Nicini v. Morra

798 entry I reverse the Accordingly, in would

nеcessarily the second. insignificant Russo, judgment in favor of above, summary agree I discussed For the reasons further proceed- remand the for information case that the omitted with the court ings. of substantial by Russo was misstated And, essentially the same for significance.

reasons, I that a factfinder also believe that, supplied, it find been

could would information

omitted and misstated effect on the

have had a determinative cause, in the face of probable even

issue positive identification.2 NICINI, Jr., Appellant

Anthony B. v. section, my In I stated previous MORRA; Jersey Depart- Edward New court that mis- agreement with the Russo’s Services, Health and Human ment of were reckless statement omissions Family Division of Youth and Ser- disregard the truth. But I have con- vices; Cyrus; Doe(s), a Frank John court, cluded, in disagreement with person persons; XYZ En- fictitious that, factfinder could find but for

that a entity tity (IES), a or enti- fictitious omissions, judicial the misstatement and ties an officer would not have issued arrest warrant, from which follows Russo’s Cyrus, Appellee Frank could found a factfinder to conduct be No. 98-5193. deprived have of a constitutional Wilson not to on the right. right be arrested of Appeals, United States Court of a warrant obtained on the basis basis Third Circuit. representations enforcement officer’s a law Argued Jan. 1999 disregard or omissions made reckless clearly right. Reargued the truth established En Banc Feb. is Christos, Lippay v. See 996 F.2d May Filed (3d (“If Cir.1993) police officer sub- he containing mits affidavit statements

knows to false or know are false be would recklessly disregarded

if he had not

truth, obviously the officer failed to ob- clearly right

serve a established.

Thus, immu- qualified he is not entitled

nity.”) fortiori, disagree custody constitutionally obligated

2. A also with the court's is to release I conclusion, opin- person seeking judicial in section III of the court's without interven- ion, Brady, sitting could have tion. In I wаs as a member of a that no reasonable factfinder my exculpatory panel, evi- an- found that the additional First Circuit affirmative gathered by subsequent question rejected by panel dence Russo to Wil- swer to the view, (As majority. my application pres- probable cause. son's arrest undermined notes, opinion supra p. the court’s see ent record of either the standard I endorsed occasion, Dill, adopted by Brady majori- Brady Brady, have had v. 187 F.3d or that (1st Cir.1999) (concurring), ty, preclude recovery on this basis. to ad- would question, Accordingly, I do not with the ultimate dress the further which the court in differ court; is, present case identifies but does not under- conclusion reached resolve, summary judgment appropriately who ac- affirmed take to whether an officer plaintiff's quires incontestably respect claim discussed in evidence which estab- person opinion.) lishes the section III of the court's innocence of holds Grimes, Joseph (Argued), P. Grimes n Hill,

Grimes, Grimes, Cherry Grimes & Jersey, Appellant. New Counsel Verniero, Attorney General of Peter (Argued), Jersey, Mary Jacobson New C. General, Counsel, Attorney Assistant Of Attorney Rodriguez, Deputy Yolanda C. Brief, Trenton, General, On the New Jer- Cyrus. sey, Appellee, Counsel for Frank 26,1999. Argued Jan. SLOVITER, McKEE, and

Before: RENDELL, Judges. Circuit En Reargued Banc Feb. BECKER, Judge,

Before: Chief SLOVITER, MANSMANN, NYGAARD, GREENBERG, SCIRICA, ROTH, ALITO, McKEE, RENDELL, and BARRY, Judges. Circuit THE COURT OPINION OF SLOVITER, Judge. Circuit Nicini, Jr., filed under Anthony suit § law against 1983 and state tort U.S.C. Family Cyrus, Specialist Frank Services Hu- Jersey Department of with the New Services, man Division of Youth and (“DYFS”), Family and other de- Services fendants, alleging they violated his consti- rights tutional because he was abused staying whom he was person custody. The District while in DYFS Court, all which had earlier dismissed the other defendants and against claims capacity against Cyrus, claim previously official he had told the princi- assistant pal that he granted summary judgment favor of would not return home.1 On October Cyrus on section 1983 claim and state DYFS received a call police Hill, him in from the against Cherry tort law claims his individ- New Jer- sey, holding ual that Nicini capacity, the facts of rec- had been located and that ord not establish he had repeated did a constitutional vio- his refusal to return home appeals. again lation. stated that his father was abu-

sive. Ex. at 28. That day, same a DYFS caseworker mother, contacted Nicini’s who I. said that she did want Nicini to return FACTS home, father, and his who could not identi- fy any relatives with whom Nicini could 1990, February fifteen-year-old An- stay. Nicini’s father came to DYFS to Nicini, Jr., thony was admitted to the John sign placement a foster care agreement.2 Kennedy F. Hospital’s Crisis Center (JFK) after apparent attempt. an suicide placed DYFS Nicini in the foster home became involved DYFS when JFK notified of Dennis Armente but Nicini away ran on allegations it of Nicini’s that his father had or before November 1990. After Nicini physically him. abused Two DYFS case- located, aunt, was his Catherine Living- JFK, responded workers to and Nicini told ston, agreed request to DYFS’s that Nici- father, them that he was afraid of his who ni stay with her. On or before December “punches “always a lot” and hits with 31, 1990, away again. Nicini ran once Liv- App. closed fist.” at 212. Nicini also said ingston had apparently become ill and that attempted he had suicide before. arranged DYFS for Nicini stay to with prosecutor’s DYFS notified the office of Nicini, Bonnie another aunt. then allegations and assisted his mother arranged that Nicini be evaluated obtaining temporаry restraining order psychiatrist, Dr. Trigiani. Charles Dr. against Nicini’s father. DYFS also as- Trigiani was unsure after ap- Nicini’s first signed caseworker Frank to Nicini’s 3, 1991, pointment January on whether case. required Nicini inpatient psychiatric care but agreed to recommend Nicini’s evalua- Nicini difficulty continued to have 10, 1991, tion at JFK. January On home and in school. According to a DYFS informed Trigiani’s Nicini’s mother of Dr. 27, 1990, report September dated Nicini requested recommendation and that she slashed his wrists that month in appar- bring Nicini to JFK. attempt ent suicide and thereafter left home after an argument with his happened mother. What thereafter is not clear report that Nicini “has no from states the record or appendices submit- go where to placement.” briefs, and needs App. parties’ ted with the apparently at 214. DYFS was informed on October Nicini was not admitted to JFK at that 1990, that Nicini However, was not at school and that time. report dated 1. See Opposition "accept provide Exhibits to Nicini’s Brief in custody and such care or Summary Judgment at 27 [hereafter may require”); the circumstances ... Mon "Ex.”]. County mouth Div. Social Servs. on Behalf C.R., 600, 603-05, N.J.Super. DYFS v. Although parties 2. have not educated us (de (N.J.Super.1998) 720 A.2d 1006-07 sc meaning agreement, as to the ap- of this ribing placement pursuant agreement pears may child come "[a] into the custo- whereby parents placing consented to DYFS dy placed of [DYFS] and be in foster care child in "paren foster care but retained their pursuant voluntary-placement either rights responsibilities,” legal tal and retained agreement aor court order.” Matter of right agreement to terminate the and ask J.C., 1, 7, Guardianship 129 N.J. 608 A.2d return, agreed for their child’s to make (1992); see also N.J. Stat. Ann. care). payments for the child's § (parent may apply 30:4C-11 for DYFS to Monday on Morras] contact[the rus will was at that Nicini (“PERP”) check on the Mor- perpetrator and had their children with gone to school any crimi ras, have revealed which would experiencing simi- with while stayed them the state of abuse in nal record of sexual 9,1991, February On family problems. lar any of such Jersey, including reports New they had DYFS that police the notified PERP check revealed to DYFS. The abuse Ac- home. at the Morra Nicini located nothing. Nicini report, incident cording to a DYFS “ready for to JFK but had been taken during the Cyrus interviewed Morras case- at 72. discharge.” Ex. A asking did not remember home visit. He (not Catherine Cyrus) contacted worker any contact they had ever had whether had known stated that Livingston, who she agency but he any law enforcement with that she the Morra home and Nicini atwas anything if asking Morra recalled Edward to her him to permit would not return becoming a foster him from prevent would spoke to Ni- then home. caseworker negative. replied in the parent, and Morra father, his belief expressed who cini’s good placement “not [a] Morras were appeared February Nicini On placement.” agreed weekend [who] the Honorable Vincent hearing aat before After original). (emphasis Ex. at the Chan- Family Part of Segal D. in the taking Nicini option being given of New Superior of the Court cery Division with whom locating relative home or does not Jersey. Although the record told the stay, Nicini’s Nicini could father hearing, the purpose make clear She, Livingston. speak to caseworker to apparently related both proceedings were course, to take already refused by Nicini and conduct to certain criminal Nicini back. aAs result placed. be to where should Nicini, permitted then The caseworker Ni- Segal Judge sentenced hearing, else,” anywhere refusing go “was who and also con- years probation cini to two home return to Morra Ex. at should remain cluded Nicini February Saturday, day, Cy- Morras. “Frank report states that The incident litiga- in this following psychologist retained in this and

3. The statements "expert re- designate the latter We Cyrus's deposition. tion. paragraph taken from are suggested Dr. party has port.” testimony have Neither of that Only portions some re- us; summary in this is inaccurate Atkins’s summarized provided others are been Atkins, spect. a forensic report of Dr. Eliot in the present apply para-foster custody and testified at the would if Nicini, ‍‌‌​‌​​​‌‌‌​​​​​​‌‌‌‌‌​‌‌‌​‌​​‌‌‌‌​​​‌​​‌‌​‌‌​​​‌‍mother, parents are willing to let them. hearing along with Nicini’s Nicini’s aunt. Livingston, and Catherine App. at 156-57. present were the Assistant Prosecu- Also Judge When Segal asked Nicini’s moth- County, Jersey, and tor for Camden New comments, er for her she stated as to the DeSimone, an attorney represent- Ronald Morras: Nicini. informed the court of ing prior placements and that Nicini:

