Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 1 of 28 PageID: 282924 KENNETH ROSELLINI (6047) ATTORNEY AT LAW 636A Van Houten Avenue Clifton, New Jersey 07013 (973) 998-8375 Fax (973) 998-8376 Attorney for Plaintiffs, Christopher Zimmer, Sr. and Nicole Zimmer UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CHRISTOPHER ZIMMER , SR. AND NICOLE ZIMMER, CIVIL ACTION Plaintiffs, Case No. : v. THE NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY (“DCP&P”) (formerly Division of Youth & Family Services), LISA VON PIER, in her official capacity as Director of DCP&P/Assistant Commissioner of the New Jersey Department of Children and Families (“DCF”), ALLISON BLAKE, in her official capacity as the Commissioner of DCF, MONIQUE DYKES, in her individual capacity, and MICHELLE MARCHESE, in her individual capacity, JURY TRIAL DEMANDED VERIFIED COMPLAINT and JURY DEMAND Defendants. Plaintiffs Christopher Zimmer, Sr. and Nicole Zimmer, in the above-captioned matter, by and through their counsel of record, for their causes of action against Defendants, state as follows: PARTIES 1. Plaintiff, Christopher Zimmer, Sr. (referred to at times as “Mr. Zimmer”) is currently domiciled in the State of Jersey, and has resided in Warren County, New Jersey at times relevant to this Complaint, and is the father of Christopher Zimmer, Jr. 2. Plaintiff, Nicole Zimmer (referred to at times as “Mrs. Zimmer”) is currently domiciled in the State of Jersey, and has resided in Warren County, New Jersey at times relevant to Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 2 of 28 PageID: 282925 this Complaint, and is the mother of Christopher, Jr. (together Mr. Zimmer, Mrs. Zimmer and Christopher Zimmer, Jr. are sometimes referred to as the “Zimmers” or the “Zimmer family”). 3. The Defendant, The Division of Child Protection and Permanency (“DCP&P”) (formerly the Division of Youth and Family Services, hereinafter referred to at times throughout this complaint as “DYFS”), is New Jersey's child protection and child welfare agency within the Department of Children and Families. 4. The Defendant, Lisa Von Pier (“Pier”) is the current Director of DCP&P and is liable for her actions in her official capacity done under color of state law. This Defendant is entrusted to protect the Constitutional rights of those she encounters and at all times relevant hereto was acting within the scope of her duties and authority, under color or title of state law supervised or controlled one or more of the Defendants herein, or acted in concert with one or more of the other individual Defendants in the performance or conduct of their actions. 5. The Defendant, Allison Blake (“Blake”) is the current Commissioner of the Department of Children and Families and is liable for her actions in her official capacity done under color of state law. This Defendant is entrusted to protect the Constitutional rights of those she encounters and at all times relevant hereto was acting within the scope of her duties and authority, under color or title of state law supervised or controlled one or more of the Defendants herein, or acted in concert with one or more of the other individual Defendants in the performance or conduct of their actions. 6. Defendant, Monique Dykes (“Dykes”), is currently employed as a supervisor of child protective services workers and during relevant times to this Complaint and is liable for Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 3 of 28 PageID: 282926 her acts and omissions in her individual capacity done under color of state law. This Defendant is entrusted to protect the Constitutional rights of those she encounters and at all times relevant hereto was acting within the scope of her duties and authority, under color or title of state law supervised or controlled one or more of the Defendants herein, or acted in concert with one or more of the other individual Defendants in the performance or conduct of their actions. 7. Defendant, Michelle T. Marchese (“Marchese”), is upon information and belief currently employed as a child protective services worker by DCP&P and during relevant times to this Complaint and is liable for her acts and omissions in her individual capacity done under color of state law. This Defendant is entrusted to protect the Constitutional rights of those she encounters and at all times relevant hereto was acting within the scope of her duties and authority, under color or title of state law and acted in concert with one or more of the other individual Defendants in the performance or conduct of their actions. JURISDICTION AND VENUE 8. The jurisdiction of this Court is invoked by Plaintiffs pursuant to 28 U.S.C. §§1331, 1343 and 1367 which confer original jurisdiction upon the Court on the grounds that the instant action arises under the First, Second, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, the Civil Rights Act of 1871, as amended, 42 U.S.C. §§1981, 1983, 1985, 1986 and 1988. 9. Venue in the New Jersey District is properly laid pursuant to 28 U.S.C. §1391, in so far as the following alleged unlawful conduct complained of in this Complaint, which forms the factual and legal basis of the claims of the Plaintiffs, arose within the geographical limits of this District. Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 4 of 28 PageID: 282927 FACTUAL BACKGROUND 10. Plaintiffs Christopher Zimmer, Sr. and Nicole Zimmer are the loving parents of Christopher Zimmer, Jr., who is fifteen years old. 11. The Zimmers are domiciled in Warren County, New Jersey and reside in a one-family home. 12. Christopher Zimmer, Sr. and Nicole Zimmer have exercised their Fundamental Constitutional Rights as parents to make decisions concerning the care, custody, and control of their child, Christopher Zimmer, Jr. 13. The Zimmers have exercised their Fundamental Constitutional Rights of Freedom of Association, including the rights to maintain or exclude human relationships as a choice of intimate or expressive association, including the choice of homeschooling Christopher Zimmer, Jr. in a manner academically equivalent to that provided in the local public school. 14. The Zimmers have exercised their Fundamental Constitutional Right to Bear Arms, and have maintained lawful possession of firearms. 15. The Zimmers have the Fundamental Constitutional Right to be free from unlawful investigations performed under color of state law that threaten removal of children from parents by state agencies, where there is no reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse. 16. The Zimmers have the Fundamental Constitutional Right to be free from unlawful investigations performed under color of state law whose purpose is to fabricate evidence for the purpose of depriving persons of Constitutional Rights. Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 5 of 28 PageID: 282928 17. On January 13, 2015, the Zimmers were together peacefully at their home. 18. On January 13, 2015, there was no reasonable and articulable evidence giving rise to a reasonable suspicion that Christopher Zimmer, Jr. had been abused or was in imminent danger of abuse by the Plaintiffs or anyone else. 19. On January 13, 2015, unannounced, the Defendant Michelle T. Marchese appeared at the front door of the home of the Zimmers. 20. Upon information and belief, the Defendant Monique Dykes directly supervised the conduct of Marchese with respect to the investigation by DCP&P of the Zimmer family. 21. When Marchese appeared at the front door of the home of the Zimmers, Christopher Zimmer, Sr. asked Marchese why she was at the Zimmers’ home. 22. Marchese stated that she was a DCP&P caseworker and that she categorically had to come into the Zimmer family home “Now!” 23. When pressed again by Christopher Zimmer, Sr. as to why Marchese, as a DCP&P caseworker, had authority to come into the Zimmers’ home, Mr. Zimmer was told by Marchese that she was there to investigate the Plaintiffs’ homeschooling of their child Christopher Zimmer, Jr. 24. Marchese further stated that the DCP&P had allegedly received a call from someone, whose name she did not provide, that Christopher Zimmer, Jr. was not getting the “proper homeschooling”, and she was at the Zimmer home under the authority of DCP&P to make sure the Plaintiffs were homeschooling Christopher Zimmer, Jr. “correctly”. 25. Marchese and the DCP&P never stated to the Zimmers the nature of the homeschooling of Christopher Zimmer, Jr. that they were allegedly not performing “correctly”. 26. Christopher Zimmer, Sr. told Marchese that she could not come into the Zimmer family Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 6 of 28 PageID: 282929 home, and she did not have his consent to enter the home. 27. Marchese interrupted Christopher Zimmer, Sr.’s statement that she was not allowed into his home by emphatically asserting that he had to let her in “right now” and he “could not refuse” her entry. 28. Christopher Zimmer, Sr. then proceeded to call the local police and told Marchese to have a seat in her DCP&P van while he called them. 29. The local police arrived and failed to remove Marchese from the Zimmers home, instead allowing her to continue to threaten and investigate the Zimmers without a warrant or probable cause. 30. The Zimmers, under duress and the coercive threats of Marchese acting under color of state law, then proceeded to allow Marchese into their home against their will, involuntarily. 31. During the entire ordeal, Marchese never advised the Zimmers of their Constitutional Rights. 32. Now in the Zimmers home, Marchese informed the Zimmers that the DCP&P categorizes its investigations into two “tiers”. 33. The “first tier” consisted of allegations of “higher”, more immediate threat cases dealing with abuse and neglect of children. 34. The “second tier” consisted of “less severe” cases, which apparently did not deal with abuse and neglect of children. 35. Marchese advised the Zimmers that she had appeared at the Zimmers’ home under this “second tier” of cases which are “less severe” and apparently did not deal with abuse and neglect of children. Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 7 of 28 PageID: 282930 36. Marchese then sat down at a table at the Zimmers’ home with all three of the Zimmers present. 37. Marchese against stated her name, that she was acting on authority of DCP&P, and then reiterated that she was at the home investigating a call about Christopher Zimmer, Jr.’s homeschooling and she was there to make sure that he was receiving the “proper education”. 38. Marchese then began interrogating Nicole Zimmer about her homeschooling of Christopher Zimmer, Jr. and about whether she had any written records concerning tests, grades, attendance and form of curriculum. 39. Nicole Zimmer explained to Marchese some of her successful teaching methods for Christopher Zimmer, Jr. 40. Nicole Zimmer explained to Marchese that she was not required to maintain written records under New Jersey Law. 41. Marchese then asserted that such records were required by New Jersey Law, while failing to cite any legal authority for her assertion. 