212 F.3d 798 (3rd Cir. 2000), 98-5193, Nicini v. Morra

Docket Nº:98-5193
Citation:212 F.3d 798
Party Name:ANTHONY NICINI, JR., Appellant v. EDWARD MORRA; NEW JERSEY DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF YOUTH AND FAMILY SERVICES; FRANK CYRUS; JOHN DOE(S), a fictitious person or persons; XYZ ENTITY (IES), a fictitious entity or entities FRANK CYRUS, Appellee
Case Date:May 19, 2000
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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212 F.3d 798 (3rd Cir. 2000)

ANTHONY NICINI, JR., Appellant

v.

EDWARD MORRA; NEW JERSEY DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF YOUTH AND FAMILY SERVICES; FRANK CYRUS; JOHN DOE(S), a fictitious person or persons; XYZ ENTITY (IES), a fictitious entity or entities

FRANK CYRUS, Appellee

No. 98-5193

United States Court of Appeals, Third Circuit

May 19, 2000

Argued January 26, 1999

Reargued En Banc February 16, 2000

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 95-cv-02303) District Judge: Hon. Jerome B. Simandle

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[Copyrighted Material Omitted]

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Joseph P. Grimes (Argued) Grimes, Grimes, Grimes & Grimes Cherry Hill, New Jersey 08034, Counsel for Appellant

Peter Verniero Attorney General of New Jersey Mary C. Jacobson (Argued) Assistant Attorney General Of Counsel Yolanda C. Rodriguez Deputy Attorney General On the Brief Trenton, New Jersey 08625, Counsel for Appellee, Frank Cyrus

Argued January 26, 1999

Before: SLOVITER, McKEE, and RENDELL, Circuit Judges

Reargued En Banc February 16, 2000

Before: BECKER, Chief Judge, SLOVITER, MANSMANN, GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, McKEE, RENDELL, and BARRY, Circuit Judges

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Anthony Nicini, Jr., filed suit under 42 U.S.C.S 1983 and state tort law against Frank Cyrus, a Family Services Specialist with the New Jersey Department of Human Services, Division of Youth and Family Services ("DYFS"), and other defendants, alleging they violated his constitutional rights because he was abused by the person with whom he was staying while in DYFS custody. The District Court, which had earlier dismissed all claims against the other defendants and the

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official capacity claim against Cyrus, granted summary judgment in favor of Cyrus on the section 1983 claim and state tort law claims against him in his individual capacity, holding that the facts of record did not establish a constitutional violation. Nicini appeals.

I.

FACTS

In February 1990, fifteen-year-old Anthony Nicini, Jr., was admitted to the John F. Kennedy Hospital's Crisis Center (JFK) after an apparent suicide attempt. DYFS became involved when JFK notified it of Nicini's allegations that his father had physically abused him. Two DYFS caseworkers responded to JFK, and Nicini told them that he was afraid of his father, who "punches a lot" and "always hits with closed fist." App. at 212. Nicini also said that he had attempted suicide before. DYFS notified the prosecutor's office of Nicini's allegations and assisted his mother in obtaining a temporary restraining order against Nicini's father. DYFS also assigned caseworker Frank Cyrus to Nicini's case.

Nicini continued to have difficulty at home and in school. According to a DYFS report dated September 27, 1990, Nicini slashed his wrists that month in an apparent suicide attempt and thereafter left home after an argument with his mother. The report states that Nicini "has no where to go and needs placement." App. at 214. DYFS was informed on October 9, 1990, that Nicini was not at school and that he had previously told the assistant principal that he would not return home.1 On October 10, 1990, DYFS received a call from the police in Cherry Hill, New Jersey, that Nicini had been located and that he had repeated his refusal to return home and again stated that his father was abusive. Ex. at 28. That same day, a DYFS caseworker contacted Nicini's mother, who said that she did not want Nicini to return home, and his father, who could not identify any relatives with whom Nicini could stay. Nicini's father came to DYFS to sign a foster care placement agreement. 2

DYFS placed Nicini in the foster home of Dennis Armento but Nicini ran away on or before November 2, 1990. After Nicini was located, his aunt, Catherine Livingston, agreed to DYFS's request that Nicini stay with her. On or before December 31, 1990, Nicini ran away once again. Livingston had apparently become ill and DYFS arranged for Nicini to stay with Bonnie Nicini, another aunt. Cyrus then arranged that Nicini be evaluated by a psychiatrist, Dr. Charles Trigiani. Dr. Trigiani was unsure after Nicini'sfirst appointment on January 3, 1991, whether Nicini required inpatient psychiatric care but agreed to recommend Nicini's evaluation at JFK. On January 10, 1991, Cyrus informed Nicini's mother of Dr. Trigiani's recommendation and requested that she bring Nicini to JFK.