Nicini’s [T]hey my have harbored oldest son on several occasions when he had taken currently family, with a friend and the off.... I personally, don’t know them family.4 with a the Morra He’s not foster only only what I had My heard. oldest — family. Tony family was with foster daughter goes to school with knows— Armento, initially, Mr. Dennis and he Morra, kids that friends with Eric are unofficially.... left the home son, their which I believe is 16 or

I’ve been I drugs. told he’s into not, just don’t know if true it’s but it’s Morras, Tony way found his to the who know, what I’ve I heard. don’t some- guess was a friend of his. The Morras thing just strange seems about these him, they they indicated knew would— people, why they they don’t would—if they they him and liked wouldn’t mind Tony, why they know would even take him staying there. He’s there now been him in. couple They for a of weeks. have indi- App. at 158. there, doing very cated that he’s well no problems. But that is not an official court, attorney suggested home, foster that’s an unofficial home. concerns, in light of these that Nicini drugs peri- “should also be monitored for App. 154-55. odically maybe something and—and should response to the query court’s whether looked in with family, be this Morra in of I light what Mrs. Nicini1had said think qualify para-foster the Morras would as maybe investigation or closer on whether parents, Cyrus stated: appropriate placement....” not that’s an would, they your Yes Honor. We’ve—so at 168. App. only far thing perp the I’ve done is a check, check, testimony perpetrator regarding and there’s Nicini’s own his with After stay positive. the Morras was nothing up. that’s come no— There’s recounting experienced the difficulties he nothing any prob- we’ve seen terms of place- with his and with parents prior think, Although lem with the I law. ments, relationship Nicini described his herself, speak Mrs. Nicini can for I think with the Morras: objections she has it on a some about family full time But the seems to basis. anything, I don’t love them or Tony, they an show interest towards they’re I can talk I mean people to. they keeping have said wouldn’t mind every ever since I been there almost him on a keeping temporary basis. Morra, night up talking I’ve been to Mr. him— He has since he’s been with been stable up his name is Ed. I’ve been most of the say right But like I them. now talking time tо him about how feel that’s— they family, are not an official foster my parents way about and the I’ve been all. although they they living I’m sure and how I’ve been treated and would— throughout scription. 4. We The Morras are referred to have therefore substituted Moores, transcript which, hearing of as the correct name. presume, we reflects an error in tran- hindsight, opportunity there no Judge Segal 164. Nicini also told was App. at up. until to follow tutoring that Morras him were in school. was re-enrolled 15, 1991, Cy- days March four after On Segal then summarized histo- Judge Morras, application rus sent ry at the hands of Nici- physical of abuse later Nicini fled the Morra home. He told a report pre- ni’s father and summarized investigators since the second third (not counselor pared by Nicini’s outreach there, day of his arrival Edward Morra Cyrus), that Nicini was no stated providing drugs which had been him with made a “fine ad- longer suicidal and had assaulting sexually. him Fur- alcohol and justment pres- to the location where he’s investigation ther revealed Edward Judge Segal at 166. ently located.” Morra been convicted New York “come[ ] would under the ruled that Nicini corrupting 1975 for the morals of minor DYFS, of that he supervision” care and and for distribution of controlled sub- long with the Morras “for so would remain In March stances to minors.5 follow- appropriate as thinks that’s an [DYFS] here, ing the events described Edward 167, and that placement,” App. at “[u]nder Jersey Morra was convicted New no circumstances return is[DYFS] currently serving and is sexual assault boy parents to the home of his without the forty-year term prison period state Court,” App. at authority of the twenty years. parole ineligibility Judge Segal specificаlly declined to order May suit in On Nicini filed drug monitoring despite request of United District Court for the Dis- States attorney there no in- Nicini’s because Jersey against trict of New Edward Mor- drugs dication that were involved ra, Jersey Department the New of Human matter. (“DHS”), DYFS, Cyrus. Services Ni- sparse again regard-

The record once alleged process cini a substantive due vio- ing period February the time after the pursuant § lation to 42 U.S.C. Family hearing. March Court On partic- various state tort law violations. In 1991, less than two weeks after the hear- ular, alleged “had actual ing, Cyrus forwarded to the Morras knowledge” objec- constructive and/or application para-foster parents. to become parents “awarding tions para-foster application process, defendant, Morra, custody to Edward summarized in letter to the Mor- inappropriate permitted in that ... [he] ras, requires completion application of an illicit narcotic and alcoholic use minors form, statement, financial a an authoriza- at App. his residence.” at 137. Nici- information, tion for release of ni police alleged Cyrus fully also “failed to form, agreement investigate reference and an and properly background between DYFS, Jersey, the state of New and Morra ... in [placing him] before Morra’s foster parent. applicant Cyrus The must also care” and that “had to or access fingerprint- requested schedule a visit to DYFS for could have an authorization ing, and Study DYFS conducts Home from Morra to conduct a criminal record Evaluation. The applicant’s fingerprints background check.” at 137. Nicini are alleged used to conduct a Nаtional Crime In- further and DHS DYFS had (NCIC). policy practice stitute Check The Morras never and that “no criminal back- and, application, returned the ground as we know check would be conducted of volun- minor, minor, 5. endangering The record does not reveal the exact the welfare nature of Edward Morra's New distributing York conviction. Ni- drugs and illicit ato minor. The appeal cini’s brief on it as cor- characterizes opinion District Court's describes Morra’s rupting the morals of minor and distribut- endangering conviction as for the welfare of a ing to minors. controlled substances Nicini's precise child. convic- The nature of Morra's however, action, complaint alleges in this we tion is irrelevant to the result reach. Morra convicted of sexual abuse of a custody in in tary guardians plaintiff Slip op. of children ed the Morra home.” guardian that, if was a resi- most, of defendants at The court Cyrus 15. held Jersey.” App. of the State of New dent negligent negligence and that was in- 140. liability sufficient to establish section 1983 Jersey or to defeat the New statutory 29, 1996, May By order dated the Dis- immunity. all against trict Court dismissed claims DHS, DYFS, Cyrus in his official ca- against Nicini’s claims Edward Morra oh im- pacity based Eleventh Amendment and, 11, 1998, proceeded February munity. Although complaint Nicini’s did granted court Nicini’s motion for a default explicitly damages against Cyrus seek judgment against Morra. The case was the court capacity, in his individual con- then Magistrate Judge referred to a stating strued it as such a claim. The a hearing conduct to determine the amount entitled to court held was not damages. of Nicini’s In an order dated immunity Eleventh Amendment and de- 6, 1998, Magistrate Judge March en- requests qualified nied his for absolute judgment by tered default Morra against immunity on the section claim. The $500,000 compensa- and awarded Nicini Cyrus’s request court also held that for $500,000 tory punitive damages. immunity Jersey under law New as to Magistrate Judge, pursuant premature. state'law claims was District orders May Court’s discovery, Cyrus

After moved for sum- 29, 1997, and October judg- also entered mary judgment. support, he submitted ment favor of the other defendants. affidavit in which stated that he appealed the order of March conducted a PERP check with the ' DYFS Although his notice of appeal registry required by pol- Central as DYFS challenge stated his intent the court’s icy when a child is a home which is not a May dismissing 1996 order the claims the PERP placement, check DHS, DYFS, against in his regarding revealed no criminal information capacity, official well as the court’s Oc- Morras, complete and that a more tober granting summary order background criminal check was unavailable judgment in favor his individu- himto at that time. Nicini filed no coun- capacity, challenge al Nicini has limited his ter with respect affidavit to those aver- before us to the latter order. We have ments. jurisdiction to review the final order of the In an order dated October pursuant District Court to 28 U.S.C. granted summary judgment District Court § 1291. Cyrus, holding that Nicini had failed to establish a constitutional violation and that II. his state law quali- claims were barred immunity Jersey fied under the New Tort STANDARD OF REVIEW Act, 59:1-1 seq. Claims N.J.S.A. et found, alia, poli- summary court inter that We an granting “DYFS review order novo, only require PERP judgment applying cies a check of families de the same not the by associated with state foster care standard used the District Court. See a program, Cyrus conducted such Sheet Metal Workers’ Int'l Assoc. Local Morra, Bros., Inc., 231, check.” v. Civ. No. 95- 19 v. Herre 201 F.3d 239 (D.N.J. 1997) (3d Cir.1999). 2303, 29, slip op. may 13 Oct. affirm the Dis We “Slip op”]. any grounds supported by The court held that trict [hereafter Court Nicini, Musco, Hedges by facts adduced even when the record. See v. 204 Cir.2000). him, (3d 109, favorably Summary viewed most to failed to F.3d 116 Cyrus judgment proper pleadings, demonstrate that “knew or is suspect- where depositions, interrogatories, ed the threat of sexual which await- to abuse answers 806

admissions, by an placement preceded show there is of a foster care and affidavits thoroughness investigation lacking of material fact and that so genuine no issue precision that it can be said to shock moving party judgment is entitled to 56(c). conscience,” right and held that such a as a matter of law. Fed.R.Civ.P. Cy review, clearly at the time of we established conducting our view In alleged rus’s violation. light record most favorable to Nici- deed, Cyrus dispute not that ni and all inferences in does draw reasonable rights protectable Nicini asserts are under his favor. Winnebago