42. In fact, the State of New Jersey clearly recognizes the rights of parents to homeschool their children where they “receive equivalent instruction elsewhere than at school (see N.J. Stat. Ann. §18A:38-25), and there is no legal authority for Marchese’s assertion that written homeschooling education records be maintained by law. 43. In fact, during Marchese’s lengthy interrogation, she never once stated what allegation the purported anonymous caller made to give DCP&P probable cause to believe that Christopher Zimmer, Jr. was not receiving a proper education by homeschooling. 44. Marchese then instructed the Zimmers that Christopher Zimmer, Jr.’s homeschooling had Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 8 of 28 PageID: 282931 to include what the public school system would have taught him, and that they had to both work with the public school and follow the public school curriculum. 45. In fact, there is no legal requirement that the Zimmers work with the local public school and follow the local public school curriculum. 46. When the Plaintiffs explained to Marchese that, due Mr. Zimmer’s work schedule in which he has certain weekdays off, Saturday and Sunday are often considered work/school days in the Zimmers’ household, Marchese proceeded to interrogate Christopher Zimmer, Jr. about what he had done on Sunday. 47. Concerned about the fact that Christopher Zimmer, Jr.’s maternal grandmother had passed away on a Sunday ten days prior, and that Christopher Zimmer, Jr. may feel the need to discuss her passing in response to the question—Mr. Zimmer instructed his son not to answer the question. 48. Marchese immediately became loud and emphatically questioned why Mr. Zimmer was “being so defensive”. 49. When Mr. Zimmer told Marchese that she had no legal right to involuntarily question them in their home about their homeschooling of Christopher Zimmer, Jr., Marchese asserted that she had such legal right, without citing any legal authority. 50. Marchese now abandoned all pretense of purported concern for homeschooling and began asking Christopher Zimmer, Jr. completely unrelated questions. 51. For example, Marchese asked Christopher Zimmer, Jr. what he wanted to be when he grew-up. 52. Christopher Zimmer, Jr. responded that he wanted to be a Marine scout sniper, Marchese asked him why and, before he had a chance to answer, whether he liked to play the video Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 9 of 28 PageID: 282932 game “Call of Duty”. 53. Mr. Zimmer again asserted that Christopher Zimmer, Jr. did not have to answer that question. 54. Mr. Zimmer was concerned, inter alia, about the fact Marchese was attempting to link his son’s answer about the fact he wanted to be a Marine scout sniper to a video game. 55. In fact, Christopher Zimmer, Jr.’s grandfather was in the army, and his uncles were in the navy. 56. In fact, Christopher Zimmer, Jr. has relatives on both sides of his family that are or were in the military, and he is aware that real life military experience is nothing like video games. 57. In fact, Christopher Zimmer, Jr. had asked his parents to take him to a Marine recruiting office in Rockaway, New Jersey approximately two years prior to talk about what he had to do if he wanted to become a Marine. 58. Christopher Zimmer, Jr. was explained to by the United States Marine Corps recruiter about the ASVAB test (which is a multiple-aptitude battery that measures developed abilities and helps predict future academic and occupational success in the military which is administered annually to more than one million military applicants, high school, and post-secondary students). 59. Christopher Zimmer, Jr. was also advised by the Marine recruiter of the physical and other requirements to become a Marine. 60. The Plaintiffs have bought their son an ASVAB book, at their son’s request, so he can study it. 61. The Plaintiffs have bought their son a home exercise machine, also at his request, that in Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 10 of 28 PageID: 282933 his room. 62. Concerned that Marchese and DCP&P were trying to make improper associations, fabricate evidence and delve into associations which are protected under the First Amendment to the Constitution for the United States of America, Mr. Zimmer asserted that this questioning by Marchese should stop. 63. Again, Marchese immediately became loud and emphatically questioned why Mr. Zimmer was “being so defensive”. 64. Marchese then questioned Christopher Zimmer, Jr. as to whether or not he had ever told anyone that he doesn’t do schoolwork. 65. Christopher Zimmer, Jr. responded that he had never made such a statement. 66. Mr. Zimmer again asserted to Marchese that the questioning should stop 67. Again, Marchese immediately became loud and emphatically questioned why Mr. Zimmer was “being so defensive”, this time asserting that Mr. Zimmer was also being “angry”. 68. Again, Mr. Zimmer asserted and explained to Marchese that she had no right to compel the Zimmers to let her into their home and interrogate them in this manner. 69. Marchese then asserted that she had the right to be in the home to interrogate the Zimmers, and asked when was the last time that they had read up on the homeschooling laws because, she asserted, the laws had changed. 