’’ Equal Protection Claim
Judge Shwartz granted summary judgment against Plaintiffs Fourteenth Amendment “Class of One” discrimination claim because, inter alia, Plaintiff never invoked the EEO anti-discrimination procedures that Plaintiff claims were discrimi-natorily applied. She found that Plaintiff was incorrect in contending that memoran-da to the Defendants should be interpreted as an effort to invoke the procedures, even though the memoranda do not allege age or gender discrimination as required. Judge Shwartz explains:
[mjoreover, plaintiffs class of one theory that he was differently treated from others who invoked the EEO Policies fails. Plaintiff claims that the female employees who invoked the EEO Policies were treated differently from him because there was an investigation of their complaints but there was no investigation of his claims of retaliation. The type of retaliation about which plaintiff complained was more akin to his defense or explanation for why negative things were being said about him. It is not the sort of retaliation that the EEO Policies address. The EEO Policies’ anti-retaliation provisions protect those who invoke them to complain about illegal discrimination from facing negative job consequences. The retaliatory motive the plaintiff ascribes to his subordinates at the time was that they were disgruntled, not that they were motivated by illegal ageism or sexism. Given the way he presented his position to Mr. Goodman at the time of his memos, the plaintiff would be hard pressed to say that he was seeking protection for illegal discrimination. Indeed, plaintiff has offered no evidence that he asked the defendants to take any action other than to consider his explanation and his view of the motive of the complainants. In short, there is no evidence from which a reasonable juror could find that plaintiff was invoking the EEO Policies anti-discrimination and anti-retaliation provisions or even that the retaliation provisions applied. Thus, the plaintiff cannot claim the policies were applied differently to him.
Mag. J. Rep. & Rec., May 7, 2004, at 46-47.
Plaintiff now asks this Court to infer that valid discrimination allegations existed. However, even when viewed in the light most favorable to Plaintiff, no reasonable jury could infer from the circumstances and from what is lacking in Plaintiffs memoranda that he sought to invoke EEO procedures. Thus, Defendants were never even given the opportunity to apply the EEO policies to Plaintiff, much less apply them unfairly. 8
6. Defendant’s Objection to Recommendation to Decline Exercise of Supplemental Jurisdiction over Remaining NJ LAD Claims
After recommending summary judgment in favor of Defendants on all federal claims before trial, Judge Shwartz further recommended that this Court decline to exercise supplemental jurisdiction over Plaintiffs remaining NJ LAD claims (Counts Y, IX and XII). Mag. J. Rep. & Rec., May 7, 2004, at 49-50. Defendants request that this Court exercise supplemental jurisdiction over Plaintiffs NJ LAD claims because state and federal claims in this case share a common nucleus of operative facts and for reasons of judicial economy, convenience, and fairness.
The authority to exercise supplemental jurisdiction need not be exercised in every case in which it is found to exist.
United Mine Workers of America v. Gibbs,
This Court adopts Judge Shwartz’s recommendation to decline exercising supplemental jurisdiction over the remaining NJ LAD claims, with the exception of Plaintiffs gender discrimination claim based on the NJ LAD. In concluding that Plaintiff had not presented evidence to establish a prima facie case of deprivation of an equal protection of the law based on gender, Judge Shwartz applied federal legal standards substantially the same as the NJ LAD standards a New Jersey court would have applied when adjudicating gender discrimination claims.
See Bergen Commercial Bank v. Sisler,
III. Plaintiffs Rule 54(b) Motion to Vacate (a/k/a Reconsider)
This Court now considers whether to vacate its March 31, 2004 Order which dismissed Plaintiffs intentional tort claims for failure to meet New Jersey Tort Claims Act notice requirements, in light of new law recently handed down by the New Jersey Supreme Court.
A. Background
In Judge Shwartz’s March 8, 2004 Dismissal Report and Recommendation, she recommended the dismissal of Plaintiffs claims for intentional infliction of emotional distress (Count VII), civil conspiracy (Count VIII), defamation (Count X), and interference with economic advantage (Count XI). On March 31, 2004, absent the parties’ objections, this Court adopted Judge Shwartz’s Report and Recommendation. Plaintiff now argues that this Court must vacate that Order because the June 29, 2004 New Jersey Supreme Court decision in
Velez v. City of Jersey City,
B. Standard
As long as some claims are still pending in a case, a motion for reconsideration may be filed pursuant to Fed. R.Civ.P. 54(b) in order to vacate or revise a prior Order. The rule states “any order or other form of decision, however designated, which adjudicates fewer than all the claims ... shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all claims and the rights and liabilities of all the parties.” Fed.R.Civ.P. 54(b);
see also UGI Corp. v. Clark,
The purpose of a motion for reconsideration is “to correct manifest errors of law or fact or to present newly discovered evidence.”