section v. DeShaney 1983. Cf. III. Servs., 189, County Dep’t 489 Soc. U.S. of (1989) 195, 998, 109 S.Ct. 103 L.Ed.2d 249 NICINI’S SECTION 1983 CLAIM “ unjustified ... (right to ‘free[dom] To establish a claim under 42 ”) security’ personal (quoting intrusions on 1983, § plaintiff a must U.S.C. demon 651, 673, Ingraham Wright, v. 430 U.S. 97 a right protected by strate a violation of (1977)). 1401, 711 S.Ct. 51 L.Ed.2d Nor Constitution laws of the United Cyrus dispute acting does that he was person committed a States contends, under color of state law. He acting under the color of state law. See however, that Nicini has not established a (3d Tedder, 1199, Kneipp v. 95 1204 F.3d “[tjhere constitutional violation because is Cir.1996). step evaluating The first a way no that Mr. should or could “identify 1983 claim to section is the exact tragic have events known about underlying right contours of the said to Appel would occur at the Morra home.” have been violated” and to determine lee’s Br. at 13. Nicini replies plaintiff alleged depri “whether the has rights violated his constitutional right vation of a constitutional at all.” conduct a full “failing] complete Lewis, County Sacramento v. 523 U.S. of investigation Appellant’s of Morra....” n. 841 118 S.Ct. 140 L.Ed.2d Br. argument at 16. Nicini’s relies on the (1998). 1043 principle ‘placing “a state’s role gives children in foster homes’ rise Nicini’s section 1983 claim rests on right protection constitutional the Due Process Clause of the Fourteenth Appellant’s child-” Br. at 13. Al- He invokes the Amendment. substantive though propo- does not contest that component process, “protects of due which sition, we must first determine whether liberty against govern individual ‘certain valid, principle open question an regardless ment actions of the fairness of ” this circuit. the procedures implement used to them.’ Tex., City Heights, v. Marker Collins A. 115, 125, 112 U.S. S.Ct. (1992) (quoting L.Ed.2d 261 Daniels v. general proposition, As Williams, 474 U.S. 106 S.Ct. protect state’s failure individual (1986)). Specifically, 88 L.Ed.2d 662 Nici against private violence does constitute ni alleges Cyrus, acting color under process. DeShaney, violation due law, deprived state him right of “the to be Thus, U.S. at in De- S.Ct. 998. free from infliction of unnecessary pain Shaney the Court held that a child who ... right or abuse fundamental and the severely by was beaten so his father that (Nicini’s physical safety.” App. at 52 brief permanent he suffered damage brain did in opposition summary judgment). to against a claim agency have the state In denying Cyrus’s request qualified for for process violation of his substantive due claim, immunity on that rights by failing the District Court to remove him from his interpreted Nicini to right custody although agency person assert a “to be father’s free deprivation liberty by from of nel reason to reason had know of abuse.

807 However, “in recognized the State the affirmative exer “[h]ad Court power cise of its certain limited circumstances Constitu removed Joshua from free society placed the State affirmative and him in a imposes upon tion foster home protection respect operated by agents, might of care with its duties we have a 198, at particular sufficiently analogous to individuals.” Id. 109 situation to incarcer examples of in ation or give S.Ct. 998. As situations institutionalization to rise to duty, duty protect.” the state such a the Court an affirmative to which has Id. at 201 Gamble, 9,n. its decision in Estelle v. 429 109 S.Ct. 998. The cited Court noted that 97, 285, L.Ed.2d 251 appeals already U.S. 97 S.Ct. 50 several courts of (1976), Eighth duty that the Amend found such a which held the foster care con un prohibition against ment’s cruel and text but declined to comment on the merit of punishment required (citing usual the state “to those decisions. See id. Doe v. Servs., to incarcer provide adequate City Dep’t care New York Social 649 medical (2d Cir.1981); DeShaney, prisoners,” Taylor ated 489 U.S. at F.2d 134 v. Ledbet (11th (en 198, 998, ter, Cir.1987) and Youngberg 109 S.Ct. v. Ro 818 F.2d 791 banc)). meo, 807, 2452, 457 U.S. 102 S.Ct. 73 (1982), L.Ed.2d 28 which held that sub After DeShaney, many of our sister process “requires stantive due to State appeals courts of held that foster children provide involuntarily pa committed mental have process right a substantive due to be necessary tients with such services as are free from harm at the hands of state- safety’ their ‘reasonable ensure See, regulated parents. foster e.g., Lintz others,” DeShaney, themselves and 489 (6th 304, Cir.1994); v. Skipski, 25 F.3d 305 (citation 199, at 998 omit U.S. 109 S.Ct. Dep’t v. Arkansas Human Norfleet Servs., ted). (8th 289, Cir.1993); 989 F.2d “dut[y] Dep’t The state’s affirmative of care Yvonne L. v. New Mexico Human (10th 998, Servs., protection,” id. at 109 S.Ct. 959 F.2d 891-93 Cir. 1992); Morgan,

in those cases “not from the K.H. v. F.2d stemmed 848- (7th Cir.1990). knowledge pre- State’s of the individual’s These courts have ac expressions cepted analogy persons dicament or from of intent its ‍‌‌​‌​​​‌‌‌​​​​​​‌‌‌‌‌​‌‌‌​‌​​‌‌‌‌​​​‌​​‌‌​‌‌​​​‌‍between him, help places but from the limitation which state in foster care and those it See, e.g., it has to act on imposed his freedom incarcerates institutionalizes. (“Once K.H., own In behalf.” Id. 109 S.Ct. 998. 914 F.2d at 849 the state holding custody person, that the state did not have such a of a it him a assumes owes ...”); “special relationship” rudimentary duty safekeeping Joshua DeSha- L., ney, explained that (discussing “[w]hile the Court the Yvonne 959 F.2d at 891-93 may dangers approving imposing liability State have been aware of the cases context). world, that Joshua faced in the free it foster care creation, played part no their nor did suggested, although have never di- We anything any do to render him more vul- held, rectly duty that state actors owe a Id. nerable to them.” 109 S.Ct. D.R., placed children care. foster 998.6 1368-73, public 972 F.2d at we held that a particular significance to the high allegedly Of matter school student who was sex- us, suggested ually during before the Court also molested other students upon language relationship 6. Courts have seized between state the victim. DeShaney exception to fashion another D.R. v. Middle Bucks Area Vocational Tech. general absolving liability rule state actors of Sch., (3d (en Cir.1992) 972 F.2d by private parties: harm caused state- banc). argued Nicini has not in this case that danger theory. theory "predi- created This apply danger we the state-created the- should upon cated the states’ affirmative acts which Rather, ory. proceeded solely under he has plaintiffs’ work to detriments in terms of ex- "special relationship” theory. posure danger” special upon a rather than harm, an either as a custodian or as maintain a claim hours could not school “special functionally in plaintiff based on actor” and that against school officials public theory. custody forcibly We held where he was de- relationship” state comparable owner, were not high po- school students tained and beaten bar with involuntarily committed prisoners or the approval). to lice [students’] “parents remain because in D.R. and We find our discussion caretakers,” id. at and be primary the other the numerous decisions of courts “may persons turn to unre cause students appeals persuasive. on this issue Fos basis,” help daily on a lated to the state for children, ter like the incarcerated or the that this court id. at 1372. We also noted committed, in involuntarily “placed ... are “setting DeShaney as principally has read ... [and environment un are] custodial at custody.” Id. physical a test of out living arrange alternative to seek able we cited our proposition, 1370. For this Ledbetter, Taylor ments.” v. 818 F.2d in Police & Fire Philadelphia decisions banc). (11th Cir.1987) (en now We Children, Handicapped Association for places hold that when the state child City Philadelphia, 874 F.2d Inc. v. care, the state has state-regulated foster (3d Cir.1989) apply to (refusing, special relationship entered into impose special relationship exception imposes upon that child which certain duty pro “to upon the an statе affirmative perform affirmative duties. failure to living at mentally tect retarded rise, give sufficiently under such duties can home”), and v. Greenwich Fialkowski circumstances, culpable liability under (3d Children, Inc., Home 921 F.2d 459 section 1983. Cir.1990) performed mental (entity that county intake services for the and health that the recognize analogy We between mentally plaintiffs’ retard which referred prison foster children on the one hand and duty adult him no affirmative ed son owed persons ers and institutionalized on the voluntarily parents care because For incomplete. example, other is foster and free placed Mm the institution were children, ones, especially enjoy older him). to remove and greater degree of freedom are more D.R., recognized In that “some we likely steps to be able to take to ensure duty imposed courts have a constitutional Nonetheless, safety. any their own' dis by analogy foster children protect placed tinctions children in foster between individuals,” involuntarily institutionalized prisoners care issue Estelle stated, 972 F.2d at albeit mentally or the institutionalized retarded dictum: Youngberg are matters persons issue n A relationship the state and between degree rather than of kind. See Nor the state’s foster children arises out of fleet, (although 989 F.2d at 292 there is a finding act in the children affirmative relationship closer between the state placing state-approved them with prisoners than between the state and fos By doing, families. so the state assumes children, sufficiently ter “the situations are immedi- important continuing, if not analogous”). In each of these cases ate, responsibility for well- the child’s act, state, by affirmativе renders the indi addition, being. place- child’s substantially “dependent upon vidual dependent ment renders him or her ... state to meet basic needs.” [his her] state, upon through fami- the foster D.R, 972 F.2d at 1372. ly, to meet the needs. child’s basic (citations stay omitted); We are aware that Nicini came to Id. see also Horton v. (3d Cir.1989) with the Morras on his own initiative and Flenory, 889 F.2d (holding DeShaney officially ap- is limited “to situ the Morras were proved by ations in which the is not involved in the state as either foster or state However, Cyrus para-foster parents.7 does cient with relationship the state to state a not contest Nicini was DYFS cus- 1983, cause of action under section we turn tody throughout period. relevant to the District Court’s determination that Furthermore, replete the record is summary judgment appropriate was be- substantially evidence that de- Cyrus’s cause actions did not amount to a pendent upon DYFS and DYFS ac- violation of Nicini’s constitutional rights. quiesced stay the Morra We must first determine what level of 10, 1990, home. At least October when egregious conduct is enough to amount to signed place- Nicini’s father a foster care and, then, a constitutional violation wheth- agreement, ment DYFS able ar- er there is sufficient evidence that range for his placement. foster At some conduct rose to that level. point, Superior Jersey Court of New custody awarded of Nicini to DYFS and begin We with the decision in DHS.App. at 136. Nicini was thereafter County Lewis, Sacramento v. 523 U.S. of placed on several occasions with DYFS- 833, 118 S.Ct. 140 L.Ed.2d 1043 approved parents foster and with rela- (1998), Supreme where the granted Court appears tives. It also police after the certiorаri “to resolve a among conflict located Nicini at the Morra home and took Circuits over the culpability standard of JFK, him to DYFS returned him to their . the part of a law enforcement officer for objections home over the of his aunt and violating process substantive due pur facts, his father.8 Under these we believe suit case.” Id. at 118 S.Ct. 1708. In sufficiently Nicini’s situation is analogous “ Lewis, the emphasized Court placement ‘[t]he to a foster care to fall within touchstone of due “special process protection relationship” exception to of De- Shaney. against individual arbitrary action of government.’” Lewis, 523 U.S. at B. 118 S.Ct. 1708 (quoting v. McDon Wolff nell, 539, 558,