70. When Mr. Zimmer demanded that Marchese produce the legal authority for her questioning and provide what homeschooling laws had purportedly “changed”, Marchese refused and/or failed to provide any legal authority, stating that she didn’t have the information “with her”, but she could get it for them. Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 11 of 28 PageID: 282934 71. At one point, Marchese asked if Christopher Zimmer, Jr. was up to date with his vaccines, to which Mrs. Zimmer answered yes. 72. When Mrs. Zimmer expressed that she did have concerns about the risks of the use of vaccines and was aware of New Jersey law the provided for religious exemptions from vaccination, Marchese stated snidely that Christopher Zimmer, Jr. “looked o.k.” to her. 73. Marchese now demanded that Plaintiffs sign HIPPA (Health Insurance Portability and Accountability Act) Medical Release Forms so that DCP&P would have full access to all of Christopher Zimmer, Jr.’s medical records. 74. Marchese then demanded that the Zimmers provide the last four digits of their Social Security Numbers so that DCP&P could perform a background investigation on the Zimmers. 75. The Zimmers signed the HIPPA forms and provided the Social Security number information, believing that their ordeal with the DYFS interrogation would be over. 76. Instead, Marchese persisted and continued her interrogation of Christopher Zimmer, Jr. 77. Marchese then asked Christopher Zimmer, Jr. whether the Plaintiffs argue, and he answered “occasionally”. 78. Marchese then asked Christopher Zimmer, Jr. whether when the Plaintiffs argue, did he get scared, and he answered no. 79. Marchese then asked Christopher Zimmer, Jr. whether the Plaintiffs threw things at each other, and he answered no. 80. Marchese then asked Christopher Zimmer, Jr. whether the Plaintiffs drank alcohol, and he answered no. 81. Marchese then asked Christopher Zimmer, Jr. whether he had ever seen illegal drugs in Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 12 of 28 PageID: 282935 the house, and he answered no. 82. Marchese then asked Christopher Zimmer, Jr. whether there were weapons in the house. 83. Plaintiffs’ son looked to Mr. Zimmer, who proceeded to answer the question. 84. Mr. Zimmer told Marchese that the Zimmers have lawfully possessed firearms at their home and a small collection of pocket knives that his son collects. 85. Marchese then asked Zimmer if there was anything like “big swords” in the home, and Mr. Zimmer answered no. 86. Mr. Zimmer proceeded to inform Marchese that the firearms were in fact lawfully in their possession and secure in a gun safe. 87. Marchese then asked who had the keys to the safe, and Mr. Zimmer answered that only he had the keys. 88. Marchese now demanded to see the firearms and where Christopher Zimmer, Jr. sleeps. 89. Mr. Zimmer then took Marchese to the room where the firearms are stored in the safe. 90. Mr. Zimmer further explained to Marchese that Christopher Zimmer, Jr. is legally licensed by the New Jersey Division of Fish and Wildlife to hunt with a firearm. 91. Once at the safe, Marchese attempted to open the safe herself, and it did not open. 92. Marchese then instructed Mr. Zimmer to open the gun safe, and show her the guns. 93. When Mr. Zimmer opened the gun safe, Marchese instructed him to pull out a gun and show it to her so she could see it better, which he did. 94. Marchese then asked Mr. Zimmer if the ammunition was kept separate from the firearms, and he pointed to an empty ammo can next to the gun safe, she said o.k. 95. Marchese then attempted to quote from New Jersey statutory law regarding keeping guns and ammunition separate. Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 13 of 28 PageID: 282936 96. Marchese now asked Mr. Zimmer if his son was or had ever appeared to be suicidal, which Mr. Zimmer answered no. 97. Marchese now proceeded to go into Christopher Zimmer, Jr.’s room and observe everything in plain view, followed by her opening a door that goes to a bathroom. 98. As Marchese was getting to ready to leave the Zimmers’ home, she was talking about getting back to the Zimmers with the homeschooling laws and that maybe she could help them “tweak” their routine. 99. Subsequent to the involuntary interrogation at their home by Marchese of the DCP&P, the Zimmers proceeded to revoke the HIPPA Releases. 100. Subsequent to the involuntary interrogation at their home by Marchese of the DCP&P, the Zimmers proceed to retain an attorney to protect their Constitutional Rights. 101. By letter of their Counsel to Marchese faxed to the Warren County DCP&P office on January 30, 2015, to the attention of Marchese, the Plaintiffs demanded that DCP&P immediately cease and desist any direct communications with the Zimmer family and any of their health care providers. 102. By letter of their Counsel to Marchese faxed to the Warren County DCP&P office on January 30, 2015, the DCP&P was placed on Notice that it must immediately Cease and Desist any further violations of the Zimmer family’s rights under, inter alia, the First, Second, Fourth, Fifth, Ninth and Fourteenth Amendment to the Constitution for the United States of America. 