Harsco Corp. v. Zlotnicki,
C. Analysis
In her Dismissal Report and Recommendation, Judge Shwartz applied existing case law to reach the conclusion that the New Jersey Tort Claims Act’s (“TCA”)
10
notice provisions applied to Plaintiffs intentional infliction of emotional distress, civil conspiracy, tortious interference with economic advantage, and defamation claims. At the time of Judge Shwartz’s Dismissal Report and Recommendation, the New Jersey Supreme Court had not yet ruled on whether intentional conduct was encompassed by a legislative amendment to the TCA that extended the notice requirements to maintain suits against public employees.
See Velez,
In 2004, the New Jersey Supreme Court, in its review of
Velez,
analyzed
Bon-itsis’s
interpretation of the TCA’s notice provisions.
Velez,
More importantly for purposes of the instant motion, the New Jersey Supreme Court concluded that it had created a new rule of law and that its decision requiring notice for all claims shall be “applied prospectively to all similar causes of action accruing after [June 29, 2004].”
Id.
at 297,
Although the New Jersey Supreme Court discussed the
Velez
Appellate Division’s ruling with regard to notice requirements for assault and battery claims only, thus suggesting that its ruling should be applied with partial prospectivity, the Supreme Court stated without qualification at the outset that “the issue in this appeal is whether the notice of claim requirements under the New Jersey Claims Act ... apply to common law intentional tort claims,” thereby suggesting that it considered the TCA’s notice provisions as applying purely prospectively to
all
intentional torts, not simply assault and battery.
Velez,
In light of Velez and the remand of Bonitsis, this Court shall vacate its March 31, 2004 Order, which dismissed Plaintiffs intentional tort claims for his failure to provide notice as required by the TCA. As these state law claims have only been analyzed by this Court pursuant to a motion to dismiss and have not been reviewed on their merits, this Court shall decline to exercise supplemental jurisdiction over them.
CONCLUSION
After having reviewed Judge Shwartz’s Report and Recommendation and the record of this case, including the parties’ objections and submissions thereto, this Court shall: (1) affirm Judge Shwartz’s Discovery Order denying Plaintiffs re
An appropriate order shall issue.
Notes
. Plaintiff conceded that these new certifications would have no bearing on his property or contract claims.
. Although Count IX is not explicitly mentioned in the Summary Judgment Report and Recommendation, it is a retaliation claim also based on New Jersey law.
. Plaintiffs other claims (Counts VII, VIII, X, and XI) of his 12-count complaint were previously dismissed and are discussed in Part III of this opinion in light of recently decided New Jersey law.
. Plaintiff's 19-page brief responding to this objection by the Defendant will not be entertained. Plaintiff's submitted this brief on May 27, 2004 without seeking leave of Court.
. In a similar vein, as previously discussed, Plaintiff's appeal of Judge Shwartz’s Discov
. In order to show how ADEA promotes a mediation process, Judge Shwartz further pointed out that a plaintiff suing under the ADEA must give sixty-days notice to the Equal Employment Opportunity Commission (EEOC). 29 U.S.C. § 626(d). Such notice is a prerequisite to bringing a suit designed to give the EEOC time to mediate the grievance “by informal methods of conciliation, conference, and persuasion.” 29 U.S.C. § 626(b). The right to commence a private action terminates upon the filing of an action by the EEOC. 29 U.S.C. § 626(c).
. Judge Shwartz recommended summary judgment in favor of Defendants on all three of Plaintiff's equal protection claims (age, gender, and "class of one”) on grounds independent of the Judge's note regarding Plaintiff's pleading. Plaintiff's objections with respect to age and "class of one” discrimination are considered in Part II.C.2 and Part II.C.5, respectively, of this opinion. Plaintiff made no objection with respect to gender. •
. This objection by Plaintiff was hardly clear, not citing a case and only a page and a half in length. Nonetheless, this Court has done its best to capture the basis of Plaintiff's objection as a "Class of One" claim.
. See analysis below as to the meaning of this phrase in the context of this case.
. The New Jersey Tort Claims Act provides that "no action shall be brought against a
public entity
or
public employee
under this act unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter.” N.J.S.A. 59:8-3 (emphasis added). The Act was a legislative response to the New Jersey Supreme Court's decision in
Willis v. Dept. of Conservation & Economic Development,
. Given her duty to predict how the New Jersey Supreme Court might rule on the issue, Judge Shwartz acted properly in concluding that the TCA's notice provisions applied to Plaintiff's intentional tort claims, pursuant to
Doe v. Division of Youth and Family Services,