Having established that 418 U.S. Nicini has 94 S.Ct. alleged (1974)). a protected interest and a suffi- L.Ed.2d 935 It then noted that parties' 7. pre- briefs are silent regardless as to the already of whether the child is meaning cise "para-foster” supervision, of "foster” and under DYFS and which DYFS argument, approves payment approval pro- care. At we were for informed that after an parents completed.” approved general foster are cess is for the at 171. Unlike placement parents, para-foster parents "ap- of foster are ap- foster children rather than proved by proved placement DYFS for the particular for the income maintenance particular to [a] services child and not child. See also N.J. § for Admin. Code tit. (DYFS placement of other foster children.” Id. regulations defining 122B-1.4 foster suggest pre- Nicini does not parent "any that DYFS was person approved by the Divi- approving stay cluded from general with the Mor- placement sion for the of children in they parents para- ras if werе home”). neither foster his or her own parents. foster "Para-foster” care is not defined in the stat- regulations governing ute or DYFS. The cur- Livingston objected seems to have on the however, regulations, "para rent refer ground boy that Nicini "was a sick who need- care,” involving defined as "a service hospitalization.” ed Ex. at 67. The DYFS placement private family aof child in a home report objection incident that documents the DYFS, by anyone other than and which DYFS of Nicini’s father does not contain the basis approves payment approval pro- after an (he objection apparently for his testified at his completed.” cess is N.J. Admin. Code tit. deposition that he informed DYFS case- 10, § 10:15-1.2. This is similar to a definition worker named Diana Smith of his belief that care,” "para-foster effective March runaway the Morra home was a "haven for Operations contained in a DYFS Field manual juveniles,” App. (expert report)), at 250 but it part appendix submitted to us as of the clearly agreed states that he to weekend appeal which refers to "foster placement care service report with the Morras. The same involving placement private of a child "custody Anthony in a states DYFS, family by anyone through home other than court order.” Ex. at 70. com- largely uncomplicated pulls rather challenge is to executive where the action, “only peting obligations.” Id. at 118 S.Ct. most legislative than It “high speed followed that chases can be said to be conduct egregious official ” suspects physically with no intent to harm sense.’ ‘arbitrary in the constitutional legal plight give or to worsen their do not 846, (quoting 1708 Collins Id. at S.Ct. 118 115, liability rise to undеr the Fourteenth 129, 112 Heights, v. 503 U.S. Harker 854, (1992)). Amendment.” Id. at 118 S.Ct. 1708. 1061, L.Ed.2d 261 Mere S.Ct. 117 however, recognized, The that in Court sufficient for substan negligence is never falling some conduct within a mid- contexts liability. See Daniels v. process due tive is, range culpability involving dle of 662, Williams, 327, 106 S.Ct. 88 474 U.S. —that negligence than than inten- more but less Lewis, (1986). Under sub L.Ed.2d 662 shocking tional conduct—can be in the only liability attaches process stantive due constitutional sense. As the Court ex- is “so ill-conceived to executive action that plained: or that ‘shocks the con malicious ” process subject ... Rules of due are not City . Philadelphia, science.’ Miller v. of Cir.1999) to mechanical in unfamiliar (3d application 368, (quoting 174 375 F.3d that 1708). territory. Deliberate indifference Lewis, 846, 523 U.S. at 118 S.Ct. may in one shocks environment not be degree wrongfulness The nec “exact of patently egregious in another.... so essary ‘conscience-shocking reach 850,118 Id. at S.Ct. 1708. depends upon circumstances of a level ” At particular case.’ Id. at 375. issue Lewis therefore makes clear officers police Lewis was the conduct plaintiff seeking to establish a constitution engaged in which the Court pursuit, al violation must demonstrate the offi prison contrasted with the conduct of offi cial’s conduct “shocks the conscience” liability Eighth cials who face under particular setting which that conduct “deliberately indif they circumstances, Amendment if are In occurred. some conduct prisoners.” ferent to the medical needs of their deliberately that is indifferent will shock is, 850, 118 Indeed, Lew 523 U.S. S.Ct. the foster care conscience.. Gamble, 97, (citing context, 1708 Estelle v. 429 U.S. most of the have appeals courts (1976)). 285, 97 251 S.Ct. 50 L.Ed.2d the deliberate indifference stan applied dard, very they noted term although “[a]s Court have defined that See, implies, slightly ways. indifference’ the stan standard in ‘deliberate different Chambliss, sensibly only e.g., actu employed dard is when White v. 112 F.3d 737 (4th Cir.1997) practical,” (liability al and “in the if deliberation is defendant was prison, forethought “plainly custodial situation placed danger on notice of a only welfare is not feasi chose to ignore danger”); Taylor, about inmate’s 818 (foster obligatory.” ble but Id. at 118 S.Ct. F.2d at 796 child must show “actual “ knowledge agency person 1708. The Court also noted that ‘the of abuse or that responsibility deliberately State’s to attend the med nel failed to learn what was home”); prisoners occurring ical needs of ... does not ordi in the foster Doe v. Servs., narily equally important City Dep’t clash with other New York Soc. ” (2d Cir.1981) (deliberate governmental responsibilities.’ Id. at in F.2d 851-52, (quoting Whitley 118 S.Ct. 1708 v. difference “cannot exist absent some Albers, 1078, knowledge triggering duty 475 U.S. 106 S.Ct. an affirmative (1986)). may L.Ed.2d 251 to act.... Defendants be held liable ... [for]' deliberate indifference to context, police In the pursuit the issue risk, injury, known a known specific or a Lewis, presented in officers do not have duty”). enjoyed by “the luxury prison officials of Miller, having time judgments, to make unhurried In we evaluated the actions of a reflection, upon the chance repeated receiving allega- social worker who after Brennan, v. separated a child from her Farmer 511 U.S. tions of abuse (1994), 114 S.Ct. 128 L.Ed.2d 811 that “ex- parent natural under a standard Court clarified the deliberate indifference deliberate indifference.” ceedfed] ..... applicable challenging standard in suits Miller, held that the 174 F.3d 375. We prison Eighth conditions under only if conduct worker ‍‌‌​‌​​​‌‌‌​​​​​​‌‌‌‌‌​‌‌‌​‌​​‌‌‌‌​​​‌​​‌‌​‌‌​​​‌‍would be liable adopted subjeсtive Amendment. It stan gross “a negligence reached level of liability dard of consistent with reckless indeed the con- shocks arbitrariness ness as term is defined criminal omit- (quotation science.” Id. at 375-76 law. The held that “a prison Court official ted). that although also stressed “a We cannot found liable ... unless the offi be acting separate parent social worker to disregards cial knows of excessive usually hyper- and child does not act in the safety; risk to inmate health offi pressurized prison environment of a riot or cial must both be aware of facts from ..., rarely high speed chase he or she which the inference could be drawn that a' luxury of in a proceeding will have the exists, substantial risk of serious harm Cyrus, deliberate fashion.” Id. at 375. he must also draw the inference.” Id. at Miller, the social worker in unlike . 837, 114 S.Ct. 1970 judgments” “to make unhurried time whether to Nicini to investigating permit require This case does not us to deter- Lewis, remain the Morras. 523 U.S. mine whether an official’s failure to act in 853, at In the context of 118 S.Ct. 1708. light of a risk of which the official should case, agree Cyrus’s known, we that this actions have to act in opposed as to failure risk, investigating the Morra home should be light actually of an known constitutes judged deliberately the deliberate indifference conduct in under indifferent' this set- ting.10 Ni- arguendo standard.9 We will assume that Supreme lenges prison Youngberg, 9. We that in to conditions does not necessar note "professional” ily apply process Court that decisionmak- held to substantive due claims violating City be the substan ers would liable of a foster child. See Reverev. Massa process rights involuntarily tive due of an Hosp., 463 chusetts Gen. U.S. 103 2979, mentally plaintiff (1983) (pretrial institutionalizеd retarded if S.Ct. 77 605 L.Ed.2d depar their conduct was “such a substantial process detainees entitled under due to "at accepted professional judgment, ture from great” protection least as as is afforded con practice, or as to demonstrate that standards prisoners Eighth victed under the Amend responsible person actually Co., did base ment); not Equip. Spencer Knapheide v. Truck judgment.” Cir.1999) (declin the decision on 457 U.S. 902, (8th such 183 F.3d 906-07 323, applied 2452. We test 102 S.Ct. pretrial ing detainee's to decide whether virtually Young facts identical to those in subjective judged be Farmer’s claim should Strackhouse, berg in Shaw v. 920 F.2d by objec deliberate indifference standard or (3d Cir.1990). 1142-46 See also Winston v. Kozakiewicz, standard); Boring tive v. 833 cf. Servs., Children & Youth 948 F.2d (3d Cir.1987) (suggesting F.2d 472 (3d Cir.1991) (applying 1390-91 standard to apply Eighth Amendment standard "[t]o challenge by parents policy grant natural to mentally persons would be little to retarded care); ing rights visitation to children in foster barbarous”). Nevertheless, we note short L., (Eleventh Yvonne 959 F.2d at 893-94 Cir appeals the courts of have after Farmer applied professional judgment test cuit purely subjective tendency apply a shown a context, emphasized test is foster care standard outside the deliberate indifference essentially same as deliberate indifference See, Eighth e.g., Gant v. Amendment context. test). of Educ., Wallingford F.3d 141 n. Bd. (2d Cir.1999) (rejecting have "should response inquiry, to our neither Nicini process action chal known” standard in due Cyrus suggested professional nor lenging conduct of school and other Therefore, officials judgment appropriate. standard is responding complaints whether, defendants we do not decide consistent with Qian student); against v. Lewis, rаcial harassment applied Cy- that standard could be Kautz, (7th Cir.1999) 955-56 168 F.3d rus's conduct. (detainee's judged by process due claims Corinth, standard); City recognize Hare v. 10. We that the indiffer- Farmer Miss., deliberate Cir.1996) (same). (5th applicable chal- 74 F.3d ence standard in Farmer to deliberately of “should have around whether in- proposed cini’s standard Nevertheless, any respect. different in applicable. known” is clear, inquiry Lewis the relevant makes affidavit, Cyrus In his stated: whether the defendant’s conduct “shocks procedures re- policies The DYFS the conscience.” quired perpretrator conduct a “PERP” check with the [sic] DYFS Cen- case, Under the circumstances of this we Registry tral a child at a up when ends agree Cyrus’s cannot conduct meets placement. home which is not a DYFS contrary, that standard. To the we con- I conducted one. The PERP check re- investigating clude that conduct regarding vealed no criminal information amounted, most, to negli- Morras can Na- Morras. DYFS not access reason, gence. For the same we need (“NCIC”) tional Crime Institute Check . perform failure a spe- consider whether background ... nor a criminal State duty cific can ever amount to deliberate check. indifference, 797; Taylor, see 818 F.2d at App. at argue 145. Nicini does not that Doe, at 649 F.2d as there is no evi- Cyrus ap- failed to act in accordance with dence that to Cyrus perform any failed plicable policy procedure. and required duty. Cyrus’s liability, To establish Nicini of- Atkins, only report fered the of Dr. the C. psychologist proffered as an expert, Cyrus that should have done more than The District that Court held required by was of him practices DYFS’s evidence, Nicini, favorably viewed to most procedures. portion and The relevant Cyrus’s failed to establish that conduct report that states: “deliberately was indifferent” to Nicini’s In light of the information to available rights. The court held that Nicini “fail[ed] Frank Cyrus at the time of his investi- Cyrus suspected to establish that or knew household, gation of the Morra particu- danger that awaited in the [Nicini] larly the criminal record of Morra which home,” slip op. “by Morra and that was a matter of public record and which following procedures standard DYFS and could appro- have been obtained an informing family judge scope court priate police national record search with investigation, Cyrus’s of his failure to dis permission being required of Morra cover that conviction does not shock the by Cyrus prior placement, to it is the conscience or demonstrate his deliberate opinion of clinician that this investi- indifference to disregard or reckless gation was conducted with total indiffer- rights,” constitutional [Nicini’s] id. at 13. ence to all available that facts were clearly any material to social worker appeal, On Nicini contends the Dis- upon who would be called to make trict such narrowly Cyrus’s Court too construed placement. responsibility by looking Cyrus to whether knew suspected or that Morra had a histo- evident, App. at 253. As is Dr. Atkins ry of abusing children rather than whether Cyrus believed that should have undertak- Cyrus suspected place- knew or that the (which en police a national search the psy- ment was opinion granting unsafe. In its chologist recognized required Morra’s con- summary judgment, sent) the District Court though even the Morras were not stated thе exclusive complaint focus of the applicants to become official DYFS fos- Cyrus’s, involved failure to discover Mor- ter family para-foster family. or Dr. At- ra’s background. criminal Slip op. at 9. explained never Cyrus kins how could have accept Even if we Nicini’s of performed broader view psychologist what the termed complaint, change would not “appropriate police national record appeal, outcome of the which still revolves search” without cooperation Morra’s parently, attorney, sworn did he inform who responded state- never not access the National nothing ment that he could likewise mentioned of the assaults Thus, Information Center. hearing. Crime at the the record reveals Cyrus little from which could have inferred point requirement to a state Unable to Nicini faced “substantial risk of violated policy procedure or a DYFS Farmer, serious harm.” U.S. Nicini nonethe- Cyrus, argues 114 S.Ct. 1970. that a should have been on notice less Morras investigation more detailed of the Nicini on two relies factual bases for period required. As to the imposition liability Cyrus. points He was, where Nicini date DYFS learned Cyrus’s testimony February at the February and the date of the hearing nothing that there was the agency approved Nici- Family hearing Court problems saw “in terms of with the law.” status, placement February temporary ni’s App.' at 156.11 nothing There is 28, 1991, the record reveals consistent support argument record to monitoring oversight by Cyrus representation made an affirmative February DYFS. On located that he “checked out” Morra. The record and, being Morra home after taken at the reflects that was frank and forth- JFK, anywhere refusing go “was right inquiry as to the extent of his into than to the Morra home. else” back Ex. appropriateness of the Morra home. that day, at 69. On a DYFS caseworker judge He advised the that he had done a with the and made detailed visited Morras PERP check and advised that check what condition notes about the of the home disclosed. There is no that the suggestion family’s willingness help the Morra “to judge was unaware of the extent of investi- Tony.” Cyrus Ex. at 69. visited Nicini entailed, gation the PERP check as it that during following days twice the nineteen appears investigation. this is a routine by during telephone and also made contact Cyrus testified that the Morras were not that An also period. outreach counselor family foster care but that Nicini needed a visited Nicini once a week and filed a at- stable environment before DYFS could supported Cyrus’s testimony that at report larger family prob- tempt to resolve the February hearing ap- the 28 that Nicini the lems. When the court asked whether peared doing to be well there. par- qualify para-foster Morras would as Cyrus did not of the sexual Nicini tell ents, they Cyrus that would responded during Cyrus assaults the visits made with only completed cautioned during phone Cy- him or conversations PERP check. him rus made to while he was at the Morra for Nicini’s home, The other basis claim began although the assaults within Cyrus “placed on against is that he of days two or three Nicini’s arrival there. Nicini, minor, by notice” about the Morra home the alle- albeit a was not of such However, Cy- mother. gations of Nicini’s years tender that he was unable to com- judge rus fact that municate this information. He was fifteen alerted the Nici- objected placement an with the years placement old and had left earlier ni’s mother Signifi- judge to find the Morras on Morras. When the asked Nici- his own. Mrs. views, ni him of cantly, although Nicini testified at for her she informed February reports drugs in- Morras’ took hearing 1991 he did not son Nor, ap- “something just strange form the court of the assaults. and that seems of such held are mendations to the court in the course 11. We have that caseworkers entitled proceedings.” v. Servs. immunity their Ernst Child & Youth to absolute "for actions on (3d for, preparing initiating, County, F.3d behalf Chester state Miller, Cir.1997); 174 F.3d at 376 n. prosecuting dependency proceedings. and see also (immunity investigative immunity enough not extend to Their is broad to include does acts). presentation the formulation and of recom- administrative light “heightened inquiry, about of their will- in a level of interview people” these ingness to take an unknown child into their investigation.” Dissenting Op. and at 818. at Mrs. Nicini voiced App. home. Atkins, But Dr. who never interviewed the any- suspicion concern and but never made involved, persons “particularly” focuses specific allegations, more and did not ad- Cyrus’s failure to obtain Morra’s consent Judge Segal vise of all of her concerns background to a criminal check without opportunity when she had the to do so.12 pointing specific Cyrus facts from which argues should have should have inferred that such a check was elicited alcohol and substance abuse necessary. The fact that Nicini’s “prob- through analysis. But Nicini urine com- beyond lems went well those of the aver- pletely fact ignores judge age juvenile” troubled under care DYFS objections express- heard Mrs. Nicini’s supervision, Dissenting Op. at ly require drug monitoring dеclined to as appro- furnished no clue about the requested by attorney because vel non of the Morra home as a drugs priateness there was “no indication are involved in this matter.” 168. placement. only Given that reason judge Ni- approved placement then question appropriateness had to home, cini at specifically holding the Morra of the suspicions Morra home was the that Nicini “come[ ] would under the care father,13 Nicini’s mother and Nicini’s insis- supervision” of DYFS and that he home, remaining tence on at the Morra long would remain at the Morras as Cyrus’s impression first-hand that Ni- thought “appropriate.” App. there,” “doing cini was well App. at points nothing 167. Nicini else in the impression corroborated Nicini’s TRIS post-hearing period that put should have worker and Nicini himself at the hear- Cyrus or DYFS on notice that continued ing Judge Segal, before a jury could not placement with inappro- the Morras was priate. permissibly conclude that investi- gation was so inadequate as to manifest dissent, vigorous her colleague our deliberate indifference rights. to Nicini’s would second-guess Cyrus’s have us ac- hindsight. tions from That is not our task. persuaded by Nor are we the cases cited Nor is called for in the circumstances of by the dissent in which other courts deter- this case. heavily The dissent relies on jury reasonably mined a could find deliber- report by Dr. Atkins to assert that ate indifference because the facts in those despite compliance policies his with DYFS Cyrus failing should be liable for engage analogous to cases are not to in those this deposition years 12. In her quotes liberally depo- taken in this case 13. The dissent frоm the events, after the Nicini's mother described the testimony sition of Nicini’s father but fails to “objections” to which referred at the suggest mention that Nicini's father did not hearing. spoke Cyrus She testified that she to relayed Cyrus. that he these concerns to In- prior hearing February on 1991 and deed, deposition it is unclear from his wheth- told him of a cassette that contained a mes- anyone er father ever informed sage from Nicini in which Nicini said he was suspected pedophile. Morra to be a When "partying having good time over there specific asked for details of the concerns he drinking” (expert at the Morras. at 250 relayed employee to unnamed DYFS report). Nicini’s mother also testified that give year,” App. "1988 or take a expressed she "other concerns about replied: placement Nicini’s father "About the drinking drug and the use that I felt went on My of children into foster care there, homes. con- juveniles hung over about that my [Danny] cern with son far as what he expressed around over there.... a lot of doing. trying concerns And I to him about the Morra home and to make them Tony’s placement.” Id. my Nicini makes no ef- discipline understand form of versus an- explain fort in his brief to mother's failure his with, may other individual that he socialize allegations to discuss these in more detail at parents.” App. their at 231. hearing. Cyrus asserts that he is enti attempt to to may It be dramatic case.14 immunity tled to under section 59:3-3 of who “al- Cyrus to a caseworker analogize Act, Jersey Tort Claims which eyes,” the New. a child to starve before low[s] 14, but, public employee n. so far as that is not Op. provides “[a] at 822 Dissenting reveals, good if faith in the execu nothing there was “be- liаble he acts record that eyes” suggested any law.” N.J. [Cyrus’s] tion enforcement fore Negligence § risk of serious insuffi Nicini faced substantial Stat. Ann. 59:3-3. contrary, Nicini’s TRIS immunity provided by harm. To the defeat the cient to Hurtado, at the Morra confirmed that while section See Canico v. worker 59:3-3. suicidal, no longer Nicini was no 676 A.2d home N.J. (1996) (“A to ad- depressed, appeared employee, although negli be

