18 20-2325 Appellant Brief

Case: 20-2325 Document: 18 Page: 1 Date Filed: 01/08/2021
United States Court of Appeals

for the
Third Circuit
Case No. 20-2325
MICHAEL LASCHE; JENNIFER LASCHE,
Appellants,
– v. –
STATE OF NEW JERSEY; DIVISION OF CHILD PROTECTION AND

PERMANENCY; KYLE HIGGINS; KATIE EPPERLY, PERSONALLY AND
IN HER OFFICIAL CAPACITY; MARY LIPPENCOT, PERSONALLY AND
IN HER OFFICIAL CAPACITY; JANELLE CLARK;
JOHN OR JANE DOES 1-10.
_____________________________
ON APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY IN NO. 3-18-CV-17552,
HONORABLE FREDA L. WOLFSON, CHIEF DISTRICT JUDGE
BRIEF ON BEHALF OF PLAINTIFFS-APPELLANTS AND

APPENDIX VOLUME 1 OF 2 (PAGES A1 TO A67)
MICHAEL P. LAFFEY,
ATTORNEY AT LAW
Attorney for Plaintiffs-Appellants
222 Highway 35
Red Bank, New Jersey 07701
(732) 642-6784
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................... iii

SUBJECT MATTER AND APPELLATE JURISDICTION .................................... 1
ISSUES PRESENTED FOR APPEAL...................................................................... 1
RELATED CASES AND PROCEEDINGS.............................................................. 2
STATEMENT OF THE CASE .................................................................................. 2
Factual Statement............................................................................................. 2
Procedural Statement ..................................................................................... 12
RULINGS PRESENTED FOR REVIEW ............................................................... 13
SUMMARY OF ARGUMENT ............................................................................... 13
STANDARD OF REVIEW ..................................................................................... 14
LEGAL ARGUMENT ............................................................................................ 15
POINT I
APPELLANTS COMPLAINT STATED A VALID CAUSE OF
ACTION PURSUANT TO THE NEW JERSEY LAW AGAINST
DISCRIMINATION ...................................................................................... 15
POINT II
APPELLANTS HAVE PLEAD SUFFICIENT FACTS TO MAKE
A PLAUSIBLE CLAIM THAT THEIR FIRST AMENDMENT
RIGHTS HAVE BEEN VIOLATED ............................................................ 19
POINT III
THE JUDICIAL ORDER REMOVING THE CHILD FROM
APPELLANTS HOME DOES NOT PRECLUDE A FINDING OF
CAUSATION ................................................................................................ 28
POINT IV
APPELLANTS HAVE A FIRST AMENDMENT RIGHT TO
SHARE THEIR RELIGIOUS BELIEFS WITH A FOSTER CHILD.......... 30
i
POINT V
APPELLANTS HAVE PLEAD A VALID EQUAL PROTECTION
CLAIM........................................................................................................... 33
POINT VI
APPELLANTS HAVE PLEAD THE REQUIRED ELEMENTS OF
A CONSPIRACY CLAIM UNDER 1985 .................................................... 37
CONCLUSION ........................................................................................................ 39
ii
TABLE OF AUTHORITIES
Page(s)
Cases:
Argueta v. United States Immigration & Customs Enf’t,
643 F.3d 60 (3d Cir. 2011) ..................................................................................26
Babb v. Wilkie,
140 S. Ct. 1168, 206 L. Ed. 2d 432 (2020) ..........................................................29
Bell Atl. Corp. v. Twombly,
550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ...................................21
Borunda v. Richmond,
885 F.2d 1384 (9th Cir. 1988) ..............................................................................28
Brown v. Philip Morris, Inc.,
250 F.3d 789 (3d Cir. 2001) .................................................................................37
BSA v. Dale,
530 U.S. 640 (2000) .............................................................................................15
Dale v. Boy Scouts of Am.,
160 N.J. 562 (1999), rev’d and remanded on other gr., 530 U.S. 640,
120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000) ................................................... 16, 18
DeFranco v. Wolfe,
387 F. App’x 147 (3d Cir. 2010) ................................................................... 23, 25
Div. of Youth and Fam. Serv. v. J.B.,
120 N.J. 112, 576 A.2d 261 (1990) ......................................................................28
Doe v. Div. of Youth & Family Servs.,
148 F. Supp. 2d 462 (D.N.J. 2001)................................................................ 15, 18
Doe v. Univ. of the Scis.,
961 F.3d 203 (3d Cir. 2020) .................................................................................25
EEOC v. PVNF, L.L.C.,
487 F.3d 790 (10th Cir. 2007) ..............................................................................36
Ellison v. Creative Learning Ctr.,
383 N.J. Super. 581, 893 A.2d 12 (App. Div. 2006) ............................................16
Everson v. Board of Ed. of Ewing,
330 U. S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (1947) .................................................20
iii
Fowler v. UPMC Shadyside,

578 F.3d 203 (3d Cir. 2009) .................................................................................18
Grier v. Klem,
591 F.3d 672 (3d Cir. 2010) .................................................................................14
Griffin v. Breckenridge,
403 U.S. 88 (1971) ...............................................................................................38
In re “E”,
59 N.J. 36, 279 A.2d 785 (1971) ..........................................................................20
Jacobs Constructors, Inc. v. NPS Energy Servs.,
264 F.3d 365 (3d Cir. 2001) .................................................................................14
Krouse v. American Sterilizer Co.,
126 F.3d 494 (3d Cir. 1997) .......................................................................... 23, 25
Lauren W. v. DeFlaminis,
480 F.3d 259 (3d Cir. 2007) .................................................................................23
McDonald v. Master Fin., Inc. (In re McDonald),
205 F.3d 606, (3d Cir. 2000) ................................................................................14
McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) ................................ 35, 36
Nat’l Inst. of Family & Life Advocates v. Becerra,
138 S. Ct. 2361, 201 L. Ed. 2d 835 (2018) ..........................................................30
Neitzke v. Williams,
490 U.S. 319, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989) ...................................22
Obergefell v. Hodges,
135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015) ..........................................................20
Papasan v. Allain,
478 U.S. 265, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986) .....................................21
Police Dep’t of Chicago v. Mosley,
408 U. S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972) ........................................31
Ptaszynski, v. Uwaneme,
371 N.J. Super. 333, 853 A.2d 288 (App. Div. 2004) ................................... 17, 18
Reed v. Town of Gilbert,
576 U.S. 155, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015) ...................................31
iv
Sanjuan v. American Bd. of Psychiatry and Neurology, Inc.,

40 F.3d 247 (CA7 1994) .......................................................................................21
Scheuer v. Rhodes,
416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974) .........................................22
Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002) .........................................22
Thomas v. Cty. of Camden,
386 N.J. Super. 582, 902 A.2d 327 (App. Div. 2006) ................................... 16, 17
Thomas v. Indep. Twp.,
463 F.3d 285 (3d Cir. 2006) .................................................................................22
Thomas v. Review Bd. of Indiana Employment Security Div.,
450 U. S. 707, 101 S. Ct. 1425, 67 L. Ed. 2d 624 (1981) ....................................20
Thompson v. Real Estate Mortg. Network,
748 F.3d 142 (3d Cir. 2014) .................................................................................27
Townes v. City of New York,
176 F.3d 138 (2d Cir. 1999) .................................................................................28
Ward v. Connor,
657 F.2d 45 (4th Cir. 1981) ..................................................................................38
Willowbrook v. Olech,
528 U.S. 562 (2000) .............................................................................................33
Woodson v. Scott Paper Co.,
109 F.3d 913 (3d Cir. 1997) .................................................................................23
Word of Faith World Outreach Ctr. Church v. Sawyer,
90 F.3d 118 (5th Cir. 1996) ..................................................................................38
Young v. New Sewickley Twp.,
160 Fed. Appx. 263 (3d Cir. 2005) ............................................................... 33, 34
Zahorian v. Russel Fitt Real Estate Agency,
62 N.J. 399, 301 A.2d 754 (1973) ........................................................................15
v
Statutes & Other Authorities:

28 U.S.C. § 1291 ........................................................................................................1
28 U.S.C. § 1331 ........................................................................................................1
28 U.S.C. § 1367 ........................................................................................................1
42 U.S.C. § 1983 ......................................................................................................13
42 U.S.C. § 1985 ........................................................................................... 2, 13, 37
42 U.S.C. § 1985(3) .................................................................................................37
N.J.S.A. § 2A:44-126 ...............................................................................................17
N.J.S.A. § 10:5-1 ......................................................................................................13
N.J.S.A. § 10:5-12(f)..................................................................................... 1, 13, 15
N.J.S.A. § 10:5-5 ......................................................................................................15
N.J.S.A. § 10:5-5 (1) ................................................................................................15
N.J.S.A. § 30:4C-12.2 ..............................................................................................26
N.J.S.A. § 61.2b .......................................................................................................26
Fed. R. Civ. P. 12(b)(6).................................................................................... passim
5 C. Wright & A. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)..22
vi
SUBJECT MATTER AND APPELLATE JURISDICTION
The District court had subject matter jurisdiction over the Federal Claims
pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state-law
claim under 28 U.S.C. § 1367. This Court has Appellate Jurisdiction pursuant to 28
U.S.C § 1291. The Appeal is from a Final Order entered by the District Court on
June 4, 2020 (A65) and the Notice of Appeal was timely filed on June 23, 2020
(A67).
ISSUES PRESENTED FOR APPEAL
1. Is the State of New Jersey Division of Child Placement and
Permanency a “place of public accommodation” subject to the New Jersey Law
Against Discrimination, N.J. Stat. Ann. § 10:5-12 (f)? (A32-37)
2. Have Appellants plead sufficient facts to make a plausible claim that
their first amendment rights have been violated? (A51-A 63)
3. Does the State Court Judicial order removing the child from
Appellants home preclude a finding of causation that defeats Appellants’ claim?
(A60-61)
4. Is taking retaliatory action against a Foster Parent for telling a foster
child in their care a violation of the Foster Parents First Amendment rights and
have the Appellants sufficiently plead that claim? (A53-54)

1
5. Have the Defendants plead sufficient facts to sustain their claim that
their Equal protection Rights have been violated? (A48-A51)
6. Have Appellants properly pled a cause of action pursuant to 42 USCS
§ 1985?(A63-64)
RELATED CASES AND PROCEEDINGS
There are no related cases or proceedings pending with regard to the matter
under appeal.
STATEMENT OF THE CASE

Factual Statement
The Appellants, Michael and Jennifer Lasche were foster parents licensed by
the State of New Jersey. They are devout Christians who hold to traditional values
and beliefs about family, marriage and sex. Appellants had fostered children prior
to the events set forth herein. Jennifer Lasche is also a former foster child who was
adopted by her foster parents. (A107)
On or about September 1, 2017, the defendants Kyle Higgins and Katie
Epperly called the Appellants about two girls being removed from a foster home
and asked if Appellants would take them in. Defendant Kyle Higgins is a State of
New Jersey Division of Child Placement and Permanency (hereinafter “DCPP”)
caseworker. Katie Epperly is her supervisor. The girls were ages 13 (hereinafter
2
referred to as “Foster child 1”) and 10 (hereinafter referred to as “Foster child 2”)
(hereinafter collectively referred to as the “Foster children”). Appellants agreed to
the placement. Foster Child 1 was the oldest of five siblings placed in Foster Care.
(A108)
In November of 2017, Appellants were advised that the natural mother had
surrendered her parental rights and that the children were now free for adoption. In
December of 2017, Kyle Higgins met with the Appellants and informed them that
they were in consideration for adoption. (A109)
The Appellants and the Foster Children both asked Defendants Kyle Higgins
and Katie Epperly questions about the family. These defendants claimed to not
know the answers. It later came to the attention of Appellants, that the foster
parents of the two younger brothers and younger sister of the Foster child 1 and
Foster child 2 had been given details about the Illinois family. One of the foster
parents advised Appellants that the potential adoptive family “were two wealthy
gay men with lots of family around to support them and the adoption.” Appellants
were baffled as to why the caseworker refused to share this information with them.
(A109)
A few days thereafter Defendant Kyle Higgins came to Appellants home and
expressed she heard that the two Foster children were anxious to have their
3
questions answered about the adoptive home. During Defendant Kyle Higgin’s
discussion with the Foster Child 1 she questioned the child about her religious
beliefs concerning homosexuality and asked her if she would change her religious
beliefs if she went with another family, (A109).
In April of 2018, Foster Child 2 was removed from Appellants home for
confidential reasons unique to Foster child 2. This was by agreement between the
Appellants and DCPP, (A110).
On May 22, 2018 Appellant Jennifer Lasche met with Kyle Higgins and the
therapist for the Foster Child 1. At that meeting Appellant, Defendant Higgins and
the therapist agreed not to discuss adoption with the foster child because it was too
soon after Foster Child 2’s removal and put too much pressure on Foster Child 1.
The therapist said that she wanted Foster Child 1 to just be able to relax and be part
of the family as they all got readjusted to the new living situation. Appellant agreed
this was best for Foster Child 1. There was some discussion among the meeting
participants of Foster Child 1 possibly exploring time with her siblings to see if she
wanted to be adopted with them. Appellant was not opposed to letting Foster Child
1 explore that and allowing her to make the decision without any question or
resentment. (A110)
4
At that meeting, Defendant Higgins discussed that there was going to
be a Court date on June 4, 2018, where the options for all five Foster children
would be presented to the Judge for a decision as to what would be best for the
children. Those options would be for the Foster Children to be adopted by the
families where they were currently placed or for all five Foster children to be
adopted by the Illinois family. Defendant Higgins further represented that the
Division was not going to take a position but instead would let the law guardians
advocate for the Children. (A110)
On June 4, 2018, the Appellants received a text from Foster child 1’s law
guardian that the Illinois couple was off the table and that the judge wanted
psychiatric evaluations of all of the children before a permanent plan was put into
place. It was at this point that the attitude of the case worker towards the
Appellants radically changed. (A110)
On June 19, 2018 Appellant Jennifer Lasche received a phone call from
Defendant Kyle Higgins who begins to discuss transitioning Foster child 1 to her
foster brother's home. Appellant expressed confusion because she thought the plan
was to move forward with adoption of all the children in their current foster
placements. The Appellant then called the law guardian for Foster child 1 who
expressed surprise and confusion at what was said during the conversation and said
she would investigate, (A111). Additionally Appellants had information that a

5
therapist had advised the DCPP that because Foster Child 1 was the oldest of the 5
siblings and because of the trauma the children suffered in the biological home she
had been “Parentified” by the younger children and that therefore it was in her best
interest to be adopted alone, (A114)
Shortly thereafter the therapist arrived at the house for Foster Child 1’s
therapy session. Appellant Jennifer Lasche confronted the therapist and asked why
Foster child 1 was being asked if she was being pressured to follow their religion.
She tried to cover by saying it was normal to discuss how people have different
beliefs, ethics, religion etc., however, after being pressed the Therapist admitted
getting a phone call from Defendant Higgins before the session. The Therapist said
that the Division brought to her attention that there had been a conversation that
was had with Appellants about the Foster Children being placed out of state with a
homosexual couple, The Therapist also stated that there was “a conversation with
Defendant Kyle Higgins about the Illinois couple” and “discussion about
“Appellants’ ideas about same-sex couples.” She also said that in that
conversation Defendant Kyle Higgins told the therapist that the therapist was to
discuss with Foster child 1 being placed with her brothers, (A111)
It is clear from this conversation that the Defendant Kyle Higgins wanted to
place the Children with the Illinois Couple and that she felt the Appellants’
religious beliefs had been passed on to the Foster Children and interfered with that
6
placement. At this point the Defendant Kyle Higgins conduct and the Conduct of
the other Defendants became even more hostile.(A111)
On or about June 21, 2018, Foster Child 1 was picked by Defendant Kyle
Higgins and another woman ostensibly for her sibling visit. It was very rare for
Defendant Kyle Higgins to transport Foster Child 1 to this visit. On information
and belief, they stopped at Dunkin Donuts where they interrogated Foster child 1
and lied to her in an effort to intimidate her into agreeing that she did not want to
be adopted by Appellants. For instance, Defendant Kyle Higgins asked the Foster
child “So I hear that Mrs. Lasche tells you every time I call her” This statement
was untrue and Defendant had no way of knowing if this was the case or not.
(A112)
While at the Dunkin Donuts, Defendant Kyle Higgins told Foster Child 1
that Appellants would not be able to “meet her needs.” They once again
interrogated Foster Child 1 about her religious beliefs. At the conclusion of this
interrogation instead of taking Foster Child 1 to the office for her sibling visit, as
was usually the case, she was taken to the home where her foster brothers were
living. (A112)
The actions of the Defendant Kyle Higgins at the Dunkin Doughnuts was an
attempt to convince the Foster Child that she did not want to be adopted by the
7
Appellants and the questioning of the Child about her religious beliefs in general
and regarding homosexuality in particular are evidence that the reason she wanted
to separate the Foster child from Appellant was because of Appellants’ religious
beliefs, (A112).
On return Defendant Kyle Higgins stated to Appellants that she knew Foster
Child 1 wanted to stay with them and that “we’ (the DCPP) understand that and
“want to work with you because we want what's in her (foster Child 1’s) best
interests. Defendant Kyle Higgins then stated, “we (DCP&P) would like to have a
meeting with you”. (A112)
The next day, Appellants spoke to Defendants Kyle Higgins and Katie
Epperly on the telephone to schedule the meeting. When questioned about the
purpose of the meeting, Defendant Katie Epperly indicated that the DCPP was
concerned that both Foster child 1 and Foster Child 2 indicated that same-sex
relationships were against their religion. Defendant Katie Epperly stated that
“they” felt the children had gotten that belief from the Appellants, (A113). That the
Defendant indicated that they were concerned that the Foster Children had adopted
a religious belief of the Appellants indicates a hostility to that religious belief. It
should be noted that there are no regulations which prohibit Foster Pants sharing
religious beliefs. Appellants have been active Foster parents for over 10 years and
have known numerous Foster Parents and have never heard of parents or children
8
being questioned about their religious beliefs or having a child removed on the
basis of a parent’s religious beliefs, (A113).
While Appellants took the Foster Children to Church and freely shared their
religious beliefs with the children, on information and belief the Foster Children
had picked up their religious beliefs regarding homosexuality prior to coming to
Appellants home, (A113)
On Friday, June 29, 2018, a meeting was held at the Monmouth County
office of the DCP&P. Present at that meeting were the Appellants, their attorney,
Defendants Kyle Higgins, Katie Epperly, Mary Lippencot and Janelle Clark, an
attorney for the State of New Jersey, and one or two additional employees of the
DCPP, (A113).
At the June 29th meeting, the representatives of the DCPP expressed
concern that the Appellants believed homosexuality was a sin. They expressed
concern that the Appellants would reject Foster child 1 if she ever decided to
explore her sexuality and sought assurance from the Appellants that would not be
the case. One of the individual defendants indicated that Foster child 1 would need
therapy to deal with her belief that homosexuality was a sin to avoid possible
future harm suggesting that a belief that homosexuality was a sin was some type of
mental disorder that required treatment. Almost the entire meeting was about
9
Appellants’ belief that homosexuality was a sin. It was clear to the Appellants
from this meeting that the Defendants were hostile to the Appellants’ religious
beliefs regarding homosexuality, (A113, 114).
On Monday, July 2, 2018, the DCPP went before the Family Court and
sought the removal of Foster Child 1 from Appellants’ custody. The law guardian
appointed to represent the interests of Foster Child 1 told Appellants that this was
done over her objections. (A114)
Appellants were not given notice that they had a right to be heard at the
hearing. On information and belief case workers for the DCPP do not usually
ignore statutory mandates. This failure to give notice in accordance with the law is
evidence that the Defendants were trying to hide something from Appellants and
were acting in bad faith. Defendant’s bad faith was due to their hostility to the
Appellants’ Religious beliefs as expressed in the meeting the day before, (A114).
On October 12, 2018, a representative of the DCPP arrived at the
Appellants’ house to perform the required yearly inspection that is necessary for a
Foster Parents license to be renewed. When the inspection was completed, the
inspector asked the Appellants if they knew that their license was suspended by the
Monmouth County DCPP office. Appellants informed the inspector that they were
not aware that they had been suspended. The inspector then informed them that the
10
Monmouth County office should have notified Appellants that they were
suspended and told them what the reasons for the suspension were, (A115)
Based on the suspension taking place shortly after the meeting wherein the
Defendants expressed hostility to Appellants’ religious beliefs and the lack of any
other disqualifying factors for suspending Appellants as Foster Parents it is clear
that the only reason for the Appellants’ suspension from the system was the
defendants hostility to Appellants’ religious belief that homosexuality is a sin.
Further Defendants ignored the Rules and Regulations and did not give Appellants
notice as to why they were suspended because they did not have a legitimate non-
discriminatory basis for the suspension, (A115)
Appellants’ qualifications to be foster parents had never been questioned and
they had been relicensed as foster parents on a regular basis over a 10 year period
with no complaints against them. It was not until the Defendants found out about
Appellants’ religious beliefs regarding homosexuality that they were suddenly
found unfit to adopt a child or to be Foster Parents (A115).
As of the date the filing of the Complaint Appellants had not been been
given a reason by DCPP for their suspension, (A115) and as of this date they have
still not been given a reason.
11
Procedural Statement
Appellants filed a complaint against the State of New Jersey the, Division of
Child Placement and Protection (DCPP) and various employees of the DCPP on
November 19, 2018, (A97). On December 24 2018 the State of New Jersey filed a
notice of removal on behalf of all Defendants9 A-76). On February 4 2019 the
Defendants filed a motion to dismiss the complaint pursuant to F.R.C.P. 12(b) (6)
for failure to state a claim, (A92)
On September 27 2019 the Honorable Judge Freda L. Wolfson J.D.C.
granted the defendants motion and dismissed the Complaint without prejudice,
(A41).
On October 24, 2019 Appellants filed an Amended Complaint, (A107). On
November 21, 2019 the Defendants filed another motion to dismiss for failure to
State a claim (A120) and on June 6, 2020 that motion was granted by the District
Court, (A65).
On June 23, 2020 Appellants filed a Notice of Appeal, (A-67).
12
RULINGS PRESENTED FOR REVIEW
The portion of the District Courts Order and opinion dated September 26,
2019 dismissing Appellants claim pursuant to N.J. Stat. Ann. § 10:5-12 (f) and The
District Courts Order and Opinion dated September 26, 2019 are presented to the
Court for review.
SUMMARY OF ARGUMENT
Appellants have filed a complaint against various employees of the State
Division of Child Placement and Permanency. The complaint alleges pervasive
discrimination against the Defendants by these various employees. The Appellants
further allege that the discrimination was because of their deeply held religious
beliefs. This discrimination culminated in a foster child being taken from the
Appellants, their being denied the opportunity to adopt the child and the Appellants
being suspended from the foster care system. The discrimination manifested itself
in the actions of the Defendants while they were performing administrative,
investigative and other functions. These facts present valid claims pursuant to
N.J.S.A. § 10:5-1 et. seq., pursuant to 42 USCS § 1983 and 42 USCS § 1985.
While there may not be a right to be a foster parent, or to adopt a child, there is a
constitutional right to participate in the system free from discrimination because of
one’s religious beliefs and speech. Appellants do not seek to force the State to
13
allow them to adopt a specific child but seek the right to participate in the Foster
Care system moving forward without being discriminated against for their beliefs.
STANDARD OF REVIEW
This Court has plenary review over a District Court's interpretation of state
law, Jacobs Constructors, Inc. v. NPS Energy Servs., 264 F.3d 365, 369, (3d Cir.,
2001).
The Court has plenary review over a District Court's grant of a motion to
dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a
claim. Grier v. Klem, 591 F.3d 672, 676 (3d Cir. 2010).
Where the appeals court is presented with a purely legal issue, the appeals
court exercises plenary review over the district court's determination. McDonald v.
Master Fin., Inc. (In re McDonald), 205 F.3d 606, 607, (3d Cir., 2000).
14
LEGAL ARGUMENT
POINT I
APPELLANTS COMPLAINT STATED A VALID CAUSE OF ACTION
PURSUANT TO THE NEW JERSEY LAW AGAINST DISCRIMINATION.
In the first Motion to dismiss the Court below dismissed Appellants claim
asserted against the Defendants under the New Jersey Law against Discrimination
(NJLAD) N.J. Stat. Ann. § 10:5-12 (f).
The basis for the dismissal was the finding by the Court that the DCPP was
not a place of public accommodation, (A33-37). While N.J. Stat. Ann. § 10:5-5 has
an extensive list of things that are public accommodations and does not explicitly
list government entities or agencies this section of the act starts by saying that “a
“place of accommodation” shall include but not be limited too” (emphasis added)
the listed service providers and places. The fact that N.J.S.A. 10:5-5 (1). Provides a
non-exhaustive list of public accommodations has been recognized by the New
Jersey Courts, BSA v. Dale 530 U.S. 640, 656-57 (2000), Zahorian v. Russel Fitt
Real Estate Agency 62 N.J. 399, 412, 301 A2d 754 (1973).
In finding that the DCCP is not a place of public accommodation the Court
relied on Doe v. Div. of Youth & Family Servs., 148 F. Supp. 2d 462 (D.N.J. 2001).
When Doe was decided in 2001 the Court did not have the benefit of subsequent
15
state court decisions interpreting the applicability of the Law Against
Discrimination to government entities.
The goal of the NJLAD is to eradicate the 'cancer of discrimination,' the
statute must be broadly interpreted to further its purposes." Ellison v. Creative
Learning Ctr., 383 N.J. Super. 581, 588, 893 A.2d 12, 16, (App.Div.2006)
(quoting Dale v. Boy Scouts of Am. (Dale II), 160 N.J. 562, 584-85, (1999), rev'd
and remanded on other gr., 530 U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d 554
(2000)).
In Thomas v. Cty. of Camden, 386 N.J. Super. 582, 902 A.2d 327 (App. Div.
2006) the Plaintiff, a county dispatcher, appealed from a summary judgment order
from the Superior Court of New Jersey, Law Division, which dismissed her sexual
harassment action against defendants, a county, an employee of the county, and the
county communications center, brought under the New Jersey Law Against
Discrimination. In this context the Court addressed whether the County and the
County dispatch service were places of public accommodation.
The Court stated that;
Generally, in the context of private entities, from commercial to

