                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-2000

Nicini v. Morra
Precedential or Non-Precedential:

Docket 98-5193




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

Recommended Citation
"Nicini v. Morra" (2000). 2000 Decisions. Paper 101.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/101


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed May 19, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-5193

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

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

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

(Filed: May 19, 2000)
        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

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 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

                                 2
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
_________________________________________________________________

1. See Exhibits to Nicini's Brief in Opposition to Summary Judgment at
27 [hereafter "Ex."].
2. Although the parties have not educated us as to the meaning of this
agreement, it appears that "[a] child may come into the custody of
[DYFS] and be placed in foster care pursuant to either a voluntary-
placement agreement or a court order." Matter of Guardianship of J.C.,
129 N.J. 1, 7, 608 A.2d 1312, 1314 (1992); see also N.J. Stat. Ann.
S 30:4C-11 (parent may apply for DYFS to "accept and provide such care
or custody as the circumstances . . . may require"); Monmouth County
Div. of Social Servs. on Behalf of DYFS v. C.R., 316 N.J. Super. 600, 603-
05, 720 A.2d 1004, 1006-07 (N.J. Super. 1998) (describing placement
pursuant to agreement whereby parents consented to DYFS placing child
in foster care but retained their "parental rights and legal
responsibilities," retained the right to terminate the agreement and ask
for their child's return, and agreed to make payments for the child's
care).

                               3
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 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

                               4
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
_________________________________________________________________

3. The statements in this and the following paragraph are taken from
Cyrus's deposition. Only some portions of that testimony have been
provided to us; others are summarized in the report of Dr. Eliot Atkins,
a forensic psychologist retained by Nicini in this litigation. We
designate
the latter by "expert report." Neither party has suggested that Dr.
Atkins's summary is inaccurate in this respect.

                               5
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.

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
_________________________________________________________________

4. The Morras are referred to throughout the transcript of the hearing as
the Moores, which, we presume, reflects an error in transcription. We
have therefore substituted the correct name.

                                6
       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 like I
       say that's -- right now they are not an official foster
       family, although I'm sure they would -- they would
       apply for para-foster custody if the parents are willing
       to let them.

App. at 156-57.

When Judge Segal asked Nicini's mother for her
comments, she stated as to the Morras:

       [T]hey have harbored my oldest son on several
       occasions when he had taken off . . . . I don't know
       them personally, only -- only what I had heard. My
       oldest daughter knows -- goes to school with kids that
       are friends with Eric Morra, their son, which I believe
       is 16 or 17, and I've been told that he's into drugs. I
       don't know if it's true or not, but it's just what I've
       heard. I don't know, something just seems strange
       about these people, why they would -- if they don't
       know Tony, why they would even take him in.

App. at 158.

Nicini's attorney suggested to the court, in light of these
concerns, that Nicini "should also be monitored for drugs
periodically and -- and maybe something should be looked
in with this Morra family, in light of what Mrs. Nicini had
said I think maybe a closer investigation on whether or not
that's an appropriate placement . . . ." App. at 163.

Nicini's own testimony regarding his stay with the Morras
was positive. After recounting the difficulties he experienced
with his parents and with his prior placements, Nicini
described his relationship with the Morras:

       I don't love them or anything, but they're people I can
       talk to. I mean ever since I been there almost every
       night I've been up talking to Mr. Morra, his name is
       Ed. I've been up most of the time talking to him about
       how I feel about my parents and the way I've been
       living and how I've been treated and all.

App. at 164. Nicini also told Judge Segal that the Morras
were tutoring him until he was re-enrolled in school.

                               7
Judge Segal then summarized the history of physical
abuse at the hands of Nicini's father and summarized a
report prepared by Nicini's outreach counselor (not Cyrus),
which stated that Nicini was no longer suicidal and had
made a "fine adjustment to the location where he's
presently located." App. at 166. Judge Segal ruled that
Nicini would "come[ ] under the care and supervision" of
DYFS, that he would remain with the Morras "for so long as
[DYFS] thinks that's an appropriate placement," App. at
167, and that "[u]nder no circumstances is[DYFS] to return
the boy to the home of his parents without the authority of
the Court," App. at 169. Judge Segal specifically declined to
order drug monitoring despite the request of Nicini's
attorney because there was no indication that drugs were
involved in the matter.

The record is once again sparse regarding the time period
after the February 28, 1991 Family Court hearing. On
March 11, 1991, less than two weeks after the hearing,
Cyrus forwarded to the Morras an application to become
para-foster parents. The para-foster application process, as
summarized in Cyrus's letter to the Morras, requires
completion of an application form, a financial statement, an
authorization for release of information, a police reference
form, and an agreement between the state of New Jersey,
DYFS, and the foster parent. The applicant must also
schedule a visit to DYFS for fingerprinting, and DYFS
conducts a Home Study Evaluation. The applicant's
fingerprints are used to conduct a National Crime Institute
Check (NCIC). The Morras never returned the application,
and, as we know from hindsight, there was no opportunity
for Cyrus to follow up.