longer public faith.”). justing good In gent, may well. still act stead, immunity to overcome under this Nicini, even The evidence adduced section, plaintiff prove “a must more than him, interpreted favorably most when ordinary negligence.” Summary judg Id. only demanding falls short of the stan- if appropriate ment under section 59:3-3 is set forth in dard for deliberate indifference public official establishes that his or her Farmer, Cy- it also fails to establish objectively “acts were reasonable or-that if it even negligent, rus was more than they performed subjective good them with that. The District Court did establishes faith.” Id. holding prove failed to not err Nicini subjecting Cyrus case for substantive argued has not is ineli process liability. period due Because the immunity provided by for the gible hearing the court and Nicini’s between statute, applies public officials which flight from the Morra home was limited engaged in the execution or enforcement one, weeks, barely two spanning over we Rather, Cy of the law. he contends respon- no of a caseworker’s express view amounted to “reckless indif rus’s conduct sibility longer over a stretch of time. Br. at 19. We have Appellant’s ference.” amounted, conduct concluded

IV. Therefore, most, negligence. granting did not err in sum District Court Nicini’s State Law Claims mary judgment in his fаvor on the state We conclude that the Dis likewise qualified immunity. law claims based on granting sum trict Court did not err DYFS, N.J.Super. B.F. v. See mary on Nicini’s state judgment (N.J.Su 385-86, 686 A.2d 1256-57 based, immuni qualified tort law claims (DYFS employees immune for per.1997) noted that ty. “[t]he The District Court rights). parental efforts to terminate state law claims [Nicini’s] exact nature of readily on against Cyrus apparent is not 17, slip op. at complaint,”

the face of his V. agrees properly the court but Nicini reasons, we will af- relying foregoing as the For the characterized his claims firm the of the District Court enter- supported ... which order “same factual bases actions,” Cyrus. in favor of Frank ing judgment Br. at 18. Appellant’s the 1983 — denied, 692, (4th Cir.1999), Okst, cert. example, Weyant v. F.3d F.3d 695 14. For in 101 845, Cir.1996), (2d 1673, -, knew 857 482 120 S.Ct. 146 L.Ed.2d officials U.S. diabetic, shock, plaintiff in and in cited, insulin (2000), a case not the court held sum hospitalization, re- need of immediate appropriate despite a re mary judgment was Similarly, take him fused to there. Chavez expert port by plaintiffs that further action Cir.2000), (7th Cady, there v. 207 F.3d 901 objective necessary, there was no because evidence that the detainee's was sufficient need for medical care was obvious to ‍‌‌​‌​​​‌‌‌​​​​​​‌‌‌‌‌​‌‌‌​‌​​‌‌‌‌​​​‌​​‌‌​‌‌​​​‌‍defen- plaintiff need for had serious evidence care. medical Peed, contrast, By Grayson v. 195 dants. 816 notes,

RENDELL, dissenting: jority “high was a and risk” Judge, Circuit suicidal hospitalization adolescent need of majority engages in an extensive care.1 is outpatient process intensive Due assessment of the un- well-reasoned process contextual and due rules should relevant to the derlying legal principles See, applied mechanically. e.g., not be process substantive due standard to be Lewis, County v. Sacramento 523 U.S. setting. applied this custodial care Un- 833, 1708, 850, 118 140 L.Ed.2d 1043 S.Ct. Nicini, however, fortunately Anthony (1998); 165, California, Rochin v. 342 U.S. majority appear to does not have con- (1952). 205, 72 S.Ct. 96 L.Ed. 183 controversy sidered whether the real-life Although negligence mere is not sufficient Cyrus’s before us—whether Frank con- violation, process to be a substantive due actually fell below this duct standard— “culpability falling within middle un- jury should be heard or decided range, falling something more than it legal principles espouses. der the This was, than majority’s negligence in the but ‘less intentional con is because view, duct, merely negligent, maybe negli such as recklessness or gross even that. I dissent because believe ... is a gence’ matter for closer calls.” Lewis, more than one reasonable inference can be 523 U.S. at 118 S.Ct. 1708 facts, (citation including omitted). drawn from an infer- “[T]he fact that there ence of deliberate indifference that shocks can be glaring negligence instances where conscience, making inappropriate it to may not constitute deliberate indifference dispose summary judg- of Nicini’s case on does not mean that a fact finder is barred Diebold, Inc., ment. See United States v. from equating negligence of a certain di 869 82 8 U.S. S.Ct. L.Ed.2d mension with indifference.” deliberate (1962) curiam). (per 176 Having used Ni- City Dep’t Doe v. New York Social cini’s case as a vehicle explore (2d Cir.1981). Servs., 649 F.2d 143 analyze particularly complicated legal Considering the facts in light most standard, to, given have we short shrift Nicini, non-movant, favorable to as we to appreciate complexities failed required summary are to do on judgment, of, applying legal standard to the facts certainly appears possible suggest of the case itself? I that we have. cry conduct might out “indifference” to a Indeed, jury. reasonable story whether or not a as chronicled the ma- jority defendant’s conduct amounts to neatly leads to its conclusion that deliberate was, most, indifference has merely been described as a “clas negligent. way But there is more than sic issue for the fact finder” one to view or and “a factual did, do, perceive mainstay what or failed to of actions under S 1983.” Arm Nicini, who, (7th duty furtherance of strong Squadrito, v. F.3d Cir.1998).2 although years” not of “tender as the ma- that, majority 1. Even if the is children, jury correct because a reasonable could infer from matter, record, general particularly light taken “foster in the most favorable ones, enjoy greater plaintiff, degree older that the of freedom defendants were de indifferent); Ostrander, liberately likely Woodv. steps and are more to be able to take (9th 1989) (reversing F.2d safety,” 588 n. Cir. assumption ensure their own Nicini, grant hardly summary judgment applicable to a of because defen suicidal and severely depressed dant's conduct could be construed to physical victim of be delib abuse indifferent; erately repeatedly tendency jury presented who manifested a “a with to take might these safety actions that did facts find Ostrander’s conduct to not further his own and indifferent,’ 'reckless,' 'deliberately have been welfare. ”) 'grossly negligent,’ merely 'negligent.' or Bautista, similarly (citing 2. Other Fargo City courts have characterized v. San Juan 857 of 638, (9th ("When question Cir.1988) as one for the fact finder when F.2d 641 reason See, e.g., persons may disagree par the issue is less than clear-cut. able as to whether Okst, 845, (2d Weyant gross v. negligence, 101 F.3d 857 Cir. ticular constitutes conduct 1996) recklessness, (reversing grant summary judgment negligence, question of or the is