membership organizations providing services to the public, we have
developed standards to help determine whether the entity qualifies as
a public accommodation. In this regard, our "focus appropriately rests
on whether the entity 'engages in broad public solicitation, whether it
maintains close relationships with the government or other public
16
accommodations, or whether it is similar to enumerated or other

previously recognized public accommodations
Thomas v. County of Camden, 386 N.J. Super. 582, 590-591, 902 A.2d 327,
332, (App. Div. 2006). The Court then went on to state that “Here, of course, we
are not required to analyze the extent of public solicitation or the closeness of the
relationship with government simply because the Camden defendants are public
entities and, by their very nature, constitute a place of public accommodation. See
Ptaszynski, v. Uwaneme, 371 N.J. Super. 333 at 346-47, 853 A.2d 288, (App. Div.,
2004), (township and municipal police stations are places of public
accommodation)”Id. at 591,592, 902 A.2d 327, 332. The Court in Thomas went on
the state
A unit of county government performing an executive function of

county government, N.J.S.A. 2A:44-126, the CCCC is not a "private
entity that needs to be shoe-horned into a list of other, primarily private,
entities that provide services to the public." Ptaszynski, supra, 371 N.J.
Super. at 347, 853 A.2d 288. As we noted in that case: “It would indeed
lead to an anomalous result if private organizations with close ties to
government agencies were places of public accommodation because of
those ties, while the government agency itself was not.”
Both Thomas and Ptaszynski make it clear that government entities
providing executive government functions are by their very nature places of public
accommodation. The DDCP is clearly providing executive government functions
and to “countenance discrimination by it while seeking to eradicate
17
discrimination, for instance, in private organizations, public libraries and
universities, would be both inconsistent with and contrary to the goals of the
LAD." Ptaszynski, supra, 371 N.J. Super. at 348, 853 A.2d 288, 297. See also Dale
v. BSA, 160 N.J. 562, 593 n.7, 743 A.2dat 1212, n.7, (1999) (New Jersey
governmental entities are, of course, bound by the LAD.)
Even applying the rational set forth in Doe v. Div. of Youth & Family Servs.,
the Courts dismissal of Appellants NJLAD claim was premature. Considering the
Appellants are foster parents and the DDCP arguably solicits people to be foster
parents and adopt children there is at the very least a material issue of fact as the
whether the DCCP “'engages in broad public solicitation” and it was premature to
conclude that the DDCP was not a public place of accommodation and dismiss that
count of Appellants’ Complaint. In reviewing a motion to dismiss for failure to
state a claim upon which relief can be granted, pursuant to Federal Rule of Civil
Procedure 12(b)(6), "courts accept all factual allegations as true and construe the
complaint in the light most favorable to the plaintiff" Fowler v. UPMC Shadyside,
578 F.3d 203, 210 (3d Cir. 2009). Appellants have alleged DDCP is a place of
public accommodation. The lower Court should have accepted that as true for
purposes of the motion to dismiss.
18
POINT II
APPELLANTS HAVE PLEAD SUFFICIENT FACTS TO MAKE A
PLAUSIBLE CLAIM THAT THEIR FIRST AMENDMENT RIGHTS HAVE
BEEN VIOLATED.
Appellants’ Complaint alleges that they were discriminated against because
of their religious beliefs and possibly because the Defendants believe they shared
that belief with the Foster Child in their care. They had a foster child removed
from their home, were denied the right to adopt a child and they were suspended as
foster parents because of their religious belief that homosexuality is a sin. The
District Court dismissed this claim because the court did not find a sufficient
causal connection between the events that pointed at a hostility towards Appellants’
beliefs and the alleged retaliatory action taken against the Appellants, (A51-63)
While changes in how society views homosexuality has made such religious
beliefs unpopular they are still entitled to constitutional protection. In legalizing
same sex marriage the Supreme Court stated;
It must be emphasized that religions, and those who adhere to religious

doctrines, may continue to advocate with utmost, sincere conviction
that, by divine precepts, same-sex marriage should not be condoned.
The First Amendment ensures that religious organizations and persons
are given proper protection as they seek to teach the principles that are
so fulfilling and so central to their lives and faiths, and to their own
deep aspirations to continue the family structure they have long revered.
19
Obergefell v. Hodges, 135 S. Ct. 2584, 2607, 192 L.Ed.2d 609, 634
(2015).
Whatever the opportunity to adopt is labeled, a court cannot disqualify
someone from adopting solely on religious grounds without violating that person's
rights to free exercise of his religious beliefs. In re "E", 59 N.J. 36, 53, 279 A.2d
785, 794, (1971). Nor can the State prevent someone from participating in the
Foster Care System because of their religious beliefs. The government may not
force people to choose between participation in a public program and their right to
free exercise of religion. See Thomas v. Review Bd. of Indiana Employment
Security Div., 450 U. S. 707, 716, 101 S. Ct. 1425, 67 L. Ed. 2d 624 (1981);
Everson v. Board of Ed. of Ewing, 330 U. S. 1, 16, 67 S. Ct. 504, 91 L. Ed. 711
(1947).
Appellants in their complaint allege a series of events over a 4 month period
that indicate DCCP workers had some concerns about Appellants beliefs and
culminated in statements that indicated outright hostility to those beliefs. (A110-
114). First, Defendant Higgins hid from the Appellants information about the
sexual orientation of a couple who was being considered as adoptive parents for
their foster child and her siblings. This information was freely shared with the
foster parents for the siblings, (A109). This escalated to the foster child being
interrogated about her beliefs concerning homosexuality and whether she got those
beliefs from Appellants as well as efforts to convince the Foster child she did not
20
want to be adopted by the Appellant, (A109-112). Finally, it culminated in a
meeting with numerous staff of the DCCP in which they expressed their hostility
towards Appellants’ religious beliefs, (A-113, 114). This meeting was
immediately followed by the DCCP going to Court to have the child removed from
their custody, denying Appellants the ability to adopt the child, (A114) This is after
they had been the primary people being considered as adoptive parents (A110) and
suspending them as foster parents, (A-115). It should be noted that the first two
actions were taken over the objection of the law guardian, (A114) and without
advising Appellants’ that they had a right to attend the hearing and make a
statement to the Judge, (A114). Further they were not advised that they were
suspended as foster parents nor were they given any explanation as to why these
actions were taken against them, (A115)
In Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-556, 127 S. Ct. 1955,
1964-1965, 167 L. Ed. 2d 929, 940, (2007) the Court set forth the standard for
deciding a motion to dismiss.
a Rule 12(b)(6) motion to dismiss does not need detailed factual

allegations, ibid.; Sanjuan v. American Bd. of Psychiatry and
Neurology, Inc., 40 F.3d 247, 251 (CA7 1994), a plaintiff's obligation
to provide the "grounds" of his "entitle[ment] to relief" requires more
than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265,
286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986) (on a motion to dismiss,
courts "are not bound to accept as true a legal conclusion couched as a
factual allegation"). Factual allegations must be enough to raise a right
21
to relief above the speculative level, see 5 C. Wright & A. Miller,

Federal Practice and Procedure § 1216, pp 235-236 (3d ed. 2004)
(hereinafter Wright & Miller) ("[T]he pleading must contain
something more . . . than . . . a statement of facts that merely creates a
suspicion [of] a legally cognizable right of action"), on the assumption
that all the allegations in the complaint are true (even if doubtful in
fact), see, e.g., Swierkiewicz v.Sorema N. A., 534 U.S. 506, 508, n. 1,
122 S. Ct. 992, 152 L. Ed. 2d 1 (2002); Neitzke v. Williams, 490 U.S.
319, 327, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989) ("Rule 12(b)(6)
does not countenance . . . dismissals based on a judge's disbelief of a
complaint's factual allegations"); Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974) (a well-pleaded complaint
may proceed even if it appears "that a recovery is very remote and
unlikely").
To plead a claim for retaliation Appellant must allege "(1) constitutionally
protected conduct, (2) retaliatory action sufficient to deter a person of ordinary
firmness from exercising; his constitutional rights, and (3) a causal link between
the constitutionally protected conduct and the retaliatory action." Thomas v. Indep.
Twp., 463 F.3d 285, 296 (3d Cir. 2006).
Appellants have alleged a constitutionally protected right, to hold a religious
belief and to share a religious belief.
They have clearly plead retaliatory action, having a foster child they wanted
to adopt taken from their home, being denied the ability to adopt that Foster Child
and being suspended as foster parents. What is in dispute is whether Appellants
have plead facts that plausibly show that there is a causal link between the exercise
of their constitutional right and the alleged retaliatory action.

22
To show this causal link Appellants must show either an unusually
suggestive temporal proximity between the protected activity and the allegedly
retaliatory action, or a pattern of antagonism coupled with timing to establish a
causal link. See Krouse v. American Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir.
1997); Woodson v. Scott Paper Co., 109 F.3d 913, 920-21 (3d Cir. 1997). Lauren
W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). If neither of these showings is
made, then the Appellant must show that, from the evidence in the record as a
whole, the trier of fact should infer causation. DeFranco v. Wolfe, 387 F. App'x
147, 154 (3d Cir. 2010)
The Appellants have shown a temporal proximity in two ways. The first
indication that the Division may have been aware of the Appellants’ religious
beliefs is in late December 2017. This is based on the case workers failure to share
that a prospective adoptive family for the children was a same sex couple with
Appellants while freely sharing that information with foster parents for their foster
child’s siblings, (A109). This merely gives an inkling of the case workers attitude
towards Appellants religious beliefs. At that point it was not yet decided who
would be adopting the foster child and in fact it looked like the same sex couple
would be adopting the children and there was of yet no reason to exhibit hostility
towards the Appellants. It was after the Court removed that family as an option
and directed the division to evaluate Appellants as adoptive parents, (A110) (an
23
evaluation that never took place) that the case worker and other employees of the
Division showed their hostility towards the Appellants’ beliefs. As the Amended
complaint makes clear it is at that point that the retaliatory action starts. When the
Division firsts believe that Appellants may actually be able to adopt the child is
when the Defendants show their animus. It is at this point that the Appellants
rapidly go from being the primary potential adoptive parents to pariahs suspended
from the foster care system. This is the temporal causal link. The case worker
badgers the child about her religious beliefs which she seems to believe the child
picked up from Appellants. At the same time she is trying to poison the
relationship between the foster mother and the child by lying to the child, telling
that the Foster Mother tells her everything the child says. She then goes about
talking to the child about being adopted in the same household as her brothers
without advising the law guardian. A move that is in conflict with the State courts
instructions. The case worker had the child’s psychologist raise the issue of these
religious beliefs. Each and every time the Defendants tried to convince the child to
be adopted by someone else they also raised the issue of Appellants’ and the
child’s religious beliefs about homosexuality, (A110-112). This all culminated in a
meeting with numerous employees of the Division where the entire conversation
was about my clients religious beliefs about homosexuality including the
outrageous statement that because the child had that same belief she would require
24
therapy in affect saying that anyone who holds this belief is suffering from a
mental affliction, (A113). This shows a pattern of antagonism coupled with timing
to establish a causal link, Krouse Supra. Further from this evidence the trier of fact
should infer causation. DeFranco Supra.
Additionally the meeting at which hostility towards the Appellants’ beliefs
was so outrageously and blatantly set forth was followed by a hearing shortly
thereafter where the division for the first time and in opposition to the child’s law
guardian, advocated that the child be removed from Appellants care and that they
be taken off the table as possible adoptive parents, (A114). It was also sometime
after this event that without telling Appellants why or even notifying Appellants
the DCCP suspended them as foster parents. That last meeting quickly followed up
with retaliatory action, in and of itself provides a temporal causal link. In response
to this the Court while noting that ‘Appellants Questions provide a close- question
regarding causality” CITATION the lower court raises various alternative reasons
why the DCCP might have taken the actions that it did.
When assessing the merits of a Rule 12(b)(6) motion, the Court accepts as
true all factual allegations in the complaint and views those facts in the light most
favorable to the non-moving party Doe v. Univ. of the Scis., 961 F.3d 203, 208,(3d
Cir. 2020). In the present case the Court did just the opposite. In viewed the facts
in a way least favorable to the Appellant. Perhaps after discovery the Defendants
25
can explain to a jury how their obvious disapproval of Appellants religious beliefs
had absolutely nothing to do with why a Foster Child was pulled from the home of
Foster Parents who had an unblemished record, when the child wanted to stay with
them and where the law guardian supported the foster parents. Perhaps they have a
good reason for advocating that the child be placed with her siblings for adoption,
rather than keeping the child with Appellants, even though one of their
psychiatrists opined that a sibling adoption was not in the child’s best interests.
They might even be able to explain why their suspension of the Appellants as
Foster Parents without any notice and in violation of their own rules (see N.J.S.A.
30:4C-12.2 and 61.2b) was for reasons other than religious beliefs. Those
possibilities do not mean that the Appellants’ claim, that the actions of the
Defendants were because they did not like Appellants’ religious beliefs, is not a
“plausible” claim. The plausibility standard does not require probability, Argueta v.
United States Immigration & Customs Enf't, 643 F.3d 60, 62 (3d Cir. 2011.
The District Court goes on to state that we have not shown any evidence that
the named Defendants had anything to do with the suspension of Appellants’
license. First it should be noted that Appellants do not in fact know the who or the
why for the suspension. They have no way of knowing that because the Defendants
have not told them. Appellants cannot get that information without discovery. That
is one of the reasons that there are “Does” named as Defendants. It is plausible that
26
the direct supervisors of Appellants would have at the very least had input into
their status as foster parents. Appellants have plead facts sufficient to indicate that
those supervisors were hostile to Appellants’ beliefs. Finally the fact that they were
suspended without notice and without stated cause, and that they had a clean
record as foster parents, along with the Defendants’ clear disapproval of the
Appellants’ religious beliefs, certainly calls into question the motives for the
suspension (A115). Appellant "need only put forth allegations that raise a
reasonable expectation that discovery will reveal evidence of the necessary
element." Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir.
2014). Appellants’ pleadings have met the standard required to show that their
claim is plausible and their First Amendment claim should be reinstated.
27
POINT III
THE JUDICIAL ORDER REMOVING THE CHILD FROM APPELLANTS

HOME
DOES NOT PRECLUDE A FINDING OF CAUSATION
In her opinion Judge Wolfson suggests that the decision of the State Court
precludes Appellants’ claim because it “breaks the Chain of proximate causation”,
(A60). This ruling is premature. The hearing in the State Court was closed (there
is a presumption of closure to "DYFS proceedings initiated under Title 30 or Title
9." Further, in such cases, it is "the rare situation in which the public's right to
attend judicial proceedings is not outweighed by the state's compelling interest in
conducting a private hearing Div. of Youth and Fam. Serv. v. J.B., 120 N.J. 112,
129, 576 A.2d 261, 270 (1990)). Appellants do not know the basis for the State
Courts decision and will not be able to know it until discovery is permitted and we
can obtain a Court Order for the transcript from the hearing. We do not know what
the DCCP workers told the State Court Judge. We don’t know if they lied or left
facts out. If they did mislead the court then the chain of causation would not be
broken. See Borunda v. Richmond, 885 F.2d 1384, 1390 (9th Cir. 1988); Townes v.
City of New York, 176 F.3d 138, 147, (2d Cir. 1999). Further we do not know the
basis for the Judge’s decision. In essence the District Court is requiring Appellants
28
to disprove a defense that the Appellees may have where the information to rebut
that defense is unavailable without discovery.
Additionally it must be kept in mind is that what Appellants are primarily
seeking is to be reinstated as Foster Parents and for injunctive relief preventing the
DCCP workers from discriminating against them in fostering and adopting
children. We do not know why the State Court agreed with the DCCP and it is
quite possible the Judge issued its ruling because the Court felt that the religious
beliefs of the Appellants disqualified them as foster parents. Certainly if the State
Court ruling in was based on an unconstitutional reason it would not mean that the
DCCP could continue to violate the rights of Appellants going forward. Babb v.
Wilkie, 140 S. Ct. 1168, 1170, 206 L. Ed. 2d 432, 438 (2020) (Remedies must be
tailored to the injury. Plaintiffs who show that age was a “but-for” cause of
differential treatment in an employment decision, but not a “but-for” cause of the
decision itself, can still seek injunctive or other forward-looking relief.)
For that reason alone the decision of the State Court Judge should not result
in the dismissal of Appellants current complaint.
29
POINT IV
APPELLANTS HAVE A FIRST AMENDMENT RIGHT TO

SHARE THEIR RELIGIOUS BELIEFS WITH A FOSTER CHILD.
In dismissing Appellants’ First Amendment claim (as set forth above) the
Court held that the part of Appellants’ claim that alleged they were retaliated
against because they shared their religious belief with the Foster child (as opposed
to the claim that they were retaliated against because they held the belief) was not
cognizable. This legal ruling by the lower court is incorrect or at the very least
premature.
It should be understood that this is not a claim that Appellants can impose
their religious beliefs or practices on a Foster Child or even that they have a right
to proselytize but merely that they have the right to express what their beliefs are to
the Foster child without being retaliated against for doing so. It should also be
noted that it is not that the DCCP bans all discussion of religious belief between
Foster Parents and Foster Children. In fact to Appellants’ knowledge no such rule
exists and The Defendants have never asserted such a rule exists. The issue is that
Appellants appear to have been punished for sharing one very specific religious
belief. The belief that homosexual behavior is a sin. In Nat'l Inst. of Family & Life
Advocates v. Becerra, 138 S. Ct. 2361, 2371, 201 L. Ed. 2d 835, 846, (2018) the
Court stated that:

30
The First Amendment, applicable to the States through the Fourteenth

Amendment, prohibits laws that abridge the freedom of speech. When
enforcing this prohibition, our precedents distinguish between content-
based and content-neutral regulations of speech. Content-based
regulations “target speech based on its communicative content.” Reed
v. Town of Gilbert, 576 U.S. 155,163, 135 S. Ct. 2218, 192 L. Ed. 2d
236 (2015). As a general matter, such laws “are presumptively
unconstitutional and may be justified only if the government proves that
they are narrowly tailored to serve compelling state interests.” Ibid.
This stringent standard reflects the fundamental principle that
governments have “‘no power to restrict expression because of its
message, its ideas, its subject matter, or its content.’” Ibid. (quoting
Police Dep't of Chicago v. Mosley, 408 U. S. 92, 95, 92 S. Ct. 2286, 33
L. Ed. 2d 212 (1972))
Therefore, as a starting point the government in this case the DCCP and its
employees, cannot restrict Appellants’ speech based on the content of that speech.
That is what Appellants have alleged that they have done. This is presumptively
unconstitutional. It then becomes incumbent upon the state to try to justify that
restriction by showing that the restriction is narrowly tailored to serve compelling
state interests. The State has not done that. They have not attempted to do that. It
is not incumbent upon the Appellants, as the Court below suggested, to prove that
they had the right to free expression in this narrow context. That right is presumed.
The lower Court attempts to justify its position that Appellants must show case law
that they have a specific right to free speech, in the particular context of this case,
by citing case law regarding the rights of biological parents to direct the religious
upbringing of their children, (A13) There are a number of problems with this part
of Courts decision. First, this was not an argument put forth by the Defendants.
31
Secondly, this child was eligible for adoption. Parental rights had been terminated,
(A109). In this case no parental right as described by the Court existed. Finally,
The Appellants claim that they were retaliated against merely because the DCCP
believes they told the Foster Child their beliefs1. Telling someone what you believe
cannot be said to interfere with either the Child’s First Amendment rights or the
rights of their biological parents.
It is within the realm of possibilities that at a later date, the Defendants can
somehow justify a compelling state interest that supports their discrimination
against one particular religious belief. However, that would not be appropriate at
the motion to dismiss phase of a case, and in any event, the State has not attempted
to argue that. At this point the District Court’s decision that Appellants have not set
forth a cognizable First Amendment Speech right is at the very least premature.
1
Plaintiffs do not deny that at one point they did tell the Foster Child that they
believed homosexuality was a sin.
32
POINT V
APPELLANTS HAVE PLEAD A VALID EQUAL PROTECTION CLAIM.
Equal protection claims are successfully brought by a "class of one," where
the plaintiff alleges that they have been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment.
Willowbrook v. Olech, 528 U.S. 562, 563, (2000)
The lower Court dismissed the Appellants’ Equal Protection claim because
Appellant did not cite specific instances of disparate treatment. The Court was
incorrect on this point. The Appellants allege in their complaint that foster parents
caring for the Foster Childs siblings were told about the sexual orientation of a
prospective adoptive couple for the children but that information was hidden from
Appellants, (A109).
In addition to that the 3rd Circuit Court of Appeals case primarily relied upon
by the Court, in support of the decision is factually distinguishable and not
applicable in this instance.
In Young v. New Sewickley Twp., 160 Fed. Appx. 263, 266 (3d Cir. 2005) the
Court stated that “A plaintiff stating a claim under the Equal Protection Clause
must allege that he has been treated differently because of his membership in a
suspect class or his exercise of a fundamental right, or that he has been treated
33
differently from similarly-situated others and that this differential treatment was
not rationally related to a legitimate state interest.” Young's complaint neither
alleged his membership in a suspect class nor did it identify any exercise of a
fundamental right that may have given rise to his alleged treatment, Id at 266.
Appellants in this case have identified membership in a suspect class, that is, those
holding a particular religious belief and identified the exercise of a fundamental
right, that being free speech. The Court in Young went on to say that “Young’s
claim that Chief Kryder subjected Young to “"regular harassment,"” failed to
"enforce and/or properly apply the rules and regulations of the police department to
[Young's] actions," and that "no similarly situated police officers were treated in
the same manner." But that this “bald assertion that other police officers were
treated in a dissimilar manner did not provide the defendants with the notice
required to frame a responsive pleading to Young's Equal Protection claim” Supra.
at 266.
In the present case Appellants do show one specific instance of disparate
treatment (A109) but additionally their claim is fundamentally different then
Young’s. Their claim is that based on their religious beliefs (and because they
spoke about those beliefs) they were treated differently than all other Foster
Parents. By the lower Courts reasoning the Appellants would have to name a foster
parent who does not believe that homosexuality is a sin and who was allowed to
34
adopt a child or was not suspended. I think it is fair to say that there must be
hundreds of Foster Parents who fit that description. To further complicate matters,
because of the confidential nature of the work the DCCP does, how they deal with
other Foster Parents is hardly public information. That being said if they treat all
Foster Parents the way they treated the Appellants or even if they treated all other
similarly situated foster parents like Appellants in that, for instance, they regularly
do not advise them of when they are suspended, they should have no problem
proving that. Using the Young scenario to present a hypothetical, if you were to
say I belong to a protected class and I was disciplined for sleeping on the job and
that discipline was disparate. It would be fair to require that I point to persons not
in the same protected class who were caught sleeping on the job yet not
disciplined. In the present case Appellants are directly being punished not because
they did something wrong but they are being punished, without any pretext, merely
for being in a protected class. To say that they must name specific people not in the
protected class, who were not punished makes no sense. The act of punishment for
no permissible reason combined with being in the protected class provides the
presumption that there was a violation of Equal protection.
The current case is very similar to employment discrimination where it is
alleged that an adverse employment action was taken against an employee on the
basis of their protected status. In McDonnell Douglas Corp. v. Green, 411 U.S.
35
792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) the Supreme Court held that
the plaintiff in an employment bears the initial burden to establish a prima facie
case of discrimination. “The articulation of a plaintiff's prima facie case may well
vary, depending on the context of the claim and the nature of the adverse
employment action alleged.") In this context, a prima facie case of discrimination
must consist of evidence that (1) the victim belongs to a protected class; (2) the
victim suffered an adverse employment action; and (3) the challenged action took
place under circumstances giving rise to an inference of discrimination.” EEOC v.
PVNF, L.L.C., 487 F.3d 790, 800, (10th Cir. 2007). That burden has been met.
Appellants are in a protected class, Appellants suffered adverse action in that they
were denied the opportunity to adopt the child and suspended as foster parents.
These actions took place under circumstances giving rise to an inference of
discrimination (for instance, the statements of DCCP workers, acting against the
recommendation of the law guardian and at least one psychologist, and suspending
the Appellants not only without stating a reason but without notifying them).This is
sufficient to withstand a motion to dismiss and the burden should now shift to the
Appellees to articulate some legitimate, nondiscriminatory reason for their actions,
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793, (1973).
36
POINT VI
APPELLANTS HAVE PLEAD THE REQUIRED ELEMENTS OF A

CONSPIRACY CLAIM UNDER 1985
Assuming that Appellants have alleged sufficient facts to render their claim
of religious discrimination plausible the they have also properly plead a cause of
action pursuant to 42 USCS § 1985. Section 1985 (3) states in pertinent part;
If two or more persons in any State or Territory conspire,…for the

purpose of depriving, either directly or indirectly, any person or class
of persons of the equal protection of the laws, or of equal privileges and
immunities under the laws; [emphasis added] . . . .[and] in any case of
conspiracy set forth in this section, if one or more persons engaged
therein do, or cause to be done, any act in furtherance of the object of
such conspiracy, whereby another is injured in his person or property,
or deprived of having and exercising any right or privilege of a citizen
of the United States, [emphasis added] the party so injured or deprived
may have an action for recovery of the damages, occasioned by such
injury or deprivation, against any one or more of the conspirators.
In general, the conspiracy provision of 42 U.S.C.S. § 1985(3) provides a
cause of action against both private and state actors. In order successfully to bring
an action under § 1985(3) for private conspiracy, a Appellants must show, inter
alia, (1) that a racial or other class-based invidious discriminatory animus lay
behind the coconspirators' actions, (2) that the coconspirators intended to deprive
the victim of a right guaranteed by the Constitution against private impairment, and
(3) that that right was consciously targeted and not just incidentally affected
Brown v. Philip Morris, Inc., 250 F.3d 789, 793 (3d Cir. 2001). The language
37
requiring intent to deprive of equal protection, or equal privileges and immunities,
means that there must be some racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators' action. Griffin v. Breckenridge, 403
U.S. 88, 102, (1971).
Appellants proving that they were discriminated against on the basis of their
religious beliefs would prove class based invidious discriminatory animus. While
the Third Circuit does not seem to have directly ruled on the issue the lower federal
courts have, almost without exception,2 extended the coverage of the statute to
religious groups. Ward v. Connor, 657 F.2d 45, 48 (4th Cir. 1981)
The question then becomes has the Appellants plead facts sufficient to prove
the remaining prongs of the test. Appellants’ complaint clearly sets out instances
where more than one employee of the Division indicated that Appellants religious
beliefs where an issue and instances when Defendants acted in concert.
Additionally they have stated that the actions taken against them could not have
been taken by the case worker on her own.
2
The exception being the 5th Circuit see Word of Faith World Outreach Ctr.
Church v. Sawyer, 90 F.3d 118 (5th Cir. 1996)
38
CONCLUSION
For the reasons set forth herein Appellants’ complaint should be reinstated.
Respectfully Submitted
/s/ Michael P. Laffey

Michael P. Laffey
Attorney for Appellants
39
CERTIFICATION OF ADMISSION TO BAR
I, Michael P. Laffey, certify as follows:
1. I am a member in good standing of the bar of the United States Court of
Appeals for the Third Circuit.
2. Pursuant to 28 U.S.C. § 1746, I certify under penalty of perjury that the
foregoing is true and correct.
Dated: January 8, 2021
By: /s/ Michael P. Laffey

Michael P. Laffey
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation of
Fed. R. App. P. 32(a)(7)(B). This brief contains 8,757 words, excluding the
parts of the brief exempted by Rule 32(a)(7)(B) of the Federal Rules of
Appellate Procedure.
This brief complies with the typeface requirements of Rule 32(a)(5) of
the Federal Rules of Appellate Procedure and the type style requirements of
Rule 32(a)(6) of the Federal Rules of Appellate Procedure because this brief
has been prepared in a proportionally spaced typeface using the 2008 version
of Microsoft Word in 14 point Times New Roman font.
This brief complies with the electronic filing requirements of Local
Rule 31.1(c) because the text of this electronic brief is identical to the text of
the paper copies, and the Vipre Virus Protection, version 3.1 has been run on
the file containing the electronic version of this brief and no viruses have
been detected.

Michael P. Laffey
CERTIFICATE OF FILING AND SERVICE
I certify that on this 8th day of January 2021, the foregoing Brief and
Appendix Volume 1 were filed through CM/ECF system and served on all parties
or their counsel of record through the CM/ECF system.

Michael P. Laffey
APPENDIX
TABLE OF CONTENTS
Page
Volume 1 of 2:
Opinion of the Honorable Freda L. Wolfson, dated September 26, 2019 .............. A1
Order of the Honorable Freda L. Wolfson, dated September 26, 2019 ................ A39
Opinion of the Honorable Freda L. Wolfson, dated June 4, 2020 ........................ A41
Order of the Honorable Freda L. Wolfson, dated June 4, 2020 ........................... A65
Notice of Appeal, dated June 23, 2020 ................................................................. A67
Volume 2 of 2:
District Court Docket Entries................................................................................ A68
Notice of Removal, dated December 24, 2018 ..................................................... A76
Complaint, dated November 19, 2018 .................................................................. A79
Defendants’ Notice of Motion for an Order dismissing Plaintiffs’ Claims,

dated February 4, 2019 ............................................................................... A92
Certification of Michael P. Laffey, for Plaintiffs, in Opposition to Motion to

Dismiss, dated March 4, 2019 .................................................................... A94
Exhibit A: Complaint, dated November 19, 2018

(Reproduced herein at pp. A79-A91)
Amended Complaint, dated October 23, 2019 ................................................... A107
Defendants’ Notice of Motion for an Order dismissing Plaintiffs’ Claims in