103. By letter of their Counsel to Marchese faxed to the Warren County DCP&P office on January 30, 2015, Plaintiffs demanded that DCP&P immediately produce any and all allegations, notes and/or records which it may have with respect to any investigation of Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 14 of 28 PageID: 282937 the Zimmer family conducted by the DCP&P, and that it immediately destroy any medical information regarding the Zimmer family which may have been obtained by way of medical releases which were procured from the Zimmer family under unlawful duress by the DCP&P. 104. By letter of their Counsel to Marchese faxed to the Warren County DCP&P office on January 30, 2015, Plaintiffs demanded that DCP&P immediately produce the purported legal authority under which DCP&P conducted its search and interrogation of the Zimmers. 105. The Zimmers did not receive any communication from the Defendants after January 13, 2015, until they received a letter in the mail dated March 9, 2015 from DCP&P, signed by Marchese as “Family Service Specialist” and Monique Dykes as “Supervising Family Service Specialist”, which states: RE: Christopher Zimmer Dear Mr. & Mrs. Zimmer, We were unable to complete our assessment as it pertains to a referral made to our agency on 1/07/15, as you were unwilling to cooperate with the CWS referral process. Therefore, DCP&P will not be providing services to your child and your family at this time. If you need any additional services, please contact the State Central Registry 24hour service number at 1-877-652-2873. Thank you for your cooperation during our recent contacts. 106. The DCP&P and Marchese have failed and/or refused to respond to the demands in the January 30, 2015 letter from the Zimmers’ legal counsel that they produce any and all allegations, notes and/or records which it may have with respect to any investigation Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 15 of 28 PageID: 282938 of the Zimmer family conducted by the DCP&P, and that it immediately destroy any medical information regarding the Zimmer family which may have been obtained by way of medical releases which were procured from the Zimmer family under unlawful duress by the DCP&P. 107. The DCP&P and Marchese have failed and/or refused to respond to the demands in the January 30, 2015 letter from the Zimmers’ legal counsel that they produce the purported legal authority under which DCP&P conducted its search and interrogation of the Zimmers. 108. In fact, DCP&P’s letter dated March 9, 2015 is an unlawful attempt to mischaracterize DCP&P’s Un-Constitutional investigation of the Zimmers in violation of their Fundamental Constitutional Right to be free from unlawful investigations performed under color of state law that threaten removal of children from parents by state agencies, where there is no reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse. 109. In fact, DCP&P’s letter dated March 9, 2015 is an unlawful attempt to characterize DCP&P’s Un-Constitutional investigation and Un-Constitutional search of the Zimmers’ home under threat of removal of the child for allegedly “improper homeschooling” as an attempt by DCP&P to offer to the Zimmers purportedly beneficial “services” it could provide the Zimmers. 110. In fact, DCP&P never even offered any specific “services” that it could provide the Zimmers. 111. In fact, DCP&P employed Un-Constitutional government coercion in an attempt to impose its “services” upon the Zimmers in violation of the First and Fourteenth Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 16 of 28 PageID: 282939 Amendments. 112. In fact, Marchese and the DCP&P never stated to the Zimmers what type of homeschooling of Christopher Zimmer, Jr. they were allegedly not performing “correctly”. 113. In fact, the DCP&P’s characterizing the investigation of the Zimmer family as a “second tier” investigation that did not involve abuse or neglect, demonstrates that the Defendants knew there was no probable cause of abuse or neglect and that it had no authority to justify its intrusive and coercive investigation of the Plaintiffs. 114. In fact, DCP&P’s investigation into the Zimmer family was an attempt to fabricate evidence for the purposes of violating the Plaintiffs’ rights under the First, Second, Fourth, Fifth, and Fourteenth Amendments to the Constitution for the United States of America. 115. In fact, the Defendants acted without lawful jurisdiction and under the Un- Constitutional assertion of Parens Patriae authority. 116. In fact, based on the Defendants’ conduct as set forth supra, Plaintiffs are in reasonable and substantial fear that the Defendants will again act against them without lawful jurisdiction unless an injunction issues from this Court enjoining the Defendants from future Un-Constitutional conduct. 117. In fact, based on the Defendants’ conduct as set forth supra, the Plaintiffs have been injured by the Defendants’ Un-Constitutional conduct and there is a real and immediate danger that DCP&P will continue and repeat its Un-Constitutional conduct and cause further and more permanent injury to the Zimmers. Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 17 of 28 PageID: 282940 FIRST CLAIM FOR RELIEF 42 U.S.C.A. §1983 - VIOLATION OF FIFTH AMENDMENT AND FOURTEENTH AMENDMENT RIGHTS BY DEFENDANTS, THE DIVISION OF CHILD PROTECTION AND PERMANENCY, LISA VON PIER AND ALLISON BLAKE 118. Plaintiffs Christopher Zimmer, Sr. and Nicole Zimmer incorporate by reference the allegations contained in the above paragraphs, as though fully set forth here. 119. The Defendants, The Division of Child Protection and Permanency (formerly the Division of Youth and Family Services, “DYFS”), Lisa Von Pier and Allison Blake are charged with the responsibility and duty to protect and serve the public by properly hiring, supervising, training, disciplining and controlling child protective service workers under their command. 