817 hardly struggle present a the Atkins focuses first Nicini’s condition It is rise to an infer- way gives in a facts particular problems and needs. Nicini’s greater neg- than mere culpability ence of beyond average went well those of the expert report An unrebutted ligence. such, juvenile. troubled As Nicini re- .record, which receives scant attention the heightened by level of quired attention majority opinion, does much of the in the responsibility charged those1 for his 13-page, single-spaced work for us. This depict care. The DYFS records as Atkins, psychologist of Elliott L. report of repeated physical the victim abuse at Ed.D., P.A., account of detailed provides They explain the hands of his father. how , opines facts and the unequivocally attempts Nicini made several at suicide Cyrus’s egregious far more conduct was self-harm, including slashing and his wrists majority suggests than the is conceivable. stomach, drinking peroxide, and and in- expert opin- that this believe unrebutted 212-214, gesting pills. App. 243-244. can, does, by itself and create ion evidence They long reflect that Nicini had both genuine disputed of fact sufficient issue problems severity term and recent of such Cyrus’s motion for summary to defeat care, or, require outpatient as to intensive judgment. See Thomas v. Neioton Int’l likely, more A hospitalization. DYFS-paid Enters., (9th Cir.1994).3 1266, 42 F.3d 1270 9, psychiatrist’s report January from least, however, very At the the Atkins shortly Cyrus acquiesced before 1991— tour expert report .guided takes us on a placement with the Morras —noted record, including DYFS rec- through the that Nicini: testimony, exposing and own ords or should have known what knеw suicidal, actively major depres- [I]s making Nicini and the Morras and about sion, very and impulsive bored. Out- investigation obvious that some glaringly patient enough. treatment is not necessary a suicidal placing before Cyrus’s own contact en- App. 245.4 sheet where children were teenager a home permitted party.” try stated: to “drink and ing directly rights by jury.”)).. the from its indifference to the one of fact to be decided recently Supreme expert testimony likened 1983 Court section of Reliance on citizens. where, purposes here, actions to tort claims for of Seventh particularly appropriate application, explained Amendment directly upon expert's conclusions rest matter, general juries as a historical decided provided by City review of materials it- liability, "preserved questions of which Vineland, self.”). Compare Fagan City v. 22 of resolving jury's role was often the what (3d Cir.1994) (en banc) (af- 1307 F.3d dispute plaintiff heart of the between firming summaiy judgment grant of in police City Monterey v. Del Monte defendant.” case, only pursuit noting that the evi- Ltd., Monterey, U.S. 718- Dunes by plaintiffs dence introduced to show (1999). S.Ct. 143 L.Ed.2d 882 intentional, arbitrary, and deliberate action expert testimony, witness the defendants Cady, generally v. 207 F.3d 3. See Chavez expert "expressly but their disclaimed witness Cir.2000) (7th (concluding that material any conduct). of the defendants' such characterization” pro- fact existed as to whether treatment vided the defendant was a substantial de- parture accepted professional judgment hearing, Judge During family court Nicini's based on the substance of the ex- defendant's (cid:127)Segal reported telephonic report from a on a Cincinnati, City pert's testimony); v. Russo opined worker that Nicini was no TRIS who (6th Cir.1992) (reversing 953 F.2d particular longer depressed suicidal at that summaiy judgment grant in section 1983 adjustment officers, time and had "made a fine police alleging to train action failure located,” presently where location he’s noting "expert testimony may prove option place- also mentioned that the "the plaintiffs avenue available to to call sole longer facility ment in a term like residen- municipality's question adequacy of a into training procedures. Hope very placement ... is a disregard expert tial like Ranch To tes- would, believe, good option” needed carry and noted timony we in such cases Nicini. continuing psychotherapy perhaps insulating anti- danger effectively with it the up depressants things clear for municipality liability injuries “if do not from result- environment, supervisor supportive conferred with who Worker and needed to be (JFK) provide knowledgeable able to skillful and directed worker to contact Crisis intervention. To determine whether Anthony today. for evaluation of Nicini (Helen Nicini) provide Morras could such an environment parent Worker contacted and intervention in light high- of Nicini’s [sic.] and advised her recommendations n likely risk heightened situation entails a Trigiani parent of Dr. was asked to inquiry, investiga- level of interview and Anthony from aunt’s pick up home and tion. him parent agreed take to JFK Crisis—

to do contacted this. JFK crisis Worker document, however, helps As Atkins to and indicated that Dr. T’s evaluation and Cyrus made little or no effort to discover recommendation would be to faxed whether the Morra any householdfit of the them—this was done. Worker advised requisite Cyrus characteristics. to failed (Helen) parent upon request of abuse address the most basic issues when he unit that she stay would have to with Morras interviewed the after Nicini went child case he needed to be upon admitted. to their home escaping from the hos- Any pital. Cyrus- information about the App. 245. Cyrus Morra interview comes from himself explains Atkins also how escaped Nicini because the routine written documentation through psychiatric the window of the JFK curiously of such an interview is absent unit, deciding by himself that he “didn’t from the DYFS records.7 could not staying feel like in the hospital.” App. recall if he asked they the Morras whether 164, 224-225.5 In addition to the medical arrested, convicted, had ever been or oth- evidence, expressed Nicini’s relatives con enforcement, erwise had contact with law about cerns Nicini’s severe health to nor did he they ask the Morras how long family DYFS and at the hearing, court had lived in Jersey gain New perspec- noting likely that Nicini to volun helpfulness check, tive on the PERP of the tarily desper succumb to the treatment he apparently “just because he didn’t think to ately App. needed. 246-247.6 App. Instead, ask them that.” 251. Cyrus acceded in Nicini staying asking remembered the Morras whether Morras in the face of awareness of anything there was prevent that would mistreatment, “history physical them becoming parents, foster abuse, depression, self-destructive behav- which he negative received a response. suicidality, ior and as well protract- as his Cyrus did not what ask the Morras did for ed absence from ... long- [and] school living. He did not they ask whether standing history rejection, neglect, and owned or rented their rеsidence. abuse.” App. explains 248. Atkins that it could not even certainty recall with that he should Cy- have been—and was—clear to had talked to the Morras about Nicini’s rus that a caregiver for Nicini history. essence, needed to mental health there secure, provide a emotionally-stable, hardly meaningful was a investigation, let App. Judge Segal him.” 166-167. also noted 6. .One of Nicini's aunts also stated at the that “all the doctor has is assessment of hearing that she believed Nicini had attacked Tony and he doesn't have a full basis on daughter: just something her "This isn't which make an evaluation. But sudden, happened that’s all of a it's been sufficient information from his assessment to going year on for at least and half ... and long indicate that it will be a time before this this, App. he doesn't mean he doesn’t.” 161. boy goes App. back home.” 167. absence, Cyrus 7. When asked about this said psychologist 5.A at JFK held a bed for Nicini "writing that he something, remembered away, after police picked up he ran and the App. don't know if its in here or not.” residence, 252. yet Cyrus gave Nicini at the Morra permission go hospi- not to back to the but, rather, stay tal at the Morras’ home. n Andnow he’s people these with the Morras’ inquiry, of heightened a alone Morras, my now, they have harbored it caregivers. Does Nicini’s to be fitness in- he when Cyrus failed to make son on several occasions oldest not matter that child, any off, point even placing and at one fundamental had taken quiries and suicidal physically-abused a alone and let their house have had surrounded need of stable desperate in a teenager maybe him. he got in went and Now merely fall Did this conduct environment? that he wаs runa- people tell these didn’t standard, the ma- acceptable an below I don’t know them way anything. or concludes, Cyrus indifferent jority I heard. only only had personally, what — several weeks when period of over a goes to daughter My oldest knows— when problem a have detected should are Mends with kids that school -with have acted? and should he could son, Morra, which I is them believe Eric any weak- forgive us would have told that he’s into 16 or and I’ve been one knew not, “no in his because inquiry nesses if it’s true or I. don’t know drugs. Morra suspected that the remotely or even heard. I don’t just what I’ve but it’s environment,” Brief dangerous a home was strange know, something just seems undisputed but Appellee for they would—-if people, why about these assertion, for at least facts belie Tony, -why they would they know don’t Putting summary judgment. purposes Tony him in. I’m sure that take even had rea- would have aside whether my son Dan- through oldest them knows ' was 'a the Morra home suspect son to ny. them had he asked environment dangerous Nicini’s In Mrs. light of App. 158-159. both questions, more basic even one or two concerns, counsel commented express con- relayed parents of Nicini’s something be looked “maybe should Morras, and about cerns to light family, this Morra with [sic.] Ac- with the Morras. placing about Nicini maybe I think Nicini had said Mrs. Mrs. what testimony, deposition cording to her or not on family investigation whether closer Cyrus prior had told Nicini Antho- appropriate placement answering machine that’s an hearing court about to Nicini’s message 168. tape ny.” App. cassette “party- saying that he is aunt from Nicini acknowledged hearing, Cyrus At the there good time over having ing objections, Mrs. Nicini’s óf existence App. Morra residence. drinking” dismissive, empha- instead was somewhat Cy- says she also made 250. Mrs. Nicini an interest sizing that the Morras family court of the rus aware advance him having not mind Nicini and would hearing about: at the there, Nicini stable drinking the’ [M]y other concerns about any App. 155-156.8 home. Morra over on use that felt went drug and the by Mrs. event, provided information hung there, juveniles that about family court prior to the Nicini to there, hours kids young all around over lasting make a not hearing apparently did Danny used and how night of the ' artic- could not Cyrus, as he impression I ex- place. from that come home at his Morras concerns about the ulate her about to him a lot of concerns pressed deposition: Tony’s placement. the Morra home something like like it is more [I]t seems some explained Nicini App. 250. Mrs. heard him or about had heard hearing: family court she her concerns at App. 155 See also Indeed, lines 13-14. Cyrus may have appears that it way explaining (Cyrus that Nicini "found of the Morras as friend characterized the Morras, guess was a friend who I entirely although clear to his.”). family, transcription. See possible error due to that, family something about the or Q: like You Danny indicated that might I any specifics. but don’t know have staying been at the Morra house- you hold that your suspicions App. 250. might there be sexual abuse or expressed Mr. Nicini had concerns to home; some of child type abuse at the is DYFS about the Morras as well. Accord- that correct? ing deposition testimony of Nicini’s A: Yes. father, Atkins, as recounted Mr. Nicini Q: Did you notify or anyone tell told DYFS that the Morra home was a DYFS tho suspicions about se that you juveniles.” for runaway App. “haven 250. had? indicate thаt records Mr. Nicini said good the Morra home was not a place- A: I had mentioned it to a social work- ment, although agree he would to weekend er....

placement.9 According Nicini, to Mr. was not first time he had ever relayed Q: Do you recall what concerns or con- Morras, concerns about the an earlier time exactly cern you expressed per- to that being connection with Nicini’s brother son? Danny: A: placement About of children Q: If it was around give take into foster My care. concern my year Danny stayed or visited the son as far as what doing. he was home, Morra was it around that time in App. 230-231.10 you suspected which that Mr. Morra was pedophile?