On March 15, 1991, four days after Cyrus sent the
application to the Morras, Nicini fled the Morra home. He
later told investigators that since the second or third day of
his arrival there, Edward Morra had been providing him
with drugs and alcohol and assaulting him sexually.
Further investigation revealed that Edward Morra had been
convicted in New York in 1975 for corrupting the morals of
a minor and for distribution of controlled substances to
minors.5 In March 1994, following the events described
_________________________________________________________________

5. The record does not reveal the exact nature of Edward Morra's New
York conviction. Nicini's brief on appeal characterizes it as corrupting

                               8
here, Edward Morra was convicted in New Jersey of sexual
assault and is currently serving a forty-year state prison
term with a period of parole ineligibility of twenty years.

On May 19, 1995, Nicini filed suit in the United States
District Court for the District of New Jersey against Edward
Morra, the New Jersey Department of Human Services
("DHS"), DYFS, and Cyrus. Nicini alleged a substantive due
process violation pursuant to 42 U.S.C. S 1983 and various
state tort law violations. In particular, Nicini alleged that
Cyrus "had actual and/or constructive knowledge" of
objections by Nicini's parents that "awarding custody to
defendant, Edward Morra, was inappropriate in that .. .
[he] permitted illicit narcotic and alcoholic use by minors at
his residence." App. at 136, 137. Nicini also alleged that
Cyrus "failed to fully and properly investigate the
background of Morra before [placing him] . . . in Morra's
care" and that Cyrus "had access to or could have
requested an authorization from Morra to conduct a
criminal record background check." App. at 137. Nicini
further alleged that DHS and DYFS had a policy and
practice that "no criminal background check would be
conducted of voluntary guardians of children in the custody
of defendants if the guardian was a resident of the State of
New Jersey." App. at 140.

By order dated May 29, 1996, the District Court
dismissed all claims against DHS, DYFS, and Cyrus in his
official capacity based on Eleventh Amendment immunity.
Although Nicini's complaint did not explicitly seek damages
against Cyrus in his individual capacity, the court
construed it as stating such a claim. The court held that
Cyrus was not entitled to Eleventh Amendment immunity
and denied his requests for absolute and qualified
immunity on the section 1983 claim. The court also held
_________________________________________________________________

the morals of a minor and distributing controlled substances to minors.
Nicini's complaint in this action, however, alleges Morra was convicted of
sexual abuse of a minor, endangering the welfare of a minor, and
distributing illicit drugs to a minor. The District Court's opinion
describes Morra's conviction as for endangering the welfare of a child.
The precise nature of Morra's conviction is irrelevant to the result we
reach.

                               9
that Cyrus's request for immunity under New Jersey law as
to Nicini's state law claims was premature.

After discovery, Cyrus moved for summary judgment. In
support, he submitted an affidavit in which he stated that
he conducted a PERP check with the DYFS Central registry
as required by DYFS policy when a child is in a home
which is not a DYFS placement, that the PERP check
revealed no criminal information regarding the Morras, and
that a more complete criminal background check was
unavailable to him at that time. Nicini filed no counter
affidavit with respect to those averments.

In an order dated October 29, 1997, the District Court
granted summary judgment for Cyrus, holding that Nicini
had failed to establish a constitutional violation and that
his state law claims were barred by qualified immunity
under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et
seq. The court found, inter alia, that"DYFS policies only
require a PERP check of families not associated with the
state foster care program, and Cyrus conducted such a
check." Nicini v. Morra, Civ. No. 95-2303, slip op. at 13
(D.N.J. Oct. 29, 1997) [hereafter "Slip op"]. The court held
that the facts adduced by Nicini, even when viewed most
favorably to him, failed to demonstrate that Cyrus"knew or
suspected the threat of sexual abuse which awaited plaintiff
in the Morra home." Slip op. at 15. The court held that, at
most, Cyrus was negligent and that negligence was
insufficient to establish section 1983 liability or to defeat
the New Jersey statutory immunity.

Nicini's claims against Edward Morra proceeded and, on
February 11, 1998, the court granted Nicini's motion for a
default judgment against Morra. The case was then referred
to a Magistrate Judge to conduct a hearing to determine
the amount of Nicini's damages. In an order dated March 6,
1998, the Magistrate Judge entered judgment by default
against Morra and awarded Nicini $500,000 in
compensatory and $500,000 in punitive damages. The
Magistrate Judge, pursuant to the District Court's orders of
May 29, 1996 and October 29, 1997, also entered judgment
in favor of the other defendants.

Nicini appealed from the order of March 6, 1998.
Although his notice of appeal stated his intent to challenge

                                10
the court's May 29, 1996 order dismissing the claims
against DHS, DYFS, and Cyrus in his official capacity, as
well as the court's October 29, 1997 order granting
summary judgment in favor of Cyrus in his individual
capacity, Nicini has limited his challenge before us to the
latter order. We have jurisdiction to review thefinal order of
the District Court pursuant to 28 U.S.C. S 1291.

II.

STANDARD OF REVIEW

We review an order granting summary judgment de novo,
applying the same standard used by the District Court. See
Sheet Metal Workers' Int'l Assoc. Local 19 v. Herre Bros.,
Inc., 201 F.3d 231, 239 (3d Cir. 1999). We may affirm the
District Court on any grounds supported by the record. See
Hedges v. Musco, 204 F.3d 109, 116 (3d Cir. 1999).
Summary judgment is proper where the pleadings,
depositions, answers to interrogatories, admissions, and
affidavits show there is no genuine issue of material fact
and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). In conducting our
review, we view the record in the light most favorable to
Nicini and draw all reasonable inferences