120. This responsibility includes promulgation and enforcement of rules and regulations regarding avoidance of threats and abuse of process in the investigation of allegations of child abuse. 121. On information and belief, Defendants DCP&P, Lisa Von Pier and Allison Blake, failed to promulgate adequate rules and regulations regarding avoidance of threats and abuse of process in the investigation of allegations of child abuse and further failed to instruct, discipline and train in the appropriate methods for handling and investigating allegations of child abuse without resorting to threats and abuse of process. 122. On information and belief, Defendants DCP&P, Lisa Von Pier and Allison Blake, established through tacit authorization or explicit instruction a policy or custom of allowing DCP&P workers to commit abuse of process. That policy was enacted and enforced with deliberate indifference to the constitutional rights of Plaintiffs. Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 18 of 28 PageID: 282941 123. Plaintiffs have been harmed by such policy. 124. Such policy is violative of Plaintiffs’ due process rights under the Fifth Amendment, which states in pertinent part that no person shall “be deprived of life, liberty, or property, without due process of law . . .” and the Fourteenth Amendment, which states in pertinent part that no State may “deprive any person of life, liberty, or property, without due process of law . . .”, to the Constitution of the United States of America. 125. This development, implementation, and carrying out of a policy, practice, procedure, or custom amounts to cruel and unusual punishment and a deprivation of life and liberty under 42 U.S.C. Section 1983. WHEREFORE, Plaintiffs, Christopher Zimmer, Sr. and Nicole Zimmer, respectfully demand judgment against the Defendants, The Division of Child Protection and Permanency, Lisa Von Pier and Allison Blake, jointly and severally: A) For Injunctive Relief in the form of an order requiring that the explicit instruction and policy be made requiring DCP&P workers to refrain from abuse of process. SECOND CLAIM FOR RELIEF 42 U.S.C.A. § 1985 - CONSPIRACY TO VIOLATE CIVIL RIGHTS 126. Plaintiffs incorporate by reference the allegations contained in paragraphs above, as though fully set forth here. 127. Defendants reached a meeting of the minds amongst themselves that incidents of abuse of process would be tolerated notwithstanding the constitutional implications of such abuse and the likelihood such conduct would be repeated. Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 19 of 28 PageID: 282942 128. On information and belief, this meeting of the minds can be proven through Defendants incidents of abuse of process and from the repeating of that conduct in an effort to deny Plaintiffs rights of due process. 129. These conspiracies constituted and continue to constitute ongoing violations of 42 U.S.C. Section 1985. WHEREFORE, Plaintiffs, Christopher Zimmer, Sr. and Nicole Zimmer, respectfully demand judgment against the Defendants, The Division of Child Protection and Permanency, Lisa Von Pier, Michelle Marchese and Monique Dykes, jointly and severally, molded by the Court to maximize the financial recovery available to Plaintiffs in light of the caps on certain damages set forth in applicable federal and state law and for: A) Damages in the amount of $10,000,000.00; and B) Punitive Damages in the amount of $50,000,000.00; and C) Awarding counsel fees to Plaintiff’s legal counsel; and D) Awarding Costs of Suit; and E) Interest; and F) Damages for Pain and Suffering; and G) For such other relief as the Court may determine to be appropriate. THIRD CLAIM FOR RELIEF 42 U.S.C.A. §1983 - VIOLATION OF DUE PROCESS AND EQUAL PROTECTION RIGHTS BY DEFENDANTS 130. Plaintiffs, Christopher Zimmer, Sr. and Nicole Zimmer incorporate by reference the allegations contained in paragraphs above as though fully set forth here. 131. The acts and/or omission of Defendants in this case were performed under color Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 20 of 28 PageID: 282943 of law and deprived Plaintiffs of their First, Second, Fourth, Fifth, and Fourteenth Amendment rights under the United States Constitution to due process, compulsory process, equal protection, and freedom from interference with their fundamental rights as parents without due process of law. 132. By virtue of this policy and conduct, Plaintiffs’ rights under the Fourteenth Amendment to the Constitution of the United States of America, have been violated. 133. Defendants’ acts and omissions furthermore interfered with Plaintiffs’ fundamental rights to privacy and freedom from excessive interference with raising a family. 134. Defendants’ acts and/or omissions were a moving force behind an objectively unreasonable abuse of process against Plaintiffs resulting in the above-referenced Constitutional violations. 135. The acts and/or omission of defendants in this case were performed under color of law and deprived Plaintiffs of their First, Second, Fourth, Fifth, and Fourteenth Amendment rights under the United States Constitution to due process and equal protection. 