the Amended Complaint, dated November 21, 2019 ............................... A120
i
Case 3:18-cv-17552-FLW-TJB Document 14 Filed 09/26/19 Page 1 of 38 PageID: 119
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY
____________________________________
:
MICHAEL LASCHE and JENNIFER :
LASCHE, :
: Civil Action No.: 18-17552 (FLW)(TJB)
Plaintiffs, :
: OPINION
vs. :
:
STATE OF NEW JERSEY, et al, :
:
Defendants. :
____________________________________:
WOLFSON, Chief Judge:
Plaintiffs Michael and Jennifer Lasche, licensed foster parents, (collectively, “Plaintiffs” or
“Lasches”) allege that Defendants the State of New Jersey, the New Jersey Division of Child
Protection and Permanency (the “DCPP”), DCPP employees Kyle Higgins, Katie Epperly, Mary
Lippencot, Janelle Clark (“Individual Defendants”), in their official and individual capacities
(collectively, “Defendants”), violated their constitutional rights when Defendants removed a foster
child from their home and suspended Plaintiffs’ foster parent license. In the instant matter,
Defendants move to dismiss Plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(1),
based on Eleventh Amendment Sovereign Immunity, and Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim. Plaintiffs oppose the motion.
For the reasons set forth below, Defendants’ Motion to Dismiss is GRANTED, with the right
for Plaintiffs to amend certain claims, as set forth herein.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
DA1
For the purposes of this motion, the relevant facts are derived from Plaintiffs’ Complaint and
assumed as true.
In September 2017, the DCPP contacted Plaintiffs, who are “devout Christians who hold
to traditional values and beliefs about family, marriage and sex,” regarding the potential placement
of two foster children. ECF No. 1, Compl. ¶¶1,8. The DCPP informed Plaintiffs that two sisters,
ages 13 (“Foster Child 1”) and 10 (“Foster Child 2”), were in need of a foster home and asked if
Plaintiffs would be willing to care for them. Id. at ¶8. Plaintiffs, experienced foster parents, agreed
to foster the two girls. Id. at ¶¶1,8.
Kyle Higgins (“Higgins”), the DCPP case worker assigned to the foster children, informed
Plaintiffs that the girls’ cases were proceeding toward adoption and that the biological father’s
parental rights had already been terminated. Id. at ¶¶2,9. Throughout October and November
2017, Higgins allegedly advised Plaintiffs that the cases were still moving toward adoption and
that they would be given “first choice” to adopt the girls. Id. at ¶11. During that time period, the
biological mother surrendered her rights and the children became eligible for adoption. Id. At that
time, Plaintiffs were informed that they were still in consideration as adoptive parents. Id. at ¶12.
However, in December 2017, Higgins informed Plaintiffs that a family in Illinois was interested
in adopting Foster Child 1 and 2, as well as their three siblings. Id. at ¶13. When Plaintiffs and
the children asked Higgins, and her supervisor Katie Epperly (“Epperly”), for information about
the prospective adoptive family, they purportedly “claimed not to know the answers.” Id. at ¶14.
Thereafter, during a conversation with the foster parents of Foster Child 1 and 2’s siblings, the
Lasches learned that the potential adoptees “were two wealthy gay men with lots of family around
to support them and the adoption.” Id. at ¶14. Plaintiffs were “baffled” as to why the DCPP
withheld that information from them, but chose to share it with the other foster parents. Id. A few
DA2
days later, Higgins allegedly questioned Foster Child 1 about her religious beliefs concerning
homosexuality and asked if her beliefs would change if she were living with another family. Id.
at ¶15.
In April 2018, Foster Child 2 was removed from Plaintiffs’ home “for confidential reasons
unique to Foster Child 2,” pursuant to an agreement between Plaintiffs and the DCPP. Id.
On May 22, 2018, Mrs. Lasche met with Higgins and Foster Child 1’s therapist. Id. at ¶17. At
that meeting, Mrs. Lasche, Higgins, and the therapist agreed not to discuss adoption with Foster
Child 1 for the foreseeable future because it was too soon after Foster Child 2’s removal. Id. They
also discussed the possibility of Foster Child 1 spending additional time with her siblings to
determine if she would like to be adopted by the same family as them, and Mrs. Lasche indicated
that she “was not opposed to letting Foster Child 1 explore that and allowing her to make the
decision without any questions or resentment.” Id. During that meeting, Higgins indicated that a
court hearing would be held on June 4, 2018, and a judge would make a determination as to
whether all of the children should be adopted by their current foster families, or if it would be in
the children’s best interest for the Illinois couple to adopt all five siblings. Id. at ¶18.
The morning of the scheduled court hearing, Plaintiffs purportedly received a text message
from Foster Child 1’s Law Guardian 1 informing them that the Illinois couple was “off the table”
and that a New Jersey family court judge had ordered psychiatric evaluations of the five children
before a permanent placement decision was made. Id. at ¶19.
1
The Court takes judicial notice that the Law Guardian Program is a component of the New
Jersey Office of the Public Defender that is responsible for providing legal representation to
children in family court matters involving adoption, allegations of abuse and neglect, and the
termination of parental rights. See New Jersey Office of the Public Defender Structure: Office of
the Law Guardian, https://www.state.nj.us/defender/structure/olg/ (last visited September 10,
2019).
3
DA3
Thereafter, Higgins allegedly contacted Plaintiffs to discuss transitioning Foster Child 1 to
another foster home, where her younger brother resided, and Mrs. Lasche expressed confusion,
because she was under the impression that since the Illinois family was no longer pursuing the
adoption, the DCPP’s intention was to allow each of the siblings to be adopted by their then- foster
families. Id. at ¶21. To obtain more information, Mrs. Lasche contacted Foster Child 1’s Law
Guardian, and the Law Guardian was allegedly surprised and offered to investigate the situation.
Id. at ¶22.
A few weeks later, Foster Child 1 came home from a regularly scheduled therapy session and
informed Plaintiffs that she was upset because her “therapist kept bringing up religion and told her
she should not feel pressured to follow her foster family’s religious beliefs.” Id. at ¶20. On another
occasion, while Foster Child 1’s therapist was at Plaintiffs’ home for a therapy session, Mrs.
Lasche asked the therapist why the therapist had inquired whether Foster Child 1 was “being
pressured” to follow Plaintiffs’ religion.” Id. at ¶23. Initially, the therapist allegedly responded
that “it was normal to discuss how people have different beliefs, ethics, religion, etc.” Id. After
further questioning from Mrs. Lasche, however, the therapist eventually divulged that Higgins had
called before the session and had relayed to the therapist Plaintiffs’ “ideas about same-sex
couples.” Id. Higgins also purportedly asked the therapist to discuss the possibility of relocating
Foster Child 1 to another foster home with her brothers. Id.
On or about June 21, 2018, Higgins picked up Foster Child 1, ostensibly for the purpose of
visiting one of her siblings. Id. at ¶24. Plaintiffs allege that it was “very rare” for Higgins to
transport Foster Child 1 to such visits. Id. While on the way to the visit, Higgins allegedly stopped
at a Dunkin Donuts with Foster Child 1 and informed her that Plaintiffs would not be able to “meet
her needs.” Id. at ¶25. Plaintiffs assert that during the visit, Higgins “interrogated Foster Child 1
DA4
about her religious beliefs” and “lied to her in an effort to intimidate her into agreeing that she did
not want to be adopted by Plaintiffs.” Id. at ¶¶24-25.
Upon returning from the visit, Higgins met with Plaintiffs and informed them that the DCPP
intended to meet with them to “work with” Plaintiffs in order to reach a result that was in Foster
Child 1’s best interest. Id. at ¶26. When Plaintiffs inquired about the purpose of the meeting, they
were allegedly informed by Epperly that the DCPP “was concerned that both Foster Child 1 and
Foster Child 2 indicated that same-sex relationships were against their religion,” a belief which
the DCPP regarded as coming from Plaintiffs. Id. at ¶27.
On Friday June 29, 2018, the Lasches, their attorney, an attorney for the State of New Jersey,
Higgins, Epperly, Epperly’s supervisor Mary Lippencott, Janelle Clark, and one or two other
DCPP employees whom Plaintiffs did not identify, attended a meeting at the DCPP’s Monmouth
County Office. Id. at ¶28. During the meeting, the DCPP representatives allegedly expressed
concern about Plaintiffs’ belief that homosexuality is a sin and its potential impact on Foster Child
1. Id. at ¶29. The DCPP officials allegedly discussed the possibility that Plaintiffs might reject
Foster Child 1 if she “decided to explore her sexuality” and sought assurances to the contrary from
Plaintiffs. 2 Id. One individual purportedly expressed the belief that in order to avoid possible
future harm, Foster Child 1 might need therapy to address her belief that homosexuality was a sin.
Id.
A few days later, on July 2, 2018, a hearing was held before a New Jersey family court judge,
and the DCPP sought to remove Foster Child 1 from Plaintiffs’ home. Id. at ¶30. Plaintiffs allege
that they were not given notice that they had a right, pursuant to New Jersey law, to be heard at
2
The Complaint does not identify whether such assurances were provided by Plaintiffs or
how Plaintiffs responded to the DCPP’s questioning, if at all.
5
DA5
the hearing. Id. at ¶31. At the hearing, Foster Child 1’s Law Guardian objected to the removal.
Id. Nonetheless, the next day, presumably pursuant to a court order, the DCPP removed Foster
Child 1 from Plaintiffs’ home and Plaintiffs have not seen the child since. Id. at ¶32.
On October 12, 2018, a DCPP representative visited Plaintiffs’ home in order to conduct a
yearly inspection which was necessary for Plaintiffs to renew their foster parent license. Id. at
¶35. The representative asked Plaintiffs if they knew that their foster parent license had been
suspended, and Plaintiffs stated that they were unaware of the suspension. Id. The representative
allegedly informed Plaintiffs that they should have been notified of the suspension and the bases
for the suspension. Id.
On November 19, 2018, Plaintiffs filed a four-count complaint against Defendants in New
Jersey state court, alleging violations of the New Jersey Law Against Discrimination (“NJLAD”),
the New Jersey Civil Rights Act (“NJCRA”), 42 U.S.C §1983, and 42 U.S.C §1985. 3 Plaintiffs
allege that the DCPP took retaliatory actions against Plaintiffs’ religious beliefs, violating the first
Amendment of the United States Constitution and the New Jersey Law Against Discrimination.
Id. at ¶¶39-40, 45. Furthermore, Plaintiffs contend that the Individual Defendants removed Foster
Child 1 from Plaintiffs’ home and suspended their foster parent license without giving them notice
and an opportunity to be heard in violation of Plaintiffs’ Fourteenth Amendment rights. Id. at ¶46.
On December 24, 2018, Defendants removed the matter to this Court, and thereafter, filed the
instant motion to dismiss, for lack of subject matter jurisdiction based on sovereign immunity
grounds, and for failure to state a claim. See ECF No. 6, Def. Br.
3
Counts II-IV of Plaintiffs’ complaint combine violations of different constitutional rights
under the same count. It is better practice to separate each alleged constitutional violation in a
different count, for the convenience of both the Court and the litigants when addressing the
potential dismissal or amendment of certain claims.
6
DA6
II. STANDARD OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) permits the Court to dismiss a proceeding for lack
of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). This includes cases where Eleventh
Amendment immunity bars the plaintiff's claims, as the Court of Appeals for the Third Circuit has
noted that “the Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject
matter jurisdiction.” Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2 (3d Cir. 1996)
(citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–100, 1 (1984)).
B. Federal Rule of Civil Procedure 12(b)(6)
In reviewing a motion to dismiss for failure to state a claim upon which relief can be
granted, pursuant to Federal Rule of Civil Procedure 12(b)(6), “courts accept all factual allegations
as true, construe the complaint in the light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (internal quotation marks and citation
omitted). While Federal Rule of Civil Procedure do not require that a complaint contain detailed
factual allegations, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Thus,
to survive a Rule 12(b)(6) motion to dismiss, the Complaint must contain sufficient factual
allegations to raise a plaintiff’s right to relief above the speculative level, so that a claim “is
plausible on its face.” Id. at 570; Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
DA7
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
To determine whether a plaintiff has met the facial plausibility standard mandated by
Twombly and Iqbal, courts within this Circuit engage in a three-step progression. Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must “outline the elements a
plaintiff must plead to state a claim for relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
Next, the Court “peel[s] away those allegations that are no more than conclusions and thus not
entitled to the assumption of trust. Id. Finally, where “there are well-pleaded factual allegations,
the court should assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.” Iqbal, 556 U.S. at 679.
III. ANALYSIS
A. Eleventh Amendment Sovereign Immunity
As a threshold matter, this Court must determine whether the DCPP, the State of New
Jersey, and the Individual Defendants, sued in their official capacity, may invoke sovereign
immunity. The Eleventh Amendment provides that “[t]he judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against one of
the United States by citizens of another state, or by citizens or subjects of any foreign state.” U.S.
Const. amend. XI. The Amendment affords states and state agencies immunity from suits brought
by citizens in federal court, regardless of whether legal or equitable relief is sought. See Pennhurst
State School & Hosp., 465 U.S. at 89,100-101; see also Thorpe v. New Jersey, 246 F. App’x 86,
87 (3d Cir. 2007) (“The Eleventh Amendment of the U.S. Constitution protects a state or state
agency from a suit brought in federal court by one of its own citizens regardless of the relief sought.
. . .”). Eleventh Amendment immunity also extends to state agencies and departments, such as the
DA8
DCPP. Alabama v. Pugh, 438 U.S. 781, 781 (1978); Pa. Fed’n of Sportsmen’s Clubs, Inc. v.
Hess, 297 F.3d 310, 323 (3d. Cir. 2002); Chisolm v. McManimon, 275 F.3d 315, 323 (3d Cir.
2001). The Third Circuit has long held that the DCPP, formerly known as DYFS, is an arm of the
state for sovereign immunity purposes. Howard v. N.J. Div. of Youth & Family Servs., 398 F.
App’x 807, 811-12 (3d Cir. 2010) (“DYFS is immune from suit under the Eleventh Amendment”);
Rich v. New Jersey, No. 14-2075, 2015 WL2226029, at *7 (D.N.J. May 12, 2015) (“[New Jersey
Department of Children and Families] is an arm of the state for sovereign immunity purposes.”).
Officers employed by DCPP, sued in their official capacity, are also entitled to immunity under
the Eleventh Amendment when sued for money damages. Id.
However, “[a] state may waive its immunity from suit by invoking federal court
jurisdiction voluntarily.” Lombardo v. Pa. Dep’t. of Pub. Welfare, 540 F.3d 190, 198 (3d Cir.
2008). By voluntarily invoking federal court jurisdiction, such as by removing a case from state
court, the State “waives [its] immunity from suit in a federal forum.” Id. at 198. However, “the
removing State retains all defenses it would have enjoyed had the matter been litigated in state
court, including immunity from liability” Id. at 200. Furthermore, under the Ex Parte Young
doctrine, Eleventh Amendment immunity is waived when officers of a state are sued for
prospective injunctive relief to end an ongoing violation of federal law. Pa Fed'n of Sportsmen's
Clubs, Inc., 297 F.3d at 323; see also Ex Parte Young, 209 U.S. 123, 159-60 (1908). In order for
the Ex Parte Young exception to be applicable, “[t]he relief sought must be prospective,
declaratory, or injunctive relief governing an officer’s future conduct and cannot be retrospective,
such as money damages.” MCI Telecomm. Corp. v. Bell Atl. Pa., 271 F.3d 491, 506 (3d Cir. 2001).
To determine whether application of the doctrine is appropriate, “a court need only conduct a
straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law
DA9
and seeks relief properly characterized as prospective.” Pa. Fed'n of Sportsmen's Clubs, Inc., 297
F.3d at 323 (quoting Verizon Maryland, Inc. v. Public Service Commission of Maryland, 5353 U.S.
635, 645 (2002)).
Here, the doctrine of sovereign immunity does not bar this Court from hearing this case.
While sovereign immunity can operate as a bar to jurisdiction, “voluntary removal waives a State’s
immunity from suit in a federal forum.” Lombardo, 540 F.3d at 198. Although the State, the
DCPP, and the Individual Defendants, in their official capacities, would generally be entitled to
immunity in this context, Defendants removed this matter from state to federal court and
voluntarily invoked the jurisdiction of this Court in the process. 4 Accordingly, this Court has
subject matter jurisdiction over the instant action. However, Defendants’ removal waives only
sovereign immunity from suit; they retain any state sovereign immunity affirmative defenses
which would be available to them under New Jersey state law. Furthermore, to the extent Plaintiffs
seek injunctive relief – in the form of reinstatement of their foster parent license 5 – against state
officials, such claims would fall within the Ex Parte Young exception.
4
Although Defendants raised sovereign immunity as a basis for dismissal in their moving
brief, in their reply brief, they concede that “defendants have waived immunity from suit in this
court as to Plaintiffs’ claims.” See ECF No. 13, Def. Reply Br. at 3.
5
On each count of their complaint, Plaintiffs seek “injunctive relief, damages, punitive
damages, attorney fees and costs of suit” without clarifying the specific injunctive relief sought.
See generally Pl. Compl. However, Plaintiffs’ briefing avers that they are “not seeking to overturn
any determinations made regarding the Foster Child . . . . The injunctive relief that the [Plaintiffs]
seek is to be re-instated as Foster Parents and to participate in the system going forward without
being subject to religious discrimination and prejudice by the employees of the [DCPP].” See Pl.
Br. at 3. Accordingly, Plaintiffs’ Complaint seeks to remedy an “ongoing violation of federal law
and seeks relief properly characterized as prospective” as required by the Ex Parte Young
exception. Pa. Fed’n of Sportsmen's Clubs, Inc., 297 F.3d at 323.
10
DA10
Although Eleventh Amendment sovereign immunity does not prevent this Court from
exercising subject matter jurisdiction over the present case, nonetheless, Plaintiffs’ NJCRA claims
against the State of New Jersey, the DCPP, and the Individual Defendants in their official capacity,
and Plaintiffs’ Section 1983 and Section 1985 claims against the Individual Defendants in their
official capacity, must be dismissed, because those defendants are immune from liability. 6 See
Lombardo, 540 F.3d at 194 (“We can discern two distinct types of state sovereign immunity:
immunity from suit in federal court and immunity from liability.”).
Both Section 1983 and the NJCRA provide a plaintiff with a cause of action for certain
violations of constitutional rights, under the Federal and state constitutions, respectively. Section
1983 provides:
Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding
for redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable.
42 U.S.C §1983. To state a claim under Section 1983, a plaintiff must allege the violation of a
right secured by the Constitution or laws of the United States and that the alleged deprivation was
committed or caused by a person acting under color of state law. See Harvey v. Plains Twp. Police
Dep’t, 635 F.3d 606, 609 (3d Cir. 2011); see also West v. Atkins, 487 U.S. 42, 48 (1988).
Similarly, the NJCRA provides:
6
Although Plaintiffs have alleged an NJCRA claim against all Defendants, see Compl.,
¶42, Plaintiffs’ Section 1983 and Section 1985 claims are only against the Individual Defendants,
in both their official and individual capacities, see Compl. ¶¶44-46, 50.
11
DA11
Any person who has been deprived of any substantive due process
or equal protection rights, privileges or immunities secured by the
Constitution or laws of the United States, or any substantive rights,
privileges or immunities secured by the Constitution or laws of this
State, or whose exercise or enjoyment of those substantive rights,
privileges or immunities has been interfered with or attempted to
be interfered with, by threats, intimidation or coercion by a person
acting under color of law, may bring a civil action for damages and
for injunctive or other appropriate relief.
N.J. Stat. Ann. § 10:6-2(c). To establish an NJCRA violation, a plaintiff must show that (1) the
New Jersey Constitution or laws of New Jersey conferred a substantive right; (2) the defendant
deprived the plaintiff of this right; and (3) the defendant was acting under color of law when doing
so. Tumpson v. Farina, 95 A.d3 210, 223 (N.J. 2014). However, the NJCRA “is interpreted as
analogous to § 1983.” Szemple v. Corr. Med. Servs., Inc., 493 F. App’x 238, 241 (3d Cir. 2012);
Ianuale v. Borough of Keyport, No. 16-9147, 2018 WL 5005005, at *11 (D.N.J. Oct. 16, 2018)
(“The NJCRA was modeled after § 1983, and, thus, courts in New Jersey have consistently looked
at claims under the NJCRA “through the lens of § 1983.”); Perez v. Zagami, 94 A.3d 869, 877
(N.J. 2014) (stating that “[t]he legislative history is replete with references that the [NJ]CRA was
intended to provide New Jersey citizens with a state analogue to Section 1983 actions.”).
Neither the State, the DCPP, or the Individual Defendants are “persons” in their official
capacity. It is well-established that both the state itself, and an arm of the state, such as a state
agency like the DCPP, are not “persons” for purposes of Section 1983. See Will v. Mich. Dept. of
State Police, 491 U.S. 58, 71(1989)(“We hold that neither a State nor its officials acting in their
official capacities are ‘persons’ under §1983”); Indep. Enterprises Inc. v. Pittsburgh Water &
Sewer Auth., 103 F.3d 1165, 1173 (3d Cir. 1997)(“the most important inquiry in determining
whether a governmental entity is a ‘person’ within the meaning of § 1983 is whether the entity is
an ‘arm[ ] of the State’ for Eleventh Amendment purposes’”(quoting Will, 491 U.S. at 70)).
12
DA12
Similarly, because the NJCRA is analogous to Section 1983, none of the Defendants are a
“person” under the NJCRA. See Didiano v. Balicki, 488 F. App’x 634, 638 (3d Cir. 2012) (holding
that “[n]othing in the language or subject matter of the NJCRA compels [the] conclusion that the
State is a person.”); Brown v. State, 124 A.3d 243, 55 (N.J. App. Div. 2015)(“likewise, because
the State is not a ‘person’ under the Civil Rights Act, it is equally immune from suits from damages
as it is for suits seeking injunctions and other equitable relief”), rev’d on other grounds, 165 A.3d
735 (2017). Thus, the NJCRA and Section 1983 claims against the State, the DCPP, and the DCPP
employees acting in their official capacity are dismissed with prejudice because they are not
“persons” within the meaning of either civil rights statute.
However, Plaintiffs have also alleged civil rights claims against the DCPP employees
acting in their individual capacity. Those claims are not precluded by sovereign immunity, as state
employees, agents or officials, when sued in their individual capacities are “persons” within the
meaning of Section 1983 and the NJCRA. Hafer v. Melo, 502 U.S. 21, 31 (1991)(“the Eleventh
Amendment does not erect a barrier against suits to impose ‘individual and personal liability’ on
state officials under § 1983”).
B. Failure to State a Claim
Plaintiffs’ NJLAD claim is the sole remaining claim against the State, the DCPP, and the
Individual Defendants, in their official capacity. Plaintiffs also assert following four claims against
the Individual Defendants in their personal capacities: (1) violations of the NJLAD as a result of
the Individual Defendants “deny[ing] Plaintiffs the ability to adopt/and or foster a child because
of Plaintiffs’ religious beliefs,” Compl. ¶39; (2) violations of the NJCRA; and (3) violations of
Section 1983 and Section 1985 based on the infringement of Plaintiffs’ First and Fourteenth
Amendment rights.
13
DA13
Defendants have moved to dismiss those claims for failure to state a claim. Further, the
Individual Defendants have also raised the doctrines of absolute and qualified immunity as a
defense to Plaintiffs’ claims.
i. Absolute Immunity
State officials, sued in their individual capacities, may assert the defense of absolute
immunity. Here, the Individual Defendants have asserted that they are entitled to absolute
prosecutorial immunity with respect to all of Plaintiffs’ claims.
Prosecutorial immunity is a form of immunity applicable to officials “functioning as
integral parts of the judicial process.” McArdle v. Tronetti, 961 F.2d 1083, 1084 (3d Cir. 1992).
Absolute immunity depends on whether the challenged “actions [are] ‘intimately associated with
the judicial phase of the criminal process.’” Burns v. Reed, 500 U.S. 478, 486 (1991) (quoting
Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). “[T]he official seeking absolute immunity bears
the burden of showing that such immunity is justified for the function in question.” Id. at 486.
The Third Circuit has previously addressed the scope of absolute immunity in the context
of government social workers involved in child removal actions on two occasions. See Ernst v.
Child & Youth Servs. of Chester Cty., 108 F.3d 486, 488–89 (3d Cir. 1997)(holding that “child
welfare workers and attorneys who prosecute dependency actions on behalf of the state are entitled
to absolute immunity from suit for all of their actions in preparing for and prosecuting such
dependency proceedings”); B.S. v. Somerset Cty., 704 F.3d 250, 256 (3d Cir. 2013)(holding that
state child welfare caseworkers are “absolutely immun[e] ... from liability with respect to their
actions on behalf of the state in preparing for, initiating, and prosecuting dependency
proceedings”).
14
DA14
In B.S., a mother sued DYFS employees who removed her child from her home pursuant
to a family court order, and proceeded with an investigation of alleged child abuse. 704 F.3d at
265. In determining whether the DYFS employees were entitled to absolute immunity, the Third
Circuit examined the actions taken by the social workers which gave rise to each of the plaintiff’s
claims, and determined whether those acts were prosecutorial in nature. Id. at 265-69. The court
found that the actions underlying the plaintiff’s procedural due process claim stemmed from the
social workers’ “solicitation of information from [the child’s] doctor and the compilation of her
findings into an abuse report” prior to the judicial proceeding, and thus, such actions “were
fundamentally prosecutorial.” Id. at 266. Turning to plaintiff’s substantive due process claims,
the court examined whether the social worker’s investigation and child abuse report, after the
initial removal proceeding could be considered legal advoacy. Id. at 269-270. The court noted
that typically, “investigating potential child abuse and preparing a report required under state law
does not approximate legal advocacy,” however, in the case before it “the further investigation that
[the social worker] undertook after [the removal order], and the subsequent [abuse] report that [the
social worker] filed, were part of an ongoing judicial proceeding throughout which she served as
an advocate for the state.” Id. at 269. Therefore, the social worker was entitled to absolute
immunity with respect to the Plaintiff’s substantive due process claims, as well. Id.
Based on the foregoing, in determining whether absolute immunity applies, I must assess
whether the DCPP employees “‘function[ed] as the state’s advocate when performing the
action(s)’ that gave rise to the due process violations [plaintiff] seeks to redress, or whether those
claims instead arose from unprotected ‘administrative or investigatory actions.’” B.S., 704 F.3d at
265 (quoting Odd v. Malone, 538 F.3d 202, 208 (3d Cir. 2008)). “The key to the absolute immunity
determination is not the timing of the investigation relative to a judicial proceeding, but rather the
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underlying function that the investigation serves and the role the caseworker occupies in carrying
it out.” B.S., 704 F.3d at 270.
Here, Plaintiffs’ claims are premised on two distinct factual allegations: 1) the Individual
Defendants’ investigation of Foster Child 1’s beliefs on homosexuality and the removal of Foster
Child 1 and 2) the Individual Defendants’ suspension of Plaintiffs’ foster parent license based on
their alleged hostility towards Plaintiffs’ religious beliefs. It is not clear, at this juncture, that the
Individual Defendants are entitled to absolute immunity for either set of actions.
Unlike in B.S. and Ernst, it is not clear whether the Individual Defendants’ roles in
removing Foster Child 1 fell within the scope of their duties as “state advocates.” Based on the
Complaint, the Individual Defendants’ actions involved collecting information regarding
Plaintiffs’ views on homosexuality and the potential impact of these views on Foster Child 1,
formulating a recommendation, and presenting that information to the New Jersey Family Court
for the judge to make a placement determination. However, the precise nature of the DCPP
employees’ role when they first met with the Lasches and Foster Child 1 is not clear from the face
of the Complaint. Indeed, the Complaint is silent as to whether the meeting took place in
connection with a family court removal proceeding or whether the Individual Defendants were
acting in an administrative capacity. Although the process culminated in a proceeding before the
New Jersey Family Court, it does not appear that the DCPP employees were “preparing for,
initiating, [or] prosecuting [the removal] proceedings” when they initially began questioning
Foster Child 1 regarding her views on homosexuality. Ernst, 108 F.3d at 495. Rather, those
meetings likely fell within the scope of the social workers’ administrative functions, as part and
parcel of their daily workload.
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Similarly, it is unclear what role, if any, the Individual Defendants played in the suspension
of Plaintiffs’ foster parent license. The Complaint is devoid of facts indicating the process by
which Plaintiffs’ foster parent license was suspended, such as whether the suspension occurred as
part of a judicial proceeding, so that the Individual Defendants could be said to have been acting
in a prosecutorial capacity.
At this juncture, based on the pleadings, the Court cannot rule with certainty that the
Individual Defendants are entitled to absolute immunity on any of Plaintiffs’ claims. This defense
is more appropriately raised in a summary judgment motion.
ii. Plaintiffs’ Fourteenth Amendment Claims
It appears Plaintiffs’ Complaint alleges violations of both the Equal Protection and the Due
Process clauses of the Fourteenth Amendment. Specifically Plaintiffs allege the following:
Defendants “deprived the Plaintiffs of their substantive due process, equal protection rights,
privileges or immunities secured by the Constitution,” Compl. ¶42; “the individual Defendants
took actions adversely affecting the Plaintiffs without giving them notice and an opportunity to be
heard in violation of Plaintiffs’ rights pursuant to the 14th Amendment to the Constitution,” Id. at
¶46; “Plaintiffs have a constitutionally protectable interest in Foster Child 1 . . . and that interest
was arbitrarily denied them in violation of the 5th and 14th Amendments to the Constitution,” Id.
at ¶47; and “[t]he individual Defendants conspired for the purpose of depriving Plaintiffs . . . the
equal protection of the laws, and/or of the equal privileges and immunities under the laws . . . . As
a result of said conspiracy Plaintiffs have been deprived of having and exercising the rights or
privilege of a citizen of the United States, granted pursuant to the 1st, 5th and 14th Amendment. ”
Id. at ¶¶50-51.
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However, Plaintiffs’ briefing addresses only the First Amendment violation and the denial
of procedural due process, without expanding on the alleged Equal Protection violation.
Nonetheless, since the Complaint is ambiguous as to the type of Fourteenth Amendment violation
alleged, I will consider the Complaint as alleging both equal protection and due process claims.
1. The Procedural Due Process Claim
The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive
any person of life, liberty, or property, without due process of law.” U.S. Const., Amend. XIV, §
1. “A constitutionally protected liberty or property interest may arise directly from the
Constitution or from federal or state statutes or regulations.” Baldwin v. Hous. Auth. of City of
Camden, NJ, 278 F. Supp. 2d 365, 378 (D.N.J. 2003). “Essentially, due process requires that a
person be given notice and an opportunity to be heard prior to an adverse action.” Id. (citing
Goldberg v. Kelly, 397 U.S. 254, 267–68 (1970)). When a plaintiff alleges that state actors have
failed to provide procedural due process, a court must determine “whether the asserted individual
interests are encompassed within the fourteenth amendment's protection of ‘life, liberty, or
property.’” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (citing Robb v. City of Philadelphia,
733 F.2d 286, 292 (3d Cir. 1984)). If a protected interest is implicated, a court must then “decide
what procedures constitute ‘due process of law.’” Id. Here, the Court need not reach the second
step of that inquiry, because Plaintiffs have failed to allege the deprivation of any interest protected
under the Due Process Clause, a threshold inquiry.
Here, Plaintiffs’ Complaint alleges that the interests at issue are both their liberty interest
in pursuing a familial relationship with Foster Child 1, as well as their property interest in the form
of their foster parent license. Specifically, Plaintiffs’ Complaint alleges that “the individual
Defendants took actions adversely affecting the Plaintiffs without giving them notice and an
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opportunity to be heard in violation of Plaintiffs’ rights pursuant to the 14th Amendment to the
Constitution,” Compl., ¶46 and that “Plaintiffs have a constitutionally protectable interest in Foster
Child 1 in that . . . they had a close familial relationship with said Foster Child 1 and that interest
was arbitrarily denied them in violation of the 5th and 14th Amendments to the Constitution.” Id.
at ¶47. However, Plaintiffs’ Opposition brief concedes that they do not, in fact, have a
constitutionally protectable liberty interest in their relationship with Foster Child 1, despite the
allegations in Paragraph 47 of the Complaint, and that Plaintiffs’ only focus in this litigation is the
revocation of their foster parent license. 7 See Pl. Br. at 1(“While there may not be a right to be a
7
Even if Plaintiffs had not conceded that their relationship to Foster Child 1 does not give
rise to a fundamental liberty interest protected under the Fourteenth Amendment, such a claim
could not survive. Although parents have “constitutionally protected liberty interests” in the
“custody, care and management of their children,” Croft v. Westmoreland Cty. Children & Youth
Servs., 103 F.3d 1123, 1125 (3d Cir. 1997), courts have generally held that absent special
circumstances foster parents do not possess similar liberty interests regarding foster children.
Rodriguez v. McLoughlin, 214 F.3d 328, 339-41 (2d Cir. 2000)(“any liberty interest arising in the
preservation of a biologically unrelated foster family would arise, if at all, only under state law
and not under the Due Process Clause itself.”); Renfro v. Cuyahoga Cty. Dep't of Human Servs.,
884 F.2d 943, 944 (6th Cir. 1989) (holding that “[t]he nature of the foster care relationship is
distinctly different from that of the natural family; namely, it is a temporary arrangement created
by state and contractual agreements,” thus it does not give rise to a constitutionally protected
liberty interest.); Drummond v. Fulton Cty. Dep't of Family & Children's Servs., 563 F.2d 1200,
1207 (5th Cir. 1977)(holding that in cases “in which a child placement agency charged with the
custody of a child, places that child [with a foster family] for temporary care” the foster parents do
not have a constitutionally protected liberty interest in the relationship with the child); but
see Elwell v. Byers, 699 F.3d 1208, 1217 (10th Cir. 2012) (finding that foster parents who had
received court approval for their adoption plan possessed a protectable liberty interest because they
had a “reasonable expectation of developing a permanent relationship with the child”); Rivera v.
Marcus, 696 F.2d 1016 (2d Cir. 1982) (recognizing protectable liberty interest of foster parent who
was biologically related to her foster children). As the Supreme Court has explained, the liberty
interest that families possess is rooted in “intrinsic human rights, as they have been understood in
‘this Nation’s history and tradition.’” Smith v. Org. of Foster Families For Equal. & Reform, 431
U.S. 816, 845 (1977) (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977)). By
contrast, “[w]hatever emotional ties may develop between foster parent and foster child have their
origins in an arrangement in which the State has been a partner from the outset.” Id. When the
State interferes with the relationship between foster parents and foster children, the State is not
interfering “with a relationship having its origins entirely apart from the power of the State,” but
rather with a family unit that “has its source in state law and contractual arrangements.” Id. Thus,
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foster parent, or to adopt a child, there is a constitutional right to participate in the system free
from discrimination because of one’s religious beliefs”); Pl. Br. at 7 (“Whatever the opportunity
to adopt is labeled, a court cannot disqualify someone from adopting on religious grounds without
violating that person’s rights to free exercise of his religious beliefs.”). Accordingly, any claims
related to an alleged violation of Plaintiffs’ due process rights on the basis of an alleged liberty
interest in their familial relationship with Foster Child 1 is dismissed.
As refined by their briefing on this motion, Plaintiffs’ focus is on the suspension of their
foster parent license. They contend that they were not given notice or an opportunity to be heard
regarding the suspension of their foster parent license. Pl. Br. at 7. They also contend that they
were denied procedural due process, because they were not advised of their statutory right,
pursuant to New Jersey state law, to appear and make a statement at the hearing regarding the
placement of Foster Child 1. Id.
Under certain circumstances, a statutory right may rise to the level of a protected interest
under the Due Process Clause. A protected liberty interest “may arise directly from the
Constitution or from federal or state statutes or regulations,” whereas “[p]roperty interests are not
created by the Constitution, but ‘are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law—rules or understandings
that secure certain benefits and that support claims of entitlement to those benefits.’” Baldwin,
the extent of any liberty interests possessed by foster parents, is derived from “the expectations
and entitlements of the parties” under state law, rather than the Due Process Clause. id. at 845-46;
see also N.J. Div. of Youth & Family Servs. v. D.P., 422 N.J. Super. 583, 593 (App. Div. 2011)
(“The legal relationship between the resource parent[ ] and the child emanates through a contract
with the Division sanctioned by state law.”). Accordingly, to the extent Plaintiffs have not
abandoned their due process claim based on the alleged interference with their liberty interest in
their relationship with Foster Child 1, it fails as a matter of law.
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278 F. Supp. 2d at 378 (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 571(1972)).
However, “an expectation of receiving process is not, without more, a liberty interest protected by
the Due Process Clause.” Olim v. Wakinekona, 461 U.S. 238, 250 n.12 (1983).
In order for a statute to give rise to a constitutionally protectable property interest, the
statute must contain “explicitly mandatory language, i.e. specific directives to the decisionmaker
that if the regulations’ substantive predicates are present, a particular outcome must follow,”
Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 463 (1989), or the complainant “must
show that particularized standards or criteria guide the [government’s] decisionmakers.” Olim, 461
U.S. at 249. Ultimately, in order to have a constitutionally protected property interest “a person
clearly must have ‘more than an abstract need or desire’ and ‘more than a unilateral expectation
of” the benefit sought, rather the person “must instead, have a legitimate claim of entitlement to
it.’” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756, (2005) (quoting Bd. of Regents of State
Colleges, 408 U.S. at 564).
As an initial matter, Plaintiffs’ foster parent license is not, itself, a constitutionally
protected property interest. Indeed, Plaintiffs do not have a right to their foster parent license.
Whether a benefit granted by the state rises to the level of a protected property interest for purposes
of procedural due process is determined by looking to the state law that created the benefit. Larsen
v. Senate of Commw. of Pa., 154 F.3d 82, 92 (3d Cir. 1998); Kelly v. Borough of Sayreville, N.J.,
107 F.3d 1073, 1077 (3d Cir. 1997). Under the Resource Family Parent Licensing Act, prospective
foster parents are required to submit to an assessment by DCPP and obtain a license to act as a
foster parent. See N.J. Stat. Ann. §30:4C-27.3 to 27.12. As part of the licensing scheme,
prospective foster parents are required to submit an application, possess good moral character,
consent to a background check, and participate in both pre- and in- service foster parent training.
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See N.J. Stat. Ann. § 30:4C-27.6. The license is valid for three years, and each year, the foster
parents must undergo a yearly home inspection and interview in order to maintain the license. N.J.
Admin. Code § 3A:51-2.2 to 2.3. Clearly, nothing in the statutory scheme suggests that Plaintiffs
had a “legitimate claim of entitlement” to their foster parent license. A foster parent license is not
a “property interest” protected by the Due Process Clause, but rather, a temporary contract with
the State, which is subject to renewal every three years. See e.g., Lockhart v. Matthew, 83 F. App'x
498, 500 (3d Cir. 2003) (holding Plaintiff did not have a constitutionally protected property interest
in EMT license which expired every two years). Thus, Plaintiffs’ foster parent license is not a
constitutionally protected property interest.
Furthermore, although the statutory scheme conveys certain procedural protections upon
Plaintiffs, those procedural requirements are not constitutionally required. In other words, while
Plaintiffs undeniably possessed – and were allegedly denied -- a statutory right to be informed of,
and to be provided an opportunity to contest the suspension of their foster parent license, DCPP’s
alleged failure to abide by the state statute, does not give rise to a constitutional violation. Since
Plaintiffs’ foster parent license is not, itself, a constitutionally protected interest, and the statute
does not create a constitutionally protected interest or right, Plaintiffs were not entitled to the
protections of the due process clause.
Pursuant to state law, the DCPP may deny, revoke, or suspend a foster parent license at
any time “for good cause,” including but not limited to, “[a]ny conduct, engaged in or permitted,
which adversely affects or presents a serious hazard to the education, health, safety, general well-
being or physical, emotional and social development of the child.” N.J. Stat. Ann. § 30:4C-27.9.
“Before denying, suspending or revoking a license, the [DCPP] shall give notice to a . . . resource
family parent personally or by mail to the last known address of the resource family parent
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applicant or resource family parent with return receipt requested. The notice shall afford the
resource family parent applicant or resource family parent the opportunity to be heard and to
contest the [DCPP’s] action.” N.J. Stat. Ann. § 30:4C-27.10. Any appeal from the DCPP’s final
decision may be filed in the New Jersey Appellate Division. N.J. Stat. Ann. § 30:4C-27.11. Thus,
the statutory scheme does not establish “substantive predicates” or “mandatory outcomes” as to
the ultimate result of a hearing. Thompson, 490 U.S. at 463. Rather, the statute simply provides
the process by which Plaintiffs may challenge the revocation of their foster parent license. The
mere existence of the state statute prescribing a specific procedure does not create a due process
interest because “[p]rocess is not an end in itself.” Olim, 461 U.S. at 250-51. As the United States
Supreme Court has noted states “may choose to require procedures for reasons other than
protection against deprivation of substantive rights, of course, but in making that choice the State
does not create an independent substantive right.” Id.; see also Steele v. Cicchi, 855 F.3d 494, 508
(3d Cir. 2017) (dismissing Plaintiff’s procedural due process claim premised on correction center’s
failure to abide by disciplinary procedures set forth in the correction center’s manual because
“there is no standalone protected liberty interest in those procedures”); D.O. ex rel. C.O. v. Borden,
804 F. Supp. 2d 210, 220 (D.N.J. 2011) (explaining that “the Constitution does not assure a
plaintiff that he or she will receive the process conceived by a state law or regulation”);
Toolasprashad v. Williams, No. 07-5860, 2009 WL 1228430, at *7 (D.N.J. Apr. 28, 2009) (“The
Due Process Clause does not require the government to follow its own regulations, procedures or
laws if there is no underlying liberty or property interest”). Furthermore, the statutory scheme,
provides Plaintiffs the opportunity to challenge the suspension in the New Jersey Appellate
Division --- a procedure they do not appear to have utilized.
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Similarly, Plaintiffs’ statutory right to be heard regarding the removal of Foster Child 1
does not give rise to a constitutionally protected property or liberty interest. The DCPP possesses
“the discretionary authority to remove a child in placement for a resource family home at any time
with or without the consent of the resource family parent.” N.J. Admin. Code § 3A:17-1.1.
However, the New Jersey Family Court must determine that the DCPP’s placement plan “ensures
the safety and health and serves the best interest of the child.” N.J. Stat. Ann. § 30:4C-51. To that
end, the New Jersey Family Court may schedule hearings to assess the appropriateness of a foster
child’s placement and, if such a hearing is scheduled, notice shall be provided to the child’s foster
parent. See N.J. Stat. Ann. § 30:4C-61(c). Further, the foster parents “shall have a right to be
heard at the hearing, but the caretaker shall not be made a party to the hearing solely on the basis
of the notice and right to be heard.” N.J. Stat. Ann. § 30:4C-61. Thus, New Jersey foster parents
possess a circumscribed, statutory right to be heard during a child placement proceeding.
Again, the statutory scheme does not mandate a specific outcome; it simply outlines the
procedure to be followed when making placement determinations. Moreover, even if Plaintiffs
had been informed of their right to be heard regarding the placement of Foster Child 1, their
participation would have been extremely limited, and the ultimate determination as to the
placement of Foster Child 1 would be left to the discretion of the New Jersey Family Court. As
the Supreme Court has recognized “a benefit is not a protected entitlement if government officials
may grant or deny it in their discretion.” Town of Castle Rock, 545 U.S. at 756. Notably, when
faced with similar due process challenges, other courts have generally held that statutes which
provide foster parents notice and an opportunity to be heard regarding the placement of a foster
child do not give rise to a protected property interest. See Elwell v. Byers, 699 F.3d 1208, 1214
(10th Cir. 2012) (holding that statutory requirements which required notice and an opportunity to
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be heard prior to removal of a foster child “are plainly procedural rather than substantive” because
they do not guarantee a particular outcome.”); Huk v. Cty. of Santa Barbara, 650 F. App’x. 365
(9th Cir. 2016) (finding that although California state law requires “pre-removal notice and a
grievance process for foster parents to contest the removal of a foster child” those laws “do not
entitle foster parents, as a matter of federal constitutional right, to the notice and grievance
procedures required by California law. . . . as there is no entitlement, there is no constitutional
interest to protect with process.”). Ultimately, although Plaintiffs had a statutory right to be heard
regarding both the revocation of their foster parent license and the placement of Foster Child 1,
the procedures provided for by the New Jersey state statutes do not, in and of themselves, create a
constitutionally protected interest. Accordingly, Plaintiffs have failed to allege the deprivation of
an interest protected under the Due Process Clause; thus their procedural due process claims are
dismissed with prejudice.
2. The Equal Protection Claim
The Equal Protection Clause of the Fourteenth Amendment commands that no state shall
“deny to any person within its jurisdiction, the equal protection of the laws.” U.S. Const. Amend.
XIV, § 1. To state a claim under the Equal Protection Clause, a plaintiff must show that he received
“different treatment from that received by other individuals similarly situated.” Shuman v. Penn
Manor Sch. Dist., 422 F.3d 141, 151 (3d Cir. 2005). Generally, parties may bring two types of
equal protection claims: class of one claims and selective enforcement claims. See Patterson v.
Strippoli, 639 F. App'x 137, 142 (3d Cir. 2016). Both theories require a plaintiff to demonstrate
that he or she was treated differently from similarly situated individuals. Id. A selective
enforcement claim requires a plaintiff to demonstrate that the different treatment was the result of
an “unjustifiable standard” such as race, or religion or in order to prevent an individual from
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exercising a fundamental right. Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). In
contrast, a “class of one” claim requires the plaintiff to sufficiently allege that he or she “ ‘has been
intentionally treated differently from others similarly situated and that there is no rational basis for
the difference in treatment.’ ” Zitter v. Petruccelli, 744 F. App’x 90, 97 (3d Cir. 2018)(quoting
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).
Although Plaintiffs have not specifically identified which theory underlies their Equal
Protection claim, Plaintiffs allege that they were subject to different treatment as a result of their
religious beliefs, which amounts to a selective enforcement claim. However, that claim fails as
Plaintiffs have not alleged that the DCPP treated similarly situated foster parents, who did not
share their religious beliefs, differently than Plaintiffs. Plaintiffs’ Complaint merely summarily
alleges that Plaintiffs were denied equal protection of the law. Their opposition brief provides no
further clarity, but simply argues that they were subject to “governmental discrimination because
of their [religious] beliefs.” Pl. Br. at 9. Because Plaintiffs have not identified any comparable or
similarly situated individuals who were treated differently, Plaintiffs’ equal protection claim fails
to state a claim. See Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008) (“An
essential element of a claim of selective treatment under the Equal Protection Clause is that the
comparable parties were similarly situated. Persons are similarly situated under the Equal
Protection Clause when they are alike in all relevant aspects.”); Bradley v. United States, 299 F.3d
197, 206 (3d Cir. 2002) (explaining that differential treatment may be demonstrated “by naming
similarly situated members of an unprotected class who were not selected for the same search or,
in some cases, by submitting statistical evidence of bias.”).
Accordingly, Plaintiffs’ Equal Protection claim against Individual Defendants is dismissed
without prejudice.
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iii. Plaintiffs’ First Amendment Claims
Plaintiffs allege that they were discriminated against on the basis of religion in violation of
their First Amendment rights. Pl. Br. 7. Again, Plaintiffs’ Complaint fails to elucidate the precise
nature of the alleged First Amendment violation, or address the specific elements; however,
Plaintiffs allege that they are “devout Christians who hold to traditional values and beliefs about
family, marriage and sex,” Compl. ¶¶1,8, and that the “[t]he only apparent basis for suspending
Plaintiffs as Foster Parents and for the removal of Foster Child 1 from Plaintiffs home was because
of the Plaintiffs’ religious belief that homosexuality is a sin,” Compl., ¶36. Those factual
underpinnings suggest that Plaintiffs are alleging retaliatory conduct by the DCPP employees.
To plead a retaliation claim under the First Amendment, a plaintiff must allege “(1)
constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary
firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally
protected conduct and the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir.
2006) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)); accord Falco v. Zimmer, 767
F. App’x 288, 310 (3d Cir. 2019) (distinguishing between First Amendment retaliation claims by
public employees and those by private individuals). “[T]he key question in determining whether
a cognizable First Amendment claim has been stated is whether ‘the alleged retaliatory conduct
was sufficient to deter a person of ordinary firmness from exercising his First Amendment rights.’”
McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (quoting Suppan v. Dadonna, 203 F.3d 228, 235
(3d Cir. 2000)).
Plaintiffs allege that both the removal of Foster Child 1 and the revocation of their foster
parent license were discriminatory actions taken by the Individual Defendants because of
Plaintiffs’ religious beliefs. As previously noted, Plaintiffs’ Complaint does not specifically
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address any of the specific elements of a First Amendment claim; however, Plaintiffs allege that
the removal of Foster Child 1 was based on Plaintiffs’ religious belief regarding homosexuality.
While Plaintiffs paint the constitutionally protected conduct with a broad brush, the facts, as
alleged, suggest, two possible theories of retaliation: Plaintiffs were retaliated against for simply
holding the religious belief that homosexuality is a sin and/or Plaintiffs were retaliated against for
sharing their religious beliefs with Foster Child 1 while she resided in their home. Neither theory,
as currently alleged, clearly presents a viable claim of First Amendment retaliation.
To the extent Plaintiffs allege that the constitutionally protected conduct in which they
engaged is having held a particular religious belief, that clearly constitutes “constitutionally
protected conduct.” Emp’t Div. v. Smith, 494 U.S. 872, 877 (1990)(“The free exercise of religion
means, first and foremost, the right to believe and profess whatever religious doctrine one
desires”); Cantwell v. Connecticut, 310 U.S. 296, 303–04 (1940)(“The Free Exercise Clause
“embraces two concepts,—freedom to believe and freedom to act. The first is absolute[.]”). Thus,
Plaintiffs have arguably satisfied the first element. However, Plaintiffs have not demonstrated the
requisite causal connection between their religious beliefs and the adverse actions they suffered.
In order to establish a causal connection, “the plaintiff usually must allege one of two things: (1)
an unusually suggestive time proximity between the protected activity and the allegedly retaliatory
action; or (2) a pattern of antagonism coupled with timing to establish a causal link.” DeFranco v.
Wolfe, 387 F. App'x 147, 155 (3d Cir. 2010) (citing Luren W. ex rel. Jean W. v. DeFlaminis, 480
F.3d 259, 267 (3d Cir. 2007)). In the absence of such an allegation, “the plaintiff must show that
from the ‘evidence gleaned from the record as a whole’ the trier of fact should infer
causation.” DeFlaminis, 480 F.3d at 267 (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271,
281 (3d Cir.2000)). As the Third Circuit has explained, at the motion to dismiss phase, the plaintiff
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must only allege some evidence, direct or circumstantial, of this element that is “enough to raise a
right to relief above the speculative level.” Falco, 767 F. App’x at 310 (quoting Twombly, 550
U.S. at 555). However, Third Circuit has also cautioned that “[a] court must be diligent in enforcing
these causation requirements because otherwise a public actor cognizant of the possibility that
litigation might be filed against him [or her], particularly in his [or her] individual capacity, could
be chilled from taking action that he [or she]deemed appropriate and, in fact, was appropriate.” Id.
Here, Plaintiffs have not pled evidence of a causal link between Plaintiffs beliefs and the alleged
retaliatory conduct.
The order of events, as currently pled, belies Plaintiffs’ position that the Individual
Defendants’ actions were in retaliation for Plaintiffs’ religious beliefs. Plaintiffs Complaint alleges
that in December 2017, the foster parents of Foster Child 1’s siblings were informed that the
potential adoptive parents were a same-sex couple, yet when Plaintiffs inquired about the potential
adoptive family, Defendants Higgins and Epperly claimed not to know any information about the
potential adoptive family. Thus, Plaintiffs factual allegations suggest that the Individual
Defendants were aware of Plaintiffs’ religious beliefs regarding homosexuality, as early as
December 2017. However, the alleged retaliatory actions – the removal of Foster Child 1 and the
suspension of Plaintiffs’ foster parent license – did not occur until July 2018, seven months later. 8
Seven months is not “unusually suggestive.” Falco, 767 F. App'x at 314 (finding close temporal
proximity where there were two instances of protected activity and retaliatory conduct, with nine
months between first instance of protected activity and retaliatory conduct and one month between
8
Plaintiffs allegedly did not discover the suspension of their foster parent license until October
12, 2018. It is unclear at precisely what point in time Plaintiffs’ license was suspended; however
Foster Child 1 resided with them until July3, 2018 – ostensibly, Plaintiffs were still licensed to act
as foster parents until that date.
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second instance of protected activity and allege retaliatory conduct); Thomas v. Town of
Hammonton, 351 F.3d 108, 114 (3d Cir. 2003)(finding lack of causal connection for First
Amendment retaliation claim where three weeks passed between protected conduct, filing of
sexual harassment complaint, and retaliatory action, Plaintiff’s termination); Jalil v. Avdel Corp.,
873 F.2d 701, 708 (3d Cir. 1989)(finding unusually suggestive temporal proximity where two days
passed between the protected activity and the alleged retaliation).
Although “timing plus other evidence” may be sufficient to establish causation “where the
temporal proximity is not so close as to be ‘unduly suggestive,’” Plaintiffs have not alleged any
facts from which a fact finder could reasonably discern that the Individual Defendants acted out
of hostility towards Plaintiffs’ religious beliefs. Farrell, 206 F.3d at 280. Plaintiffs’ Complaint
identifies various instances in which the DCPP employees questioned Foster Child 1 about her
beliefs. Notably, DCPP is required by regulation to “work with the resource parent to provide the
child in placement with reasonable opportunities to attend religious activities and services in
accordance with the child's preference and the wishes of the child's own parents.” N.J. Admin.
Code § 3A:14-4.1(a). Defendants’ questioning of Foster Child 1 regarding her religious beliefs
was appropriate in light of the DCPP’s regulatory obligations, and the imminent possibility that
Foster Child 1 might be adopted by a same-sex couple. Plaintiffs identify only one occasion on
which the Individual Defendants inquired about Plaintiffs’ religious beliefs, and in that respect,
the inquiry appears to have been a limited one in which the Individual Defendants queried whether
Plaintiffs would “reject Foster child 1 if she ever decided to explore her sexuality” and “sought
assurance from the Plaintiffs that would not be the case.” Compl. ¶29. Such questioning is not
indicative of hostility towards Plaintiffs’ particular religious beliefs, but rather, the Individual
Defendants’ exercise of their administrative functions as employees of the entity prescribed with
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the duty of safeguarding Foster Child 1’s well-being. In light of the temporal chasm between the
Individual Defendants discovery of Plaintiffs’ religious beliefs and the alleged retaliatory conduct,
and the lack of other circumstantial evidence from which causation could be inferred, Plaintiffs
fail to state a claim premised on retaliation for their religious beliefs.
Furthermore, to the extent the alleged right at issue is more narrowly construed as the right
to share their religious beliefs with Foster Child 1 while she was residing in their home, it is unclear
whether such conduct is constitutionally protected. Although Plaintiffs have an absolute right to
practice whatever religious beliefs they choose, their right to free exercise does not, necessarily,
permit them to engage in religious practice and share their beliefs with Foster Child 1, who was
not Plaintiffs’ adoptive child and Plaintiffs were not her legal guardian. Regardless, Plaintiffs have
not clearly pled such a theory nor has either party adequately discussed it. Ultimately, Plaintiffs’
have not pled their factual allegations with adequate specificity to properly apprise Defendants of
the basis of their First Amendment retaliation claim, particularly since Plaintiffs have not specified
the nature of the constitutionally protected conduct. Accordingly, Plaintiffs’ First Amendment
retaliation claim is dismissed without prejudice.
iv. Civil Rights Conspiracy, 42 U.S.C. §1985
Plaintiffs allege that the Individual Defendants conspired for the purpose of denying
Plaintiffs’ First, Fourteenth, and Fifth Amendment rights. In order to assert a violation of Section
1985, a plaintiff must allege: “(1) a conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges
and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a
person is injured in his person or property or deprived of any right or privilege of a citizen of the
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United States.” Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006) (quoting United Bhd.
of Carpenters & Joiners v. Scott, 463 U.S. 825, 828–29 (1983)).
Plaintiffs’ Section 1985 conspiracy claim fails, as well. To the extent Plaintiffs’ 1985 claim
is premised on the same factual underpinnings as their Equal Protection claim, the Section 1985
claim fails for similar reasons. Plaintiffs have not sufficiently alleged that they were treated
differently than any comparable or similarly situated individuals. Plaintiffs’ “mere conclusory
allegations of deprivations of constitutional rights are insufficient to state a § 1985(3) claim.”
Carpenter v. Ashby, 351 F. App’x 684, 687 (3d Cir. 2009) (citing Bray v. Alexandria Women’s
Health Clinic, 506 U.S. 263, 267-68 (1993)).
Furthermore, Plaintiffs have not alleged any facts suggesting an agreement or concerted
action amongst the Individual Defendants. See Startzell, 533 F.3d at 205 (“To constitute a
conspiracy, there must be a ‘meeting of the minds.’ ” (quoting Adickes v. S.H. Kress & Co., 398
U.S. 144, 158 (1970))); Aulisio v. Chiampi, 765 F. App’x 760, 764 (3d Cir. 2019) (dismissing
conspiracy claim against state prison officials because inmate-prisoner “offered nothing more than
conclusory statements that Defendants conspired to deprive him of his constitutional rights; no
evidence suggests that they agreed, plotted, or even discussed doing so”).
Plaintiffs’ Section 1985 conspiracy claim is dismissed without prejudice.
v. Violation of NJLAD
Plaintiffs have asserted a claim against all Defendants under the New Jersey Law Against
Discrimination (“NJLAD”), N.J. Stat. Ann. § 10:5-12(f), for discrimination in a place of public
accommodation. NJLAD provides that it shall be unlawful: “[f]or any . . . employee of any place
of public accommodation directly or indirectly ... to discriminate against any person in the
furnishing thereof.” N.J. Stat. Ann. § 10:5-12(f)(1).
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The threshold issue at this juncture is whether the DCPP constitutes a place of
public accommodation. The NJLAD provides a non-exhaustive list of places of public
accommodation:
A “place of public accommodation” shall include, but not be limited

to: any tavern, roadhouse, hotel, motel, trailer camp, summer camp,
day camp, or resort camp, whether for entertainment of transient
guests or accommodation of those seeking health, recreation, or rest;
any producer, manufacturer, wholesaler, distributor, retail shop,
store, establishment, or concession dealing with goods or services
of any kind; any restaurant, eating house, or place where food is sold
for consumption on the premises; any place maintained for the sale
of ice cream, ice and fruit preparations or their derivatives, soda
water or confections, or where any beverages of any kind are retailed
for consumption on the premises; any garage, any public
conveyance operated on land or water or in the air or any stations
and terminals thereof; any bathhouse, boardwalk, or seashore
accommodation; any auditorium, meeting place, or hall; any theatre,
motion-picture house, music hall, roof garden, skating rink,
swimming pool, amusement and recreation park, fair, bowling alley,
gymnasium, shooting gallery, billiard and pool parlor, or other place
of amusement; any comfort station; any dispensary, clinic, or
hospital; any public library; and any kindergarten, primary and
secondary school, trade or business school, high school, academy,
college and university, or any educational institution under the
supervision of the State Board of Education or the Commissioner of
Education of the State of New Jersey. Nothing herein contained
shall be construed to include or to apply to any institution, bona fide
club, or place of accommodation, which is in its nature distinctly
private; nor shall anything herein contained apply to any educational
facility operated or maintained by a bona fide religious or sectarian
institution, and the right of a natural parent or one in loco parentis
to direct the education and upbringing of a child under his control is
hereby affirmed; nor shall anything herein contained be construed
to bar any private secondary or post-secondary school from using in
good faith criteria other than race, creed, color, national origin,
ancestry, gender identity, or expression or affectional or sexual
orientation in the admission of students.
N.J. Stat. Ann. § 10:5-5.
There is no dispute that the DCPP is not one of the enumerated places of public
accommodation. Nonetheless, Plaintiffs contend that the New Jersey Appellate Division has
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previously held that government agencies are places of public accommodation under the NJLAD.
Pl. Br. at 11 (citing Thomas v. Cty of Camden, 902 A.2d 327 (App. Div. 2006)). In response to
Plaintiffs’ reliance on Thomas, Defendants urge this Court to follow the reasoning of the district
court in Doe v. Div. of Youth & Family Servs., 148 F. Supp. 2d 462 (D.N.J. 2001), and conclude
that the DCPP is not a place of public accommodation. Def. Reply Br. at 10. Further, Defendants
contend that even if the DCPP were a place of public accommodation, Plaintiffs have not alleged
a nexus between Plaintiffs’ religious beliefs and the DCPP’s decision to revoke Plaintiff’s foster
parent license or the removal of Foster Child 1. Def. Reply. Br. at 12.
In ascertaining whether a non-listed place constitutes a public accommodation, both New
Jersey State courts and courts of this Districts look to “whether the entity engages in broad public
solicitation, maintains close relationships with the government or other public accommodations,
or whether it is similar to enumerated or other previously recognized public accommodations.”
Dale v. Boy Scouts of Am., 734 A.2d 1196, 1210 (N.J. 1999), rev’d on other grounds, 530 U.S.
640 (2000); Doe, 148 F. Supp 2d 462 (analyzing whether DYFS is similar to other statutorily
enumerated places of public accommodation).
In Doe v. Div. of Youth & Family Servs., 148 F. Supp. 2d 462, 496 (D.N.J. 2001), the court
assessed whether the Division of Youth and Family Services, the DCPP’s predecessor, constituted
a place of public accommodation under NJLAD. Looking first to the statute, the court in Doe
noted that “[a] brief review of the listed entities leads to the inescapable conclusion that none of
the listed entities even remotely resemble DYFS or any other State agency” and explained that if
the “the legislature intended to include State agencies within NJLAD's public accommodation
provision, it would have included at least one term reflecting that intent.” Id. at 496. Further, the
court found that DYFS did not constitute a place of public accommodation under the “broad
34
DA34
solicitation test” because “[i]t cannot be said that a State child welfare agency charged with
enforcing anti-child abuse laws broadly solicits the public to partake in its services.” Id. at 495.
Subsequent to the district court’s decision in Doe, the New Jersey Appellate Division has
addressed whether other state entities are places of public accommodation within the scope of
NJLAD. See Ptaszynski v. Uwaneme, 853 A.2d 288, 291, 295–97 (N.J. App. Div. 2004) (holding
that “a municipal police department and the individual officers qualify as a ‘place of public
accommodation’ to support an LAD claim . . . . As a public entity, by its very nature a police force
is a place of public accommodation.”); Thomas v. Cnty. of Camden, 902 A.2d 327, 332–334 (N.J.
App. Div. 2006) (holding that the County of Camden and its executive units are “places of public
accommodation” for purposes of the NJLAD).
In Thomas, the Appellate Division was faced with the issue of whether the Camden County
Communications Center (CCCC), a dispatch agency for police, fire and emergency medical
services, constituted a place of public accommodation. Thomas, 902 A.2d at 333. The court
explained that, in its view, it was not “required to analyze the extent of public solicitation or the
closeness of the relationship with government simply because the Camden defendants are public
entities and, by their very nature, constitute a place of public accommodation.” Id. The court
rejected the CCCC’s argument that it could not constitute a public accommodation, in light of the
limited public access to the facility “which is “locked down 24 hours per day, 7 days per week.”
Id. The court reasoned that the “CCCC is a division of the Department of Public Safety, an
executive unit of county government” and it would lead “‘to an anomalous result if private
organizations with close ties to government agencies were places of public accommodation
because of those ties, while the government agency itself was not.’” Id. (quoting Ptaszynski, 853
A.2d 297.).
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I am not persuaded that the DCPP constitutes a place of public accommodation. As an
initial matter, this Court is not bound by the Appellate Division’s decisions in Thomas or
Ptaszynski. Importantly, those cases did not specifically address the DCPP and although, the
decisions ostensibly extend the ambit of NJLAD to all governmental entities, I find there is no
indication that the New Jersey Legislature intended NJLAD to extend to governmental entities
such as the DCPP. Notably, while the Appellate Division in Thomas relied on cases involving
public school and police stations in reaching its conclusion, the court also cited Doe for the
proposition that “state agency DYFS was not [a] place of public accommodation because it is not
included on the list of public accommodations and it does not engage in broad public solicitation,”
suggesting that that the decision in Thomas did not extend to DYFS and thus, would not extend to
the DCPP. 902 A.2d at 333.
Regardless, the DCPP inarguably plays a different role in the governmental regime than
entities which provide essential public services, such as police departments or public schools. The
DCPP is an arm of the state government, and it does not provide general services to the public at
large, nor does it engage in “broad public solicitation.” Dale, 734 A.2d at 1210. Rather, it provides
discrete services to a limited subset of the population: children whose safety, permanency, and
well-being are at risk. Thus, I find, consistent with prior decisions of this district, that the DCPP
does not constitute a place of public accommodation. See Doe, 148 F. Supp 2d at 496 ; see
also K.J. ex rel. Lowry v. Div. of Youth & Family Servs., 363 F. Supp. 2d 728, 750 (D.N.J.
2005)(holding that the Division of Youth and Family Services, is not a place of public
accommodation because “[t]he definition of a place of public accommodation is not so broad as to
include the services provided by a state agency within the meaning of public accommodation.
Instead it refers to facilities maintained for the use of the general public.”).
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Accordingly, Plaintiff’s NJLAD claims against Defendants is dismissed with prejudice.
C. Qualified Immunity
Government officials enjoy qualified immunity so long as “their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir. 1997); Mammaro v. N.J. Div. of Child
Protection & Permanency, 814 F.3d 164, 168-169 (3d Cir. 2016).
The Supreme Court has established a two-part test for determining whether a state actor is
entitled to a defense of qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001). This test
asks “(1) whether the facts alleged by the plaintiff show the violation of a constitutional right; and
(2) whether the right at issue was clearly established at the time of the alleged misconduct.” James
v. City of Wilkes Barre, 700 F.3d 675, 679 (3d Cir. 2012) (citing Saucier, 533 U.S. at 201).
Because Plaintiffs have failed to state a claim as to a violation of their constitutional or
statutory rights, I need not address whether the Individual Defendants are entitled to qualified
Immunity on any of Plaintiffs’ claims.
IV. CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss is GRANTED. Plaintiffs’
NJLAD claim against all Defendants and Plaintiffs’ NJCRA, Section 1985, Section 1983 claims
against the State, the DCPP, and the DCPP employees acting in their official capacity are
dismissed with prejudice. Plaintiffs’ NJCRA, Section 1983, and Section 1985 claims against the
Individual Defendants, premised on an alleged violation of the Due Process Clause of the
Fourteenth Amendment are dismissed with prejudice. Plaintiffs’ NJCRA claim, Section 1983,
and Section 1985 claims against the Individual Defendants, premised on an alleged violation of
the Equal Protection Clause of the Fourteenth Amendment, and violations of the First Amendment,
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are dismissed without prejudice, and Plaintiff may file an amended complaint within thirty (30)
days consistent with this Opinion.
Date: September 26, 2019

/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
U.S. Chief District Judge
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____________________________________
:
LASCHE, :
Plaintiffs, :
: ORDER
vs. :
:
:
Defendants. :
____________________________________:
THIS MATTER having been opened to the Court by Robert McGuire, Esq., counsel for
Defendants the State of New Jersey, the New Jersey Division of Child Protection and Permanency
(the “DCPP”), DCPP employees Kyle Higgins, Katie Epperly, Mary Lippencot, and Janelle Clark
(“Individual Defendants”), in their official and individual capacities (collectively, “Defendants”)
on a Motion to Dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6); it appearing
that Plaintiffs Michael and Jennifer Lasche, through their counsel, Michael P. Laffey, Esq., oppose
the motion; the Court having considered the submissions of the parties without oral argument,
pursuant to Fed. R. Civ. P. 78; for the reasons set forth in the Opinion filed on this date, and for
good cause shown,
IT IS on this 26th day of September, 2019,
ORDERED that Defendants’ Motion to Dismiss [ECF No. 6] is GRANTED;
ORDERED that Plaintiffs’ NJLAD claim against all Defendants is dismissed with
prejudice; it is further
DA39
ORDERED that Plaintiffs’ NJCRA, Section 1983, and Section 1985 claims against the
State, the DCPP, and the DCPP employees, in their official capacities, are dismissed with
prejudice; and it is further
ORDERED that the State and the DCPP are dismissed from the case; and it is further
ORDERED that Plaintiffs’ NJCRA, Section 1983, and Section 1985 claims against the
Individual Defendants, in their individual capacities, premised on alleged violations of the
Due Process Clause of the Fourteenth Amendment are dismissed with prejudice; and it is
further
ORDERED that Plaintiffs’ NJCRA claim, Section 1983, and Section 1985 claims against
the Individual Defendants, in their individual capacities, premised on alleged violations of
the Equal Protection Clause of the Fourteenth Amendment, and violations of the First
Amendment, are dismissed without prejudice and Plaintiffs are given leave to amend
their Complaint, consistent with the Opinion accompanying this Order, within thirty (30)
days.

Freda L. Wolfson
DA40
*NOT FOR PUBLICATION*

____________________________________
:
LASCHE, :
Plaintiffs, :
: OPINION
vs. :
:
:
Defendants. :
____________________________________:
WOLFSON, Chief Judge:
Plaintiffs Michael and Jennifer Lasche (collectively, “Plaintiffs”), formerly licensed foster
parents, allege that defendants Kyle Higgins, Katie Epperly, Mary Lippencott, and Janelle Clark
(“Defendants”), who are all employees of the New Jersey Division of Child Protection and
Permanency (the “DCPP”)1, violated their constitutional rights when the DCPP removed a foster
child from their home and suspended Plaintiffs’ foster parent license. In an Opinion dated
September 26, 2019 (“prior Opinion”), I granted Defendants’ motion to dismiss the original
complaint and gave Plaintiffs leave to amend their New Jersey Civil Rights Act, Section 1983, and
Section 1985 claims premised on alleged violations of the First Amendment and the Equal
Protection clause of the Fourteenth Amendment. Plaintiffs filed an Amended Complaint asserting
1
Plaintiffs’ Amended Complaint does not specifically identify whether their claims are
brought against Defendants in their official or individual capacities, however, I previously found
that Defendants were entitled to sovereign immunity and dismissed the official capacity claims
against them with prejudice. See Prior Opinion at 11-12. Accordingly, the Court presumes these
claims are brought solely against the DCPP employees acting in their individual capacities.
1
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claims under Sections 1983 and 1985. Now, Defendants, once again, move to dismiss Plaintiffs’
claims under Federal Rule of Civil Procedure 12(b)(1) and (6).2 Plaintiffs oppose the motion.
For the reasons set forth below, Defendant’s motion is GRANTED.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
For the purposes of this motion, the relevant facts are derived from Plaintiffs’ Amended
Complaint and assumed as true.
In September 2017, the DCPP contacted Plaintiffs, who were then-licensed foster parents
and “devout Christians who hold to traditional values and beliefs about family, marriage and sex”
about potential foster children. ECF No., 16, Am. Compl. (“AC”) ¶¶1,8. The DCPP informed
Plaintiffs that two sisters, ages 13 (“Foster Child 1”) and 10 (“Foster Child 2”), were in need of a
foster home placement and asked if Plaintiffs would be willing to care for them. Id. ¶8. Plaintiffs,
experienced foster parents, agreed to foster the two girls. Id. ¶¶1,8.
Kyle Higgins (“Higgins”), the DCPP case worker assigned to the foster children, informed
Plaintiffs that the girls’ cases were proceeding toward adoption and that the biological father’s
rights had already been terminated. Id. ¶¶3,9. Throughout October and November 2017, Higgins
allegedly advised Plaintiffs that the cases were still moving toward adoption and that they would
be given “first choice” to adopt the girls. Id. ¶10. During that time period, the biological mother
surrendered her rights and the children became eligible for adoption, and Plaintiffs were allegedly
informed that they were still in consideration. Id. at ¶¶11-12. However, in late December 2017,
Higgins informed Plaintiffs that a family in Illinois was interested in adopting Foster Child 1 and
2, as well as their three siblings. Id. at ¶13. When Plaintiffs and the children asked Higgins and
2
Although Defendants purportedly move to dismiss under both Rules 12(b)(1) and (6),
Defendants’ briefing does not proffer any arguments regarding dismissal based on a lack of subject
matter jurisdiction.
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her supervisor Katie Epperly (“Epperly”) for additional information about the prospective
adoptees, Higgins and Epperly purportedly claimed not to know the answers to the Lasches’
questions. Id. at ¶14.
Thereafter, during a conversation with the other foster parents of Foster Child 1 and 2’s
siblings, the Lasches learned that the potential adoptees “were two wealthy gay men with lots of
family around to support them and the adoption.” Id. Plaintiffs were “baffled” as to why the
DCPP withheld that information from them, but chose to share it with the other foster parents. Id.
A few days later, Higgins visited the Lasches’ home and allegedly questioned Foster Child 1 about
her religious beliefs concerning homosexuality and asked if she would change her religious beliefs
if she were living with another family. Id. ¶15.
In April 2018, Foster Child 2 was removed from Plaintiffs’ home “for confidential reasons
unique to Foster Child 2,” pursuant to an agreement between Plaintiffs and the DCPP. Id. at ¶16.
On May 22, 2018, Mrs. Lasche met with Higgins and Foster Child 1’s therapist. Id. at ¶17. At that
meeting, Mrs. Lasche, Higgins, and the therapist agreed not to discuss adoption with Foster Child
1 for the foreseeable future because it was too soon after Foster Child 2’s removal. Id. They also
discussed the possibility of Foster Child 1 spending additional time with her siblings to determine
if she would like to be adopted by the same family as them, and Mrs. Lasche indicated that she
“was not opposed to letting Foster Child 1 explore that and allowing her to make the decision
without any questions or resentment.” Id. at ¶¶16-17. During that meeting, Higgins indicated that
a court hearing would be held on June 4, 2018, and a judge would decide whether all of the children
should be adopted by their current foster families, or if it would be in the children’s best interest
for the Illinois couple to adopt all five siblings. Id. at ¶18. The morning of the scheduled court
hearing, Plaintiffs purportedly received a text message from Foster Child 1’s Law Guardian
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informing them that the Illinois couple was “off the table” and that a New Jersey family court
judge had ordered psychiatric evaluations of the five children before a permanent placement
decision was made. Id. at ¶19.
Plaintiffs contend that after the adoption with the Illinois couple fell through, “the attitude
of the case worker toward the Plaintiffs’ radically changed.” Id. Thereafter, Higgins allegedly
contacted Plaintiffs to discuss transitioning Foster Child 1 to another foster home, where her
younger brother resided, and Mrs. Lasche expressed confusion, because she was under the
impression that since the Illinois family was no longer pursuing the adoption, the DCPP’s intention
was to allow each of the siblings to be adopted by their then- foster families. Id. at ¶21. To obtain
more information, Mrs. Lasche contacted Foster Child 1’s Law Guardian, and the Law Guardian
was allegedly surprised and offered to investigate the situation. Id. at ¶22.
A few weeks later, on or about June 31, 2018, Foster Child 1 came home from a regularly
scheduled therapy session and informed Plaintiffs that she was upset because her “therapist kept
bringing up religion and told her she should not feel pressured to follow her foster family’s
religious beliefs.” Id. at ¶20. On another occasion, while Foster Child 1’s therapist was at
Plaintiffs’ home for a therapy session, Mrs. Lasche asked the therapist why the therapist had
inquired whether Foster Child 1 was “being pressured” to follow Plaintiffs’ religion. Id. at ¶23.
Initially, the therapist allegedly responded that “it was normal to discuss how people have different
beliefs, ethics, religion, etc.” Id. After further questioning from Mrs. Lasche, however, the
therapist eventually divulged that Higgins had called before the session and mentioned the
potential adoption with the Illinois counsel and they had discussed Plaintiffs’ “ideas about same-
sex couples.” Id. Higgins also purportedly asked the therapist to discuss the possibility of
relocating Foster Child 1 to another foster home with her brothers. Id. Plaintiffs aver that at that
DA44
point, “Higgins conduct and the [c]onduct of the other Defendants became even more hostile.” Id.
at ¶24.
On another occasion, on or about June 21, 2018, Higgins picked up Foster Child 1,
ostensibly for the purpose of visiting one of her siblings. Id. at ¶25. Plaintiffs allege that it was
“very rare” for Higgins to transport Foster Child 1 to such visits. Id. While on the way to the visit,
Higgins allegedly stopped at a Dunkin Donuts with Foster Child 1 and informed her that Plaintiffs
would not be able to “meet her needs.” Id. at ¶25. Plaintiffs assert that during the visit, Higgins
“interrogated Foster Child 1 about her religious beliefs” and “lied to her in an effort to intimidate
her into agreeing that she did not want to be adopted by Plaintiffs.” Id. at ¶¶2-26.
Upon returning from the visit, Higgins met with Plaintiffs and informed them that the
DCPP intended to meet with them to “work with” Plaintiffs in order to reach a result that was in
Foster Child 1’s best interest. Id. at ¶28. When Plaintiffs inquired about the purpose of the
meeting, they were allegedly informed by Epperly that the DCPP “was concerned that both Foster
Child 1 and Foster Child 2 indicated that same-sex relationships were against their religion,” a
belief which the DCPP regarded as coming from Plaintiffs. Id. at ¶29. In that regard, Plaintiffs
acknowledge that they took their foster children to church and “freely shared their religious beliefs
with the children,” but believe “the Foster Children had picked up their religious beliefs regarding
homosexuality prior to coming to Plaintiffs’ home.” Id. at ¶32.
On Friday, June 29, 2018, the Lasches, their attorney, an attorney for the State of New
Jersey, Higgins, Epperly, Epperly’s supervisor Mary Lippencott, Janelle Clark, and one or two
other DCPP employees whom Plaintiffs did not identify, attended a meeting at the DCPP’s
Monmouth County Office. Id. at ¶33. During the meeting, the DCPP representatives allegedly
expressed concern about Plaintiffs’ belief that homosexuality is a sin and its potential impact on
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Foster Child 1. Id. at ¶34. The DCPP officials allegedly discussed the possibility that Plaintiffs
might reject Foster Child 1 if she “ever decided to explore her sexuality” and sought assurances to
the contrary from Plaintiffs. Id. Plaintiffs assert that one of the Defendants purportedly expressed
the belief that in order to avoid possible future harm, Foster Child 1 might need therapy to address
her belief that homosexuality was a sin. Id. Plaintiffs allege that “[a]lmost the entire meeting was
about Plaintiffs’ belief that homosexuality was a sin.” Id.
A few days later, on July 2, 2018, a hearing was held before a New Jersey family court
judge, and the DCPP sought to remove Foster Child 1 from Plaintiffs’ home. Id. at ¶35. At the
hearing, Foster Child 1’s Law Guardian purportedly objected to the removal. Id. Nonetheless, the
next day, presumably pursuant to a court order, the DCPP removed Foster Child 1 from Plaintiffs’
home, and placed her in the same foster home as Foster Child 2. Id. at ¶38. Plaintiffs allege that
a therapist had previously advised the DCPP that it was in Foster Child 1’s best interest to be
adopted alone, rather than with her siblings, due to trauma she experienced while the children were
residing with their biological parents. Id. at ¶39. Plaintiffs contend that, despite that advice, the
DCPP sought to have Foster Child 1 adopted along with her siblings due to Defendants’ “hostility
to Plaintiffs’ religious beliefs.” Id. Additionally, Plaintiffs assert that they were not given notice
that they had a right to be heard at the meeting, and, in their view, the lack of notice is further
indicative of bad faith and hostility by Defendants. Id. at ¶36.
On October 12, 2018, a DCPP representative visited Plaintiffs’ home in order to conduct a
yearly inspection which was necessary for Plaintiffs to renew their foster parent license. Id. at
¶41. The representative asked Plaintiffs if they knew that their foster parent license had been
suspended by the Monmouth County DCPP office, and Plaintiffs stated that they were unaware of
the suspension. Id. The representative allegedly informed Plaintiffs that they should have been
DA46
notified of the suspension and the bases for the suspension. Id. Plaintiffs allege that the only
viable reason for the suspension “was Defendants hostility to Plaintiffs’ religious belief that
homosexuality is a sin.” Id. at ¶42.
On November 19, 2018, Plaintiffs filed a four-count complaint against Defendants in New
Jersey state court, alleging violations of the New Jersey Law Against Discrimination (“NJLAD”),
the New Jersey Civil Rights Act (“NJCRA”), 42 U.S.C §1983, and 42 U.S.C §1985. On December
24, 2018, Defendants removed the matter to this Court and thereafter, moved to dismiss Plaintiffs’
Complaint. In my prior Opinion, I dismissed the State of New Jersey and the DCPP from the case,
and dismissed all the claims against Defendants in their official capacities and Plaintiffs’ NJLAD
claim with prejudice. In addition, I dismissed Plaintiffs’ Equal Protection and First Amendment
claims without prejudice. On October 24, 2019, Plaintiff filed an Amended Complaint re-asserting
the Equal Protection and First Amendment claims under Section 1983 and their Section 1985
conspiracy claim. On November 21, 2019, Defendants filed the instant Motion to Dismiss.
II. STANDARD OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(6)
In reviewing a motion to dismiss for failure to state a claim upon which relief can be
granted, pursuant to Federal Rule of Civil Procedure 12(b)(6), “courts accept all factual allegations
as true, construe the complaint in the light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (internal quotation marks and citation
omitted). While Federal Rule of Civil Procedure 8(a)6 does not require that a complaint contain
detailed factual allegations, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment]
to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of
DA47
a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation
omitted). Thus, to survive a Rule 12(b)(6) motion to dismiss, the Complaint must contain
sufficient factual allegations to raise a plaintiff’s right to relief above the speculative level, so that
a claim “is plausible on its face.” Id. at 570; Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d
Cir. 2008). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
To determine whether a plaintiff has met the facial plausibility standard mandated by
Twombly and Iqbal, courts within this Circuit engage in a three-step progression. Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must “outline the elements a
plaintiff must plead to state a claim for relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
Next, the Court “peel[s] away those allegations that are no more than conclusions and thus not
entitled to the assumption of trust. Id. Finally, where “there are well-pleaded factual allegations,
the court should assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.” Iqbal, 556 U.S. at 679.
III. ANALYSIS
A. The Equal Protection Claim
The Equal Protection Clause of the Fourteenth Amendment commands that no state shall
“deny to any person within its jurisdiction, the equal protection of the laws.” U.S. Const. Amend.
XIV, § 1. In other words, “[t]he Equal Protection Clause requires that all people similarly situated
be treated alike.” Whitehead v. Wetzel, 720 F. App’x 657, 662 (3d Cir. 2017) (per curiam) (citing
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Thus, to state a claim under
the Equal Protection Clause, Plaintiffs must show that they received “different treatment from that
DA48
received by other individuals similarly situated.” Shuman v. Penn Manor Sch. Dist., 422 F.3d 141,
151 (3d Cir. 2005); Keenan v. City of Philadelphia, 983 F.2d 459, 465 (3d Cir. 1992) (“To bring
a successful claim under 42 U.S.C. § 1983 for a denial of equal protection, plaintiffs must prove
the existence of purposeful discrimination. They must demonstrate that they received different
treatment from that received by other individuals similarly situated.”). Furthermore, Plaintiffs
must allege “discriminatory intent or purpose.” Rittenhouse Entm’t, Inc. v. City of Wilkes-Barre,
782 F. App’x 148, 154 (3d Cir. 2019) (quoting City of Cuyahoga Falls, Ohio v. Buckeye Cmty.
Hope Found., 538 U.S. 188, 195 (2003)).
Here, Defendants argue that the Amended Complaint does not remedy the previously
identified deficiencies in Plaintiffs’ Equal Protection Claim. Def. Br. at 18- 19. Defendants assert
that Plaintiffs have only proffered “bald assertions” that they were discriminated against on the
basis of their religious beliefs, and have not alleged any facts sufficient to establish that they were
treated differently than similarly situated foster parents. Id. at 19.
In my prior Opinion, I explained that Plaintiffs’ Equal Protection claim failed because
“Plaintiffs have not alleged that the DCPP treated similarly situated foster parents, who did not
share their religious beliefs, differently than Plaintiffs. Plaintiffs’ Complaint merely summarily
alleges that Plaintiffs were denied equal protection of the law.” Prior Opinion at 26. The Amended
Complaint is similarly deficient. In their Amended Complaint, Plaintiffs assert that “Defendants
have discriminated against [Plaintiffs] on the basis of their religious beliefs and treated them
differently than similarly situated people who do not hold those religious beliefs.” AC. ¶52.
Although I previously directed Plaintiffs to allege facts suggesting that they were treated
differently than similarly situated foster parents, Plaintiffs have not done so. Instead, Plaintiffs
assert in their opposition brief that
DA49
they could name people who did not hold the same religious beliefs
as they do, that when the Court ordered an evaluation for adoption
they were actually evaluated and allowed to proceed with the
adoption. They could also name people who don’t hold the same
religious beliefs as they do who were not suspended without being
advised why they were suspended or even notified that they were
suspended as required by the rules. In short they could specifically
name every other foster parent they have ever personally known . .
. but in the context of this particular case that would add nothing to
Plaintiffs’ claim.
ECF No. 22, Pl. Br. at 12. I disagree. First, these additional factual allegations are not included
in the Amended Complaint which is, itself, fatal to Plaintiffs’ claims. See Commonwealth of Pa.
ex rel. Zimmerman v. PepsiCo, 836 F.2d 173, 181 (3d Cir. 1988) (“[I]t is axiomatic that the
complaint may not be amended by the briefs in opposition to the motion to dismiss.”); Gundlach
v. Reinstein, 924 F. Supp. 684, 688 n.4 (E.D. Pa. 1996) (refusing to consider factual allegation that
was not in complaint but appeared for the first time in plaintiff’s legal memoranda regarding a
12(b)(6) motion). Moreover, even if the types of factual allegations asserted in Plaintiffs’
opposition brief had been incorporated into the Amended Complaint, they would not satisfy
Plaintiffs’ burden of alleging an Equal Protection claim. In order to sustain an equal protection
claim, Plaintiffs must, at the very least, allege specific facts suggesting that they were subject to
“different treatment from that received by other individuals similarly situated.” Shuman, 422 F.3d
at 151. Here, Plaintiffs have not pled any specific instances of differential treatment. Absent
supporting factual allegations, the Court is not required to credit Plaintiffs’ boilerplate and
conclusory assertion that other foster parents were treated in a dissimilar manner. See Young v.
New Sewickley Twp., 160 F. App’x 263, 266 (3d Cir. 2005) (dismissing plaintiff’s equal protection
claim because plaintiff failed to allege any specific instances of other employees being treated in
different matter and plaintiff’s “bald assertion that other police officers were treated in a dissimilar
manner did not provide the defendants with the notice required to frame a responsive pleading to
10
DA50
[plaintiff’s] Equal Protection claim”); Guevara v. Elizabeth Pub. Sch., No. 18-15728, 2019 WL
3244592, at *4 (D.N.J. July 18, 2019) (dismissing plaintiff’s equal protection claim because
“[b]are allegations that the Individual Defendants actively participated and engaged in the
discriminatory conduct, . . . or that the ESD treated other employees not in the protected class
more favorably than Plaintiff. . . without more, are insufficient to state a discrimination claim under
the Equal Protection Clause”(internal citations and quotation marks omitted)); Knox v. Union Twp.
Bd. of Educ., No. 2:13-5875, 2015 WL 769930, at *13 (D.N.J. Feb. 23, 2015) (dismissing claims
of race-based discrimination under the Equal Protection Clause because the plaintiff did “not allege
specific instances of similarly situated employees being treated differently”); Young v. Delaware
Cty. Cmty. Coll., No. 08- 2023, 2008 WL 4347621, at *3 (E.D. Pa. Sept. 22, 2008) (explaining
that “when a plaintiff is alleging that he was treated differently than others outside his class, he
cannot use conclusory, boilerplate language or bald assertion[s] that other [s] ... were treated in a
dissimilar manner to survive dismissal” (internal citations and quotation marks omitted) (alteration
in original)). Ultimately, Plaintiffs’ “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are insufficient to survive a motion to dismiss. Fowler,
578 F.3d at 210 (citing Twombly, 550 U.S. at 570). Accordingly, Plaintiffs’ Equal Protection claim
is dismissed without prejudice.3
B. The First Amendment Retaliation Claim
To plead a retaliation claim under the First Amendment, Plaintiffs must allege “(1)
constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary
3
Furthermore, Plaintiffs have failed to allege that Defendants’ actions were motivated by
discriminatory intent. Rittenhouse Entm’t, Inc. v. City of Wilkes-Barre, 782 F. App’x at 154. For
reasons explained more fully, infra, in the discussion of Plaintiffs’ First Amendment claim,
Plaintiffs have not alleged circumstantial evidence sufficient to raise an inference of
discrimination.
11
DA51
firmness from exercising his [or her] constitutional rights, and (3) a causal link between the
constitutionally protected conduct and the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d
285, 296 (3d Cir. 2006) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)); accord Falco
v. Zimmer, 767 F. App’x 288, 310 (3d Cir. 2019) (distinguishing between First Amendment
retaliation claims by public employees and those by private individuals). In order to establish a
causal connection, “the plaintiff usually must allege one of two things: (1) an unusually suggestive
time proximity between the protected activity and the allegedly retaliatory action; or (2) a pattern
of antagonism coupled with timing to establish a causal link.” DeFranco v. Wolfe, 387 F. App’x
147, 155 (3d Cir. 2010) (citing Luren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.
2007)); see also Ambrose v. Township of Robinson, Pa., 303 F.3d 488, 493 (3d Cir. 2002) (a
plaintiff must “show that his protected activity was a substantial or motivating factor in the alleged
retaliatory action.”). In the absence of such allegations, “the plaintiff must show that from the
‘evidence gleaned from the record as a whole’ the trier of fact should infer causation.” DeFlaminis,
480 F.3d at 267 (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)).
Ultimately, “the key question in determining whether a cognizable First Amendment claim has
been stated is whether ‘the alleged retaliatory conduct was sufficient to deter a person of ordinary
firmness from exercising his [or her] First Amendment rights.’” McKee v. Hart, 436 F.3d 165,
170 (3d Cir. 2006) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)).
Plaintiffs’ Amended Complaint proffers two potential theories of First Amendment
retaliation: Plaintiffs were retaliated against for simply holding the religious belief that
homosexuality is a sin and/or Plaintiffs were retaliated against for sharing their religious beliefs
with Foster Child 1 while she resided in their home. See Am. Compl. ¶¶48-49. I will address the
second theory first.
12
DA52
In my prior Opinion, I explained that to the extent Plaintiffs sought to assert a retaliation
claim based on the alleged right to share their religious beliefs with Foster Child 1 in their home,
it is unclear whether such conduct is constitutionally protected.

Although Plaintiffs have an absolute right to practice whatever
religious beliefs they choose, their right to free exercise does not,
necessarily, permit them to engage in religious practice and share
their beliefs with Foster Child 1, who was not Plaintiffs’ adoptive
child and Plaintiffs were not her legal guardian.
Prior Opinion at 31. On this motion, Plaintiffs have not proffered any legal support for the
proposition that they possessed such a First Amendment right, nor has the Court’s own research
revealed such a right. To the contrary, the Free Exercise clause of the First Amendment
indisputably protects an individual’s right to control the religious upbringing of his or her children.
See Pierce v. Soc’y of Sisters, 268 U.S. 510, 532-535 (1925) (recognizing parents’ rights to send
their children to religious schools); Wisconsin v. Yoder, 406 U.S. 205, 231 (1972) (recognizing
that the Free Exercise clause protects “traditional concepts of parental control over the religious
upbringing and education of their minor children.”). Consistent with the Free Exercise clause,
various federal courts have held that that the state should make some effort to accommodate the
child and parents’ religious needs when making foster care placements. See Pfoltzer v. Fairfax
Cty. Dep’t of Human Dev., 966 F.2d 1443 (4th Cir. 1992) (“With respect to children in foster care,
a state is required to make reasonable efforts to accommodate the parent’s religious preferences.”);
Wilder v. Bernstein, 848 F.2d 1338, 1341–2 (2d Cir. 1988) (“So long as the state makes reasonable
efforts to assure that the religious needs of the children are met during the interval in which the
state assumes parental responsibilities, the free exercise rights of the parents and their children are
adequately observed”); Walker v. Johnson, 891 F.Supp. 1040, 1049 (M.D.Pa.1995) (recognizing
parents’ “limited rights to control the religious upbringing” of a child in foster care). In that regard,
there is no legal support for Plaintiffs’ assertion of a First Amendment right to share their religious
13
DA53
beliefs with their foster child, who was neither their biological child nor their adoptive child. In
fact, finding that foster parents have an unfettered constitutional right to share their religious
beliefs with a foster child would seemingly conflict with the free exercise rights of the foster
children and his or her biological parents. Accordingly, I do not find that Plaintiffs can assert a
First Amendment retaliation claim based on such a theory.
Plaintiffs also assert that they were retaliated against for holding the religious belief that
homosexuality is a sin. In my prior Opinion, I found that, although Plaintiffs clearly alleged
constitutionally protected conduct, they had “not demonstrated the requisite causal connection
between their religious beliefs and the adverse actions they suffered” or “pled evidence of a causal
link between Plaintiffs’ beliefs and the alleged retaliatory conduct.” Prior Opinion at 28-29.
Specifically, I found:
[t]he order of events, as currently pled, belies Plaintiffs’ position that

the Individual Defendants’ actions were in retaliation for Plaintiffs’
religious beliefs. Plaintiffs’ Complaint alleges that in December
2017, the foster parents of Foster Child 1’s siblings were informed
that the potential adoptive parents were a same-sex couple, yet when
Plaintiffs inquired about the potential adoptive family, Defendants
Higgins and Epperly claimed not to know any information about the
potential adoptive family. Thus, Plaintiffs factual allegations
suggest that the Individual Defendants were aware of Plaintiffs’
religious beliefs regarding homosexuality, as early as December
2017. However, the alleged retaliatory actions – the removal of
Foster Child 1 and the suspension of Plaintiffs’ foster parent license
– did not occur until July 2018, seven months later. Seven months
is not “unusually suggestive.” . . . . Although “timing plus other
evidence” may be sufficient to establish causation “where the
temporal proximity is not so close as to be ‘unduly suggestive,’”
Plaintiffs have not alleged any facts from which a fact finder could
reasonably discern that [Defendants] acted out of hostility towards
Plaintiffs’ religious beliefs. . . . Plaintiffs’ Complaint identifies
various instances in which the DCPP employees questioned Foster
Child 1 about her beliefs. Notably, DCPP is required by regulation
to “work with the resource parent to provide the child in placement
with reasonable opportunities to attend religious activities and
14
DA54
services in accordance with the child’s preference and the wishes of