[sic.] Mr. objections apparently left even impression less than A: I suspected that exploiting he was Nicini’s, Cyrus Mrs. initially disavowed children. deposition having any recollection of Q: you suspect might Did that there be objections by Mr. Nicini to placing his son drugs in the household at that time? with the having Morras. After the afore- A: I felt that these children going were mentioned DYFS record entry read to over there and in some they had way him, Cyrus recalled that he likely was drugs access to and alcohol. aware of objection Mr. Nicini’s did pursue

bother to it further: A: Around that Danny time was al- Q. you Were ever aware of that partic- ready DYFS; involved wit h cor- objection? ular rect? Yeah, was, A. I think I now I read Q: Yes. this over. A: Was his case worker Frank Q. Okay. you Did ever contact Mr. Ni- at that time? cini to discus s with him the basis of his objections? A: I believe so. A. No.

Q: you Did notify anyone at DYFS re- garding your you concerns that Q. have Was any there reason for that? shared with me regarding the Morra No, think, A. No. I you know, like household that might therе have been saying, w e feeling, you know, were some child sex there? good the placement about ev- because A: During period? what erything positive, everything was entry 9. The DYFS record also reflected 10. Mr. Nicini made clear deposition in this Mr. pleased, Nicini was Anthony "not not in that he and his wife had never authorized hospital. going He’s to call JFK Crisis to find Danny stay Nicini's brother with Mor- psychiatrist out who is that released child.” App. ras. App. 227. custody para-foster if they apply for would doing well there toward him pointing willing to let them.” progress- parents are becoming stabilized again real concerns in his de- Cyrus explained we had no ing, and so 156-157. that. updates that time about that he had received position App. 226-227. the Morras themselves. App. 228. specific concerns up follow on Failing to infor- “background that the Concluding about him and to DYFS to communicated Cyrus Frank which available to mation for placement acceptable as an the Morras substantial,” ignored was completely was beforehand, who, was only weeks Nicini conclusion Atkins as follows the opines and in of need actively to suicidal said be Cyrus’s report.on handling his detailed of Nici- that Cyrus advocated hospitalization, Nicini’s case: of Morras, he whom about stay with the ni in- disregard pertinent of ongoing Judge Segal telling nothing, little or knew inves- .stages various of the formation house, at the Morra was stable that Nicini simple negli- not a tigation demonstrates there, very well “doing he was that no of gent pattern breach but deliberate a And, on largely 155.11 problems.” App. right Anthony of Ni- indifference to the Cyrus’s position represen- the basis of cini a safe environment to be secure re- tations, Nicini to Judge ordered Segal opportunity to offered the same be long as “for so with the Morras main services from protection/supportive for place- appropriate thinks that’s an [DYFS] any as other child. Judge Segal had asked App. 167. ment.” ‘ qualify would if the Morras’ home Cyrus App. 253.12 home, Cyrus to which para-foster aas report illustrates Although expert this they App. 156. “[y]es would.” responded produce could an inference how the facts by his answer Cyrus qualified Although indifference, the majority of deliberate only thing he had done saying that the of relevance Atkins’ swiftly dismisses the check, Segal Cyrus Judge assured PERP a on apparently based entirety, in its report “[tjhere’s we’ve seen nothing that no— explain fact did not how that Atkins .... any problem with law of terms a performed have national Cyrus could foster they are not an official right now permission of the search without the they police would— I’m sure family, although just had climbed out youngster who might Cyrus what suicidal jury on basis A wonder 11. ward, Segal everything psychiatric rather report Judge that to the window of could Cyrus's explanation seems to positive. to be content professed whether he than assumption, embraced premised on an be light weak and ineffectu- Cyrus's of there?- extent, that no further majority to some responses perhaps ‍‌‌​‌​​​‌‌‌​​​​​​‌‌‌‌‌​‌‌‌​‌​​‌‌‌‌​​​‌​​‌‌​‌‌​​​‌‍al—and even indifferent — discharge duties necessary his action was sign- respect to the numerous provided with parties professed long as as certain to Nicini danger Morra potential with the posts of staying claimed he liked to be content. Nicini imagine difficult to placement, it would not be and, Morras, Cyrus in his noted at the concluding rose to jury inaction go elsewhere.” deposition, "Nicini refused if, during a indifference the level of deliberate trial, willing were to have App. 145. The Morras responses similar provide were to reported there remain there and him attitude. similar and to demonstrate a course, Of when problems.” were "no report Cyrus, Mr. Morra gave that Morras "multiple Cyrus's opined that Atkins also 12. giving drugs and already had been pattern indifference breaches constituted him, abusing telling Nicini would sexually duty professional such statutory and/or go disclosed these place to if he have no degree of a reasonable that I conclude with jury Could not 238. activities. pattern probability psychological rath- to be an indictment Cyrus's attitude find negligence but mere conduct arose satisfactory explanation Cyrus's er than a obligation to his from deliberate indifference all, Cyrus's theory, a case After inaction? investigation directly proper to conduct problem until would never unearth worker by Anthony Nici- injuries caused claimed have not the concern is too late. Should App. 242 ni.” stability for this environment been the of the Interestingly, Cyrus placement).14 Supreme would Morras.13 As Court not- Lewis, requisite permission, have obtained the oppor- “[w]hen ed such extended per- been confronted with the refusal of pro- tunities to do better are teamed with mission, proper conducted a care, tracted failure even to indifference is interview at the outset basic and asked Lewis, truly shocking.” 523 U.S. at questions reasonably should have By rejecting S.Ct. the valid explored entrusting been before Nicini to competing clearly inference raised Morras, posed those to a para- such as concluding juncture facts and at this Yet, applicant. foster neither asked Cyrus’s merely negli- conduct was at most pertinent questions, sought per- nor law, gent as a matter believe the search, mission to do the until it was too majority process has short-circuited the late. addressing Anthony Nicini’s substantive concludes, process rights. due majority properly my

The view, special DYFS had a

relationship with Nicini and thus were

charged with affirmative duties. Nicini

inwas the care and custody of the state.

However, in light recognition of its of this

duty, light and in what the facts and

expert testimony suggest Cy- witness

rus knew or should have known about Morras, facilely and the can so one

conclude as well that jury no reasonable

could infer plain- “deliberate unconcern for

tiffs from a pattern welfare of omissions

revealing specific deliberate inattention to imposed duties for the purpose of safe- BANCORP, INC., PNC Successor to Doe, guarding plaintiffs from abuse”? See Pennsylvania First National 144; Ledbetter, Taylor

649 F.2d at v. Corporation (11th Cir.1987) (en banc) F.2d (adopting Doe articulation of deliberate in- v. finding difference and that a foster child may bring a section 1983 action alleging COMMISSIONER INTERNAL OF (Tax government deliberately officials were REVENUE Court No. 95-16002) regarding indifferent her foster home majority 13. regardless further characterizes re- specifical- of whether the state has ” port "focus[ingj ‘particularly’ this is- ly regulated regarding all of those needs. pointing specific sue "without facts from Surely we do not allow states to defeat sub- which should have inferred that such a process allegations stantive by setting due necessary.” only check was I can wonder minimal standards for child welfare case majority reading whether the the same de- workers. Would it not violate substantive due tailed, comprehensive report that I have de- worker, process state welfare case scribed. requisite culpability, level of to allow a eyes, child to starve before his notwithstand- Although specifically Nicini does not chal ing specific regulation absence of a state lenge Cyrus complied whether with сertain requiring feeding of children in the custo- requirements ie.g., DYFS check), conducting a PERP dy light of the state? In of other evidence distinguishable and thus Doe is in that giving strong rise to a inference of deliberate respect, process the substantive due violation indifference, the fact that took certain alleged would be based on the state’s failure steps required by regulations minimal provide for basic human needs of those in County not, itself, custody, DeShaney will defeat that Winnebago its see inference or v. Servs., ept. remove Social 489 U.S. conduct from the realm of 199- D 200, (1989), 109 S.Ct. 103 L.Ed.2d 249 consideration. notes January hand Ex. at 70. [February an infected 11].” with Hospital JFK the infec to treat require admission might 9,1991 February February Between stated reportedly Nicini Bonnie tion. at the Nicini twice Cyrus visited Nicini for de hospitalize plan was con telephone also had home. Morra He states that report also pression. The App. at and the Morras. Ni- tacts Nicini sought consent the hospital when streatment, re apparently she Cyrus’s hi first visit for 226.3 cini’s mother DYFS custo he was in at 250 App. fused and claimed Monday, February thereafter, Nicini was . point At dy. some overall It was report) (expert unit psychiatric JFK’s transferred to “everything positive,” impression 1991, DYFS February 5, On evaluation. d everything 226-27, an away from the had run that Nicini learned there doing well “pointfed] towards[Nieini] recommended after JFK unit psychiatric progressing stabilized and becoming treat admitting Nicini to possibility of Additionally, a counsel- ...,” App. at 228. depression. Nicini center visited from an outreach Edward and ran to the home During Morra home. a week at the once Hill, 'Jer- Cherry New Dolores Morra Cyrus performed period, same-time Danny had brother Nicini’s older sey.

Case Details

Case Name: Nicini v. Morra

Court Name: Court of Appeals for the Third Circuit

Date Published: May 19, 2000

Citation: 212 F.3d 798

Docket Number: 98-5193

Court Abbreviation: 3rd Cir.