136. This development, implementation, and carrying out of a policy, practice, procedure, or custom amounts to cruel and unusual punishment and a deprivation of life and liberty under 42 U.S.C. Section 1983. WHEREFORE, Plaintiffs, Christopher Zimmer, Sr. and Nicole Zimmer, respectfully demand judgment against the Defendants, The Division of Child Protection and Permanency, Lisa Von Pier, Michelle Marchese and Monique Dykes, jointly and severally, molded by the Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 21 of 28 PageID: 282944 Court to maximize the financial recovery available to Plaintiffs in light of the caps on certain damages set forth in applicable federal and state law and for: A) Damages in the amount of $10,000,000.00; and B) Punitive Damages in the amount of $50,000,000.00; and C) Awarding counsel fees to Plaintiff’s legal counsel; and D) Awarding Costs of Suit; and E) Interest; and F) Damages for Pain and Suffering; and G) For such other relief as the Court may determine to be appropriate. FOURTH CLAIM FOR RELIEF 42 U.S.C.A. §1983 VIOLATION OF FIRST, SECOND, FOURTH, FIFTH AND FOURTEENTH AMENDMENTS BY DEFENDANTS 137. Plaintiffs, Christopher Zimmer, Sr. and Nicole Zimmer incorporate by reference the allegations contained in paragraphs above, as though fully set forth here. 138. Any and all acts and omissions of Defendants, alleged in this complaint, constitute actions or omissions under the color and pretense of the laws, statutes, ordinances, regulations, customs, and usage of DCP&P. 139. Defendants owed a duty to protect and serve the public, including Plaintiffs and those similarly situated. 140. Under the circumstances as they existed in this case these Defendants had a duty to not commit abuses of process. 141. Defendants were acting under color of state law, instituted and followed policies, Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 22 of 28 PageID: 282945 procedures in a manner that directly resulted in the objectively unreasonable abuse of process against Plaintiffs resulting in injury. 142. Defendants in acting under color of state law, acted with deliberate and unreasonable conduct in violation of clearly established law of which a reasonable child protective services worker should have known. 143. In these above-stated actions, Defendants caused Plaintiff to be deprived of rights, privileges, and immunities, as those rights are secured under the First (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”), Second (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”), Fourth (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause . . . .”); Fifth (no person shall “be deprived of life, liberty, or property, without due process of law . . .” ), and Fourteenth Amendment (“deprive any person of life, liberty, or property, without due process of law . . .” and “no state shall ... deny to any person within its jurisdiction the equal protection of the laws”) Amendments to the United States Constitution. 144. In these above-stated actions, Defendants caused Plaintiffs to be deprived of their rights, privileges, and immunities to be free from excessive interference with family relationships and to due process, as those rights are secured under the Fifth and Fourteenth Amendments to the United States Constitution. Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 23 of 28 PageID: 282946 145. As a direct and proximate result of the acts and omissions described in this complaint, Defendants are liable in damages to Plaintiffs for deprivation of their rights under 42 U.S.C.A. §1983. WHEREFORE, Plaintiffs, Christopher Zimmer, Sr. and Nicole Zimmer, respectfully demand judgment against the Defendants, The Division of Child Protection and Permanency, Lisa Von Pier, Michelle Marchese and Monique Dykes, jointly and severally, molded by the Court to maximize the financial recovery available to Plaintiffs in light of the caps on certain damages set forth in applicable federal and state law and for: A) Damages in the amount of $10,000,000.00; and B) Punitive Damages in the amount of $50,000,000.00; and C) Awarding counsel fees to Plaintiff’s legal counsel; and D) Awarding Costs of Suit; and E) Interest; and F) Damages for Pain and Suffering; and G) For such other relief as the Court may determine to be appropriate. FIFTH CLAIM FOR RELIEF 42 U.S.C.A. §1983 - RETALIATION FOR PROTECTED ACTIVITY 146. Plaintiffs Christopher Zimmer, Sr. and Nicole Zimmer incorporate by reference the allegations contained in above paragraphs, above, as though fully set forth here. 147. Plaintiffs have maintained their familial relationships and educated their child consistent with their Constitutional Rights under the First and Fourteenth Amendments. 148. Plaintiffs have held legal possession of firearms under the Second Amendment. 149. Defendants’ Un-Constitutional conduct was done solely to deprive the Plaintiffs Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 24 of 28 PageID: 282947 of their rights under the First, Second and Fourteenth Amendments. 150. The above-described acts done by Defendants were in excess of any authority granted them by law, and were without justification or excuse in law. 151. Defendants acted willfully, knowingly, and purposely, with the specific intent of depriving Plaintiffs of their rights. 152. The acts of Defendants did in fact deny Plaintiffs their rights as those rights are secured to Plaintiffs in the First, Second and Fourteenth Amendments to the United States Constitution and in 42 U.S.C.A. §1983. 