the child's own parents.” N.J. Admin. Code § 3A:14-4.1(a).
Defendants’ questioning of Foster Child 1 regarding her religious
beliefs was appropriate in light of the DCPP’s regulatory
obligations, and the imminent possibility that Foster Child 1 might
be adopted by a same-sex couple. Plaintiffs identify only one
occasion on which [Defendants] inquired about Plaintiffs’ religious
beliefs, and in that respect, the inquiry appears to have been a limited
one in which the Individual Defendants queried whether Plaintiffs
would “reject Foster child 1 if she ever decided to explore her
sexuality” and “sought assurance from the Plaintiffs that would not
be the case.” Compl. ¶29. Such questioning is not indicative of
hostility towards Plaintiffs’ particular religious beliefs, but rather,
the Individual Defendants’ exercise of their administrative functions
as employees of the entity prescribed with the duty of safeguarding
Foster Child 1’s well-being. In light of the temporal chasm between
[Defendants] discovery of Plaintiffs’ religious beliefs and the
alleged retaliatory conduct, and the lack of other circumstantial
evidence from which causation could be inferred, Plaintiffs fail to
state a claim premised on retaliation for their religious beliefs.
Id. at 28-29 (citations omitted). The Amended Complaint does not remedy those deficiencies. I
find, as I did before, that Plaintiffs’ Amended Complaint has not adequately alleged temporal
proximity or any other circumstantial evidence of causation. See Mash v. Twp. of Haverford, No.
06-4479, 2007 WL 2254417, at *8 (E.D. Pa. Aug. 3, 2007), aff’d sub nom, 298 F. App’x 169 (3d
Cir. 2008) (quotations omitted) (dismissing First Amendment retaliation claim when plaintiff did
“not present any evidence demonstrating either an unusually suggestive temporal proximity
between the protected activity and the allegedly retaliatory act” or “a pattern of antagonism
coupled with timing to establish a causal link”).
Here, Plaintiffs assert that the removal of Foster Child 1 in July 2018, and the subsequent
suspension of their foster parent license, were both acts of retaliation spurred by Plaintiffs’
expression of their religious beliefs regarding homosexuality.4 Plaintiff has not established
4
I previously found that Plaintiffs could not assert a procedural due process claim based on
the revocation of their license because their foster parent license is not a constitutionally protected
15
DA55
causation as to either action. On this motion, it appears that Plaintiffs do not argue that there
existed “unusually suggestive temporal proximity” between the DCPP’s discovery of Plaintiffs’
religious beliefs and either adverse action, nor can they reasonably do so. As I noted in my
previous opinion, the seven-month gap between discovering Plaintiffs’ religious views, the
removal of Foster Child, and the suspension of the foster parent license, defeats any finding of
temporal proximity.5 See Prior Opinion at 29-30; see also Rink v. Northeastern Educ. Intermediate
Unit, 717 F. App’x 126, 134 (3d Cir. 2017) (explaining that unusually suggestive temporal
proximity must be “on the order of days or weeks”).
Rather, Plaintiffs argue that Defendants’ hostility toward them was triggered by the
possibility that the Lasches might be viable adoptive parents for Foster Child 1, and thereafter, the
DCPP employees engaged in a pattern of actions demonstrating their hostility toward Plaintiffs’
religious beliefs. Plaintiffs assert that “[t]he first indication that [the DCPP] may have been aware
of the Plaintiffs’ religious beliefs is in late December 2017” when the caseworkers allegedly
concealed that the potential adoptive family was a same sex couple, and that from that point
onward, “[e]ach and every time the Defendants tried to convince [Foster Child 1] to be adopted by
someone else they also raised the issue of Plaintiffs and the child’s religious beliefs about
homosexuality,” ultimately culminating in the late June meeting and the subsequent removal of
Foster Child 1. Pl. Br. at 7. Plaintiffs maintain that the DCPP worker’s comment during the June
property interest. See Prior Opinion at 20-24. While the foster parent license, itself, is not a
constitutionally protected property interest, its revocation could theoretically constitute a
“retaliatory action” within the context of a First Amendment retaliation claim.
5
It is unclear precisely when the suspension of Plaintiffs’ foster parent license came into
effect. Plaintiffs allegedly became aware of the suspension sometime in October 2018, several
months after Foster Child 1 was removed from their care on July 3, 2018. Ostensibly, Plaintiffs
were still licensed to act as foster parents until, at minimum, July 2018.
16
DA56
29, 2018 meeting evidences the DCPP’s animus as it effectively suggested that anyone who shares
Plaintiffs’ beliefs “is suffering from a mental affliction.” Pl. Br. at 7. Further, Plaintiffs contend
that DCPP has never offered an alternative explanation for either the removal of Foster Child 1 or
the suspension of Plaintiffs’ foster parent license and the fact that the DCPP did not follow “normal
procedures” in suspending Plaintiffs’ license is sufficient to establish that Plaintiffs were
discriminated against because of their religious beliefs. Id.
Plaintiffs’ allegations present a close-question regarding causality, nonetheless, I find that
Plaintiffs have failed to allege facts demonstrating “a pattern of antagonism,” or other
circumstantial evidence from which retaliatory or discriminatory motives can be inferred. De
Franco, 387 F. App’x at 155. On this point, the Amended Complaint is largely unchanged; like
in the prior complaint, the only acts of alleged hostility leading up to the alleged acts of retaliation
are the June 21, 2018 meeting between Higgins and Foster Child 1, and the June 29, 2018 meeting
between Plaintiffs, their attorney, an attorney for the State of New Jersey, and the DCPP
employees. From these two incidents – one of which involved a conversation with Foster Child 1
rather than an act of discrimination directed toward Plaintiffs – Plaintiffs seek to infer a
discriminatory intent. However, a plaintiff’s supposition that a defendant’s conduct was motivated
by discriminatory or retaliatory intent is not sufficient to allege a retaliation claim, absent
supporting factual allegations. See Kundratic v. Thomas, 407 F. App’x. 625, 628 (3d Cir. 2011);
Mitchell v. Miller, 884 F. Supp. 2d 334, 359 (W.D. Pa. 2012) (“[t]he issue of causation pertaining
to a First Amendment claim against a particular defendant generally turns on his or her
‘specific intent’ at the time of the alleged retaliatory action). As pled, it appears that in both
instances Defendants were exercising their administrative functions as employees of the entity
17
DA57
prescribed with the duty of safeguarding Foster Child 1’s well-being and attempting to assess, as
required by statute, whether adoption by the Lasches would serve Foster Child 1’s best interests.
As I previously noted, the DCPP is required by regulation to “work with the resource parent
to provide the child in placement with reasonable opportunities to attend religious activities and
services in accordance with the child’s preference and the wishes of the child's own parents.” See
Prior Opinion at 30 (quoting N.J. Admin. Code § 3A:14-4.1(a)). Moreover, the New Jersey
statutes and regulations governing adoptions specifically directs the DCPP to “make an informed,
objective judgment based on a full and careful assessment of each factor which may affect the
child’s ability to benefit physically, socially and emotionally from the adoptive placement, in
particular, and the community in general” and prohibit the DCPP from “discriminat[ing] in a
child's adoptive placement based on the child's or the adoptive parent’s race, color, national origin,
age, gender, disability, marital status, sexual orientation, state of residence, or religion.” N.J.
Admin. Code § 3A:22-4.1(b),(c); see also N.J. Stat. Ann. §30:4C-51 (declaring that Child
Placement Review Act is necessary to “establish procedures for both administrative and judicial
review of each child’s placement in order to ensure that such placement ensures the safety and
health and serves the best interest of the child.”); N.J. Stat. Ann. § 9:3-37 (declaring that adoption
statute “shall be liberally construed to the end that the best interests of children be promoted and
that the safety of children be of paramount concern.”).
On their face, each of the allegedly discriminatory acts identified by Plaintiffs seems
calculated to serve that goal; Plaintiffs have not alleged any other facts suggesting that there was,
in fact, a retaliatory motive behind those actions. For example, Plaintiffs highlight the unidentified
caseworker’s comment, at the June 29, 2018 meeting that in the future Foster Child 1 might need
therapy to resolve her views on homosexuality, as evidence of DCPP’s alleged animus. However,
18
DA58
in the context of discussing Foster Child 1’s sexuality and the failed adoption by the same-sex
couple in Illinois, that comment, alone, is not sufficient to raise an inference of discriminatory
intent such that this Court can infer a retaliatory motive to Defendants’ facially neutral actions.
Plaintiffs have merely proffered conclusory allegations regarding Defendants’ intent. Indeed,
Plaintiffs allege that “[i]t was clear to the Plaintiffs from [the June 29th] meeting that the
Defendants were hostile to the Plaintiffs’ religious beliefs regarding homosexuality, AC ¶34, and
“[b]ased on the issues that were raised and the comments that made at the meeting just prior to the
Court hearing Plaintiffs allege that the reason for the Defendants seeking removal [of] Foster Child
1 from their home was hostility to their religious beliefs.” AC ¶37. Plaintiffs largely seek to
attribute retaliatory and discriminatory motives to conduct obligated by statute; however, these
conclusory allegations are insufficient to survive a motion to dismiss. In Kundratic v. Thomas,
407 F. App’x. 625, 628 (3d Cir. 2011), the plaintiff alleged that defendants, police officers, arrested
him on assault and harassment charges in retaliation for an incident one month earlier, where he
called 911 to expel one of the defendants from his driveway. Id. at 628. The Third Circuit
concluded that plaintiff’s allegations regarding causation were “too flimsy to warrant credence.”
Id. The Court noted that the police reports documented circumstances leading up to plaintiff’s
arrest, and plaintiff had not alleged any specific facts suggesting defendants “conduct was
propelled by a retaliatory impulse or anything other than their duty to enforce Pennsylvania law.”
Id. Thus, the Third Circuit affirmed the district court’s dismissal of plaintiff’s First Amendment
retaliation claim. Id. Similarly, here, Plaintiffs’ hypothesis that Defendants questioning regarding
Foster Child 1 and Plaintiffs’ religious beliefs evidence religious animus is unavailing considering
the DCPP’s statutory and regulatory obligations.
19
DA59
Moreover, the specific adverse actions identified by Plaintiffs pose their own additional
issues for the causation analysis. Turning first to Plaintiffs’ claims regarding the removal of Foster
Child 1, it appears from Plaintiffs’ allegations that Foster Child 1 was removed from the Lasches’s
home on July 3, 2018, pursuant to a court order following the July 2, 2018 family court hearing6
where the DCPP allegedly sought removal. See AC ¶¶35-36. Judicial authorization for the
removal of Foster Child 1 may preclude a finding of causation . “Like a tort plaintiff, a § 1983
plaintiff must establish both causation in fact and proximate causation. A superseding cause breaks
the chain of proximate causation.” Lamont v. New Jersey, 637 F.3d 177, 185 (3d Cir. 2011)
(holding that suspect’s threatening conduct was a superseding cause which broke the chain of
causation between officer’s violation of police procedures and suspect’s shooting). In other
contexts, courts have held that the actions of a judicial officer may sever the chain of causation.
See Egervary v. Young, 366 F.3d 238, 250 (3rd Cir. 2004) (explaining that “the actions of the
defendants, while clearly a cause of the plaintiff’s harm, do not create liability because of the
intervention of independent judicial review, a superseding cause”); Townes v. City of New York,
176 F.3d 138, 147 (2d Cir.1999) (reversing district court's denial of motion to dismiss § 1983
claim, based on Fourth Amendment violations, against police officers and explaining that “[i]t is
well settled that the chain of causation between a police officer’s unlawful arrest and a subsequent
conviction and incarceration is broken by the intervening exercise of independent judgment ... [a]t
least ... in the absence of evidence that the police officer misled or pressured the official who could
be expected to exercise independent judgment.” (citations omitted)); Toevs v. Quinn, No. 15-
6
New Jersey statutes provide for court review and approval of the DCPP’s placement plans
for foster children. See N.J. Stat. Ann. 30:4C-61.2 (providing for court review and approval of
permanent placement decisions); N.J. Stat. Ann. 30:4C-58 (proving for court review and approval
of placement determinations within 60 days of an initial placement and periodic review every 12
months thereafter).
20
DA60
02838, 2017 WL 1055314, at *5 (D. Colo. Mar. 21, 2017) (finding that affirmance of allegedly
retaliatory actions, “by impartial bodies, such as courts or an Administrative Law Judge (“ALJ”),
effectively ‘breaks’ the causal connection needed for a retaliation claim”).
Here, even assuming that Plaintiffs had alleged facts sufficient to infer religious animus on
the part of Defendants, judicial authorization for the removal of Foster Child 1 would break the
causal connection, if any, between Plaintiffs’ religious beliefs and the alleged retaliatory conduct
-- the removal of Foster Child 1. The ultimate decision approving or denying the DCPP’s
placement decision was made by the New Jersey family court judge following the placement
hearing. Moreover, Plaintiffs have not alleged that Defendants misrepresented facts or withheld
any relevant information from the Family Court judge approving the placement decision, such that
this Court can infer that Defendants’ alleged animus was the cause of Plaintiffs’ harm, despite
judicial authorization for the removal of Foster Child 1. C.f. Bowser v. Blair Cty. Children &
Youth Servs., 346 F. Supp. 2d 788, 797 (W.D. Pa. 2004) (finding that court’s issuance of an ex
parte order, based on child welfare workers’ false allegation that mother had violated a child safety
plan, did not constitute a supervening cause sufficient to break the causal link between workers’
actions and the child’s removal because “the Plaintiffs have alleged a situation of
misrepresentation upon which the doctrine of supervening causes, in regard to judicial actions,
cannot apply”). Accordingly, Plaintiffs cannot trace the alleged First Amendment violation to
Defendants’ alleged animus.
Unlike the removal of Foster Child 1, it does not appear that the suspension of Plaintiffs’
foster parent license was subject to judicial approval; nonetheless, Plaintiffs’ claims regarding the
revocation of their foster parent license suffer from their own causal deficiency. Plaintiffs seek to
infer, based on Defendants’ questions regarding Plaintiffs’ religious views, that the revocation of
21
DA61
their foster parent license was spurred by religious animus. While I find the revocation of
Plaintiffs’ foster parent license7, which purportedly occurred without prior notice or a subsequent
opportunity to be heard, may constitute an adverse action, Plaintiffs have not alleged any facts
specifically linking that action to Defendants’ alleged animus towards their religious beliefs. As
stated, supra, Plaintiffs merely point to Defendants’ inquiries regarding their religious beliefs in
connection with Foster Child 1, and assert that they must be indicative of animus, rather than being
taken in connection with Defendants’ obligations under the relevant statutes. Furthermore,
Plaintiffs’ arguments regarding the non-renewal of their foster parent license are unavailing for yet
another reason. In order to hold an individual defendant liable under Section 1983, a plaintiff must
establish that he or she was “personally involved” in the violation of the plaintiff’s First
Amendment rights. Evancho v. Fisher, 423 F.3d 347, 353–354 (3d Cir. 2005) (dismissing
plaintiffs’ Section 1983 claim against the Attorney General where plaintiff failed to allege any
action specifically taken by the Attorney General regarding plaintiff’s transfer, the alleged
retaliatory action); see also Iqbal, 556 U.S. at 676 (“[b]ecause vicarious liability is inapplicable to
... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.”); Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1998) (“A defendant in a civil rights action must have personal involvement
in the alleged wrongs.... [P]ersonal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence. Allegations of participation or actual
knowledge and acquiescence, however, must be made with appropriate particularity”). Plaintiffs’
7
Plaintiffs have not pled whether they sought administrative or judicial review of that
decision. As I noted in my prior Opinion, the statutory scheme provides that “[a] person aggrieved
by a final decision of the [DCPP] is entitled to seek judicial review in the Appellate Division of
the Superior Court.” Prior Opinion at 23; see also N.J. Stat. Ann. § 30:4C-27.11.
22
DA62
allegations refer to the decision by the DCPP to suspend their license, but the DCPP has been
dismissed as a party. See Prior Opinion at 13. Critically, Plaintiffs have not alleged that any of
the Defendants had a role in suspending Plaintiffs’ license, or that their roles at the DCPP involve
making such licensing determinations.8
For those reasons, Plaintiffs have failed to allege facts sufficient to infer a causal
connection between either their constitutionally protected religious beliefs and either of the
retaliatory actions they allegedly suffered. Accordingly, Plaintiffs’ First Amendment retaliation
claim is dismissed. To the extent Plaintiffs believe they can allege additional facts to remedy the
identified pleading deficiencies related to any actions taken by Defendants in connection with the
non-renewal of Plaintiff’s license, Plaintiffs may file a motion to amend their Complaint within
thirty days. If Plaintiffs do not file such a motion, this case will be closed.
C. The Section 1985 Claim
Plaintiffs allege that Defendants conspired for the purpose of denying Plaintiffs’ First and
Fourteenth Amendment rights. In order to assert a violation of Section 1985, a plaintiff must allege:
“(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class
of persons of the equal protection of the laws, or of equal privileges and immunities under the
laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is injured in his person
or property or deprived of any right or privilege of a citizen of the United States.” Farber v. City
of Paterson, 440 F.3d 131, 134 (3d Cir. 2006) (quoting United Bhd. of Carpenters & Joiners v.
Scott, 463 U.S. 825, 828–29 (1983)).
8
Since the DCPP allegedly failed to provide reasons for Plaintiffs’ suspension, if Plaintiffs
could in good faith allege personal involvement by Defendants in the decision to suspend
Plaintiffs’ license, they might be able to allege a First Amendment relation claim on that basis.
23
DA63
Here, Plaintiffs have not alleged any facts in support of the first element: the existence of
a conspiracy. Nothing in Plaintiffs’ Amended Complaint suggests an agreement or concerted
action amongst Defendants. See Startzell, 533 F.3d at 205 (“To constitute a conspiracy, there must
be a ‘meeting of the minds.’ ” (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 (1970)));
Aulisio v. Chiampi, 765 F. App’x 760, 764 (3d Cir. 2019) (dismissing conspiracy claim against
state prison officials because inmate-prisoner “offered nothing more than conclusory statements
that Defendants conspired to deprive him of his constitutional rights; no evidence suggests that
they agreed, plotted, or even discussed doing so”). Accordingly, Plaintiffs’ Section 1985
conspiracy claim is dismissed without prejudice.
D. Qualified Immunity
Defendants also assert that Plaintiffs’ Complaint should be dismissed because Defendants
are entitled to qualified immunity. See Def. Br. at 25-26. Because Plaintiffs have failed to state
a claim as to a violation of their constitutional rights, I need not address whether the Individual
Defendants are entitled to qualified Immunity on any of Plaintiffs’ claims.
IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion to Dismiss is granted in its entirety.
Date: June 4, 2020

Hon. Freda L. Wolfson
24
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____________________________________
:
LASCHE, :
Plaintiffs, :
: ORDER
vs. :
:
:
Defendants. :
____________________________________:
THIS MATTER having been opened to the Court by Robert McGuire, Esq., counsel for
Defendants Kyle Higgins, Katie Epperly, Mary Lippencot, and Janelle Clark (“Defendants”) on a
Motion to Dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(6); it appearing that
Plaintiffs Michael and Jennifer Lasche (“Plaintiffs”), through their counsel, Michael P. Laffey,
Esq., oppose the motion; the Court having considered the submissions of the parties without oral
argument, pursuant to Fed. R. Civ. P. 78; for the reasons set forth in the Opinion filed on this date,
and for good cause shown,
IT IS on this 4th day of June, 2020,
ORDERED that Defendants’ Motion to Dismiss [ECF No. 18] is GRANTED; and it is
further
ORDERED that Plaintiffs’ Section 1985 claim against Defendants is dismissed; and it is
further
ORDERED that Plaintiffs’ Section 1983 claim against Defendants premised on alleged
violations of the Equal Protection Clause of the Fourteenth Amendment is dismissed; and
it is further
DA65
ORDERED that Plaintiffs’ Section 1983 claim premised on alleged violations of the First
Amendment is dismissed; if Plaintiffs believe they can allege additional facts to remedy
the identified pleading deficiencies in their First Amendment claim regarding any actions
taken by Defendants in connection with the non-renewal of Plaintiffs’ foster parent license,
they may file a motion for leave to amend before the Magistrate Judge within thirty (30)
days. If Plaintiffs do not file such a motion, the Clerk of the Court will be directed to close
this case.

Freda L. Wolfson
DA66

_____________________________________
MICHAEL LASCHE and )
JENNIFER LASCHE )
)
PLAINTIFFS ) No.: 3:18-17552 (FLW) (TJB)
)
Vs. )
)
KYLE HIGGINS, KATIE EPPERLY, )
MARY LIPPINCOT, JANELLE CLARK, )
JOHN OR JANE DOES 1-10 )
)
DEFENDANTS )
)
_____________________________________)
PLAINTIFFS’ NOTICE OF APPEAL
NOTICE is hereby given that the Plaintiffs Michael Lasche and Jennifer Lasche appeal to
the United States Court of Appeals for the Third Circuit the District Court’s opinions and orders
dated September 26, 2019 and June 4, 2020.
Dated: June 23, 2020 Respectfully Submitted,
Michael P. Laffey
Michael P. Laffey (ID # 026761986)

MESSINA LAW FIRM, P.C.
961 Holmdel Road
Holmdel. New Jersey 07733
(732) 332-9300
Attorneys for Plaintiffs Michael and
Jennifer Lasche
A67

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Case: 20-2325 Document: 18 Page: 1 Date Filed: 01/08/2021

United States Court of Appeals

Case No. 20-2325

MICHAEL LASCHE; JENNIFER LASCHE,

STATE OF NEW JERSEY; DIVISION OF CHILD PROTECTION AND

BRIEF ON BEHALF OF PLAINTIFFS-APPELLANTS AND

TABLE OF AUTHORITIES ................................................................................... iii

Fowler v. UPMC Shadyside,

Sanjuan v. American Bd. of Psychiatry and Neurology, Inc.,

Statutes & Other Authorities:

SUBJECT MATTER AND APPELLATE JURISDICTION

pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state-law

ISSUES PRESENTED FOR APPEAL

1. Is the State of New Jersey Division of Child Placement and

Permanency a “place of public accommodation” subject to the New Jersey Law

Against Discrimination, N.J. Stat. Ann. § 10:5-12 (f)? (A32-37)

2. Have Appellants plead sufficient facts to make a plausible claim that

their first amendment rights have been violated? (A51-A 63)

Appellants home preclude a finding of causation that defeats Appellants’ claim?

4. Is taking retaliatory action against a Foster Parent for telling a foster

have the Appellants sufficiently plead that claim? (A53-54)

their Equal protection Rights have been violated? (A48-A51)

6. Have Appellants properly pled a cause of action pursuant to 42 USCS

RELATED CASES AND PROCEEDINGS

STATEMENT OF THE CASE

adopted by her foster parents. (A107)

On or about September 1, 2017, the defendants Kyle Higgins and Katie

New Jersey Division of Child Placement and Permanency (hereinafter “DCPP”)

(hereinafter collectively referred to as the “Foster children”). Appellants agreed to

they were in consideration for adoption. (A109)

beliefs if she went with another family, (A109).

Appellants and DCPP, (A110).

At that meeting, Defendant Higgins discussed that there was going to

advocate for the Children. (A110)

Appellants radically changed. (A110)

she would investigate, (A111). Additionally Appellants had information that a

interest to be adopted alone, (A114)

the other Defendants became even more hostile.(A111)

Defendant Kyle Higgins to transport Foster Child 1 to this visit. On information

meeting with you”. (A112)

a religious belief of the Appellants indicates a hostility to that religious belief. It

basis of a parent’s religious beliefs, (A113).

had picked up their religious beliefs regarding homosexuality prior to coming to

Appellants home, (A113)

At the June 29th meeting, the representatives of the DCPP expressed

beliefs regarding homosexuality, (A113, 114).

done over her objections. (A114)

On October 12, 2018, a representative of the DCPP arrived at the

other disqualifying factors for suspending Appellants as Foster Parents it is clear

defendants hostility to Appellants’ religious belief that homosexuality is a sin.

discriminatory basis for the suspension, (A115)

Appellants’ qualifications to be foster parents had never been questioned and

Appellants’ religious beliefs regarding homosexuality that they were suddenly

found unfit to adopt a child or to be Foster Parents (A115).

still not been given a reason.

notice of removal on behalf of all Defendants9 A-76). On February 4 2019 the

for failure to state a claim, (A92)

On September 27 2019 the Honorable Judge Freda L. Wolfson J.D.C.