What happened thereafter is not clear from the record or the appendices submitted with the parties' briefs, but apparently Nicini was not admitted to JFK at that time. However, a DYFS report dated

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January 30, 1991 notes that Nicini was at JFK Hospital with an infected hand and might require admission to treat the infection. Bonnie Nicini reportedly stated that the plan was to hospitalize Nicini for depression. The report also states that when the hospital sought consent from Nicini's mother for his treatment, she refused and claimed he was in DYFS custody. At some point thereafter, Nicini was transferred to JFK's psychiatric unit for evaluation. On February 5, 1991, DYFS learned that Nicini had run away from the psychiatric unit after JFK recommended the possibility of admitting Nicini to treat his depression.

Nicini ran to the home of Edward and Dolores Morra in Cherry Hill, New Jersey. Nicini's older brother Danny had gone to school with their children and had stayed with them while experiencing similar family problems. On February 9, 1991, the police notified DYFS that they had located Nicini at the Morra home. According to a DYFS incident report, Nicini had been taken to JFK but was "ready for discharge." Ex. at 72. A DYFS caseworker (not Cyrus) contacted Catherine Livingston, who stated that she had known Nicini was at the Morra home and that she would not permit him to return to her home. The caseworker then spoke to Nicini's father, who expressed his belief that the Morras were "not [a] good placement but [who] agreed to weekend placement." Ex. 69 (emphasis in original). After being given the option of taking Nicini home or locating a relative with whom Nicini could stay, Nicini's father told the caseworker to speak to Livingston. She, of course, had already refused to take Nicini back.

The caseworker then permitted Nicini, who "was refusing to go anywhere else," Ex. at 69, to return to the Morra home that day, Saturday, February 9, 1991. The incident report states that "Frank Cyrus will contact[the Morras] on Monday [February 11]." Ex. at 70.

Between February 9, 1991 and February 28, 1991, Cyrus visited Nicini twice at the Morra home. He also had telephone contacts with Nicini and the Morras. App. at 226.3 Cyrus's first visit was apparently on Monday, February 11, 1991. App. at 250 (expert report). It was Cyrus's overall impression that "everything was positive," App. at 226-27, and that everything "point[ed] towards[Nicini] doing well there and becoming stabilized and progressing . . . ," App. at 228. Additionally, a counselor from an outreach center visited Nicini once a week at the Morra home. During that same time period, Cyrus performed a perpetrator ("PERP") check on the Morras, which would have revealed any criminal record of sexual abuse in the state of New Jersey, including any reports of such abuse to DYFS. The PERP check revealed nothing.

Cyrus interviewed the Morras during a home visit. He did not remember asking whether they had ever had any contact with any law enforcement agency but he recalled asking Edward Morra if anything would prevent him from becoming a foster parent, and Morra replied in the negative.

On February 28, 1991, Nicini appeared at a hearing before the Honorable Vincent D. Segal in the Family Part of the Chancery Division of the Superior Court of New Jersey. Although the record does not make clear the purpose of the hearing, the proceedings were apparently related both to certain criminal conduct by Nicini and to where he should be placed. As a result of the hearing, Judge Segal sentenced Nicini to two years probation and also concluded that Nicini should remain with the Morras.

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Cyrus was present and testified at the hearing along with Nicini, Nicini's mother, and Catherine Livingston, Nicini's aunt. Also present were the Assistant Prosecutor for Camden County, New Jersey, and Ronald DeSimone, an attorney representing Nicini. Cyrus informed the court of Nicini's prior placements and that Nicini:

is currently with a friend and the family, the Morra family.4 He's not with a foster family. Tony was with the foster family initially, Mr. Dennis Armento, and he left the home unofficially . . . .

. . .

Tony found his way to the Morras, who I guess was a friend of his. The Morras indicated they would -they knew him, they liked him and they wouldn't mind him staying there. He's been there now for a couple of weeks. They have indicated that he's doing very well there, no problems. But that is not an official foster home, that's an unofficial home.

App. at 154-55.

In response to the court's query whether the Morras would qualify as para-foster parents, Cyrus stated:

Yes they would, your Honor. We've -so far the only thing I've done is a perp check, perpetrator check, and there's nothing that's come up. There's no -nothing we've seen in terms of any problem with the law. Although I think, and Mrs. Nicini can speak for herself, I think she has some objections about it on a full time basis. But the family seems to show an interest towards Tony, they have said they wouldn't mind keeping him -keeping him on a temporary basis. He has been stable since he's been with them. But...

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