153. As a result of the actions of Defendants, Plaintiffs have been damaged and have incurred great emotional distress, mental anguish, undue hardship, humiliation, inconvenience, and loss of enjoyment of life. 154. As a further direct and proximate result of the above-described unlawful conduct of Defendants, Plaintiffs will be required to expend money for legal costs and to secure recovery for damages incurred, in an amount not yet ascertained. WHEREFORE, Plaintiffs, Christopher Zimmer, Sr. and Nicole Zimmer, respectfully demand judgment against the Defendants, The Division of Child Protection and Permanency, Lisa Von Pier, Michelle Marchese and Monique Dykes, jointly and severally, molded by the Court to maximize the financial recovery available to Plaintiffs in light of the caps on certain damages set forth in applicable federal and state law and for: A) Damages in the amount of $10,000,000.00; and B) Punitive Damages in the amount of $50,000,000.00; and C) Awarding counsel fees to Plaintiff’s legal counsel; and D) Awarding Costs of Suit; and Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 25 of 28 PageID: 282948 E) Interest; and F) Damages for Pain and Suffering; and G) For such other relief as the Court may determine to be appropriate. SIXTH CLAIM FOR RELIEF (New Jersey Civil Rights Act) 155. The foregoing paragraphs are incorporated herein in their entirety as if set forth in full. 156. Defendants have proximately caused the Plaintiffs to suffer the deprivation of substantive due process, equal protection rights, privileges and/or immunities secured by the Constitution and/or laws of the United States, and substantive rights, privileges or immunities secured by the Constitution of the United States of America and the laws of the State of New Jersey, by their interference with the rights of the Plaintiffs. 157. By virtue of the foregoing acts, defendants have violated Plaintiffs’ rights under Section 10:6-2 of the New Jersey Statutes (the New Jersey Civil Rights Act), as a result which Plaintiffs has been damaged. WHEREFORE, Plaintiffs, Christopher Zimmer, Sr. and Nicole Zimmer, respectfully demand judgment against the Defendants, The Division of Child Protection and Permanency, Lisa Von Pier, Michelle Marchese and Monique Dykes, jointly and severally, molded by the Court to maximize the financial recovery available to Plaintiffs in light of the caps on certain damages set forth in applicable federal and state law and for: A) Damages in the amount of $10,000,000.00; and B) Punitive Damages in the amount of $50,000,000.00; and Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 26 of 28 PageID: 282949 C) Awarding counsel fees to Plaintiff’s legal counsel; and D) Awarding Costs of Suit; and E) Interest; and F) Damages for Pain and Suffering; and G) For such other relief as the Court may determine to be appropriate. DAMAGE CLAIMS AS AGAINST ALL DEFENDANTS PUNITIVE DAMAGES 158. Plaintiffs incorporate by reference the allegations contained in paragraphs above, as though fully set forth here. 159. In addition to compensatory damages, Plaintiffs hereby make a claim for punitive damages against Defendants in an amount to be proven at trial for the willful and wanton acts and omissions of Defendants, to include violation of Plaintiffs’ civil rights, as alleged in this complaint. 160. The acts and omissions of Defendants in this case were so gross and culpable in nature that they constitute reckless indifference and wanton disregard for the law and for the lives and safety of others, including Plaintiffs. 161. Defendants committed the acts and omissions alleged in this complaint and subjected Plaintiffs to improper treatment that caused Plaintiffs to suffer emotional distress so severe that no person should be expected to endure it. 162. Defendants’ actions should be punished, and an example should be made so that these actions and omissions are not repeated. 163. The recovery of punitive damages is permitted under the federal civil rights Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 27 of 28 PageID: 282950 statutes for reckless and callous indifference to the federally protected rights of others, and is thus appropriate in this case. 164. This instance of reckless and callous indifference to Plaintiffs’ safety and constitutional rights should be punished through the imposition of punitive damages so as to make an example of conduct that must not be tolerated. ATTORNEY’S FEES 165. Plaintiffs incorporate by reference the allegations contained in paragraphs above, as though fully set forth here. 166. As a result of Defendants’ actions as alleged in this complaint, Plaintiffs have been required to retain the service of attorneys and are entitled to a reasonable amount for attorney’s fees pursuant to 42 U.S.C.A. §1988 for those violations covered by the Civil Rights Act. DAMAGES 167. Plaintiffs incorporate by reference the allegations contained in paragraphs above, as though fully set forth here. 168. The acts and omissions of Defendants as set forth above have resulted in injury to Plaintiffs. 169. By virtue of these injuries, Plaintiffs are entitled to the following damages from all defendants: a) For Injunctive Relief in the form of an order requiring that the explicit instruction and policy be made requiring DCP&P workers to refrain from abuse of process; and b) Compensatory Damages in the amount of $10,000,000.00; and c) Punitive damages in $50,000,000 or a reasonable amount that is sufficient to adequately Case 3:33-av-00001 Document 9762 Filed 04/09/15 Page 28 of 28 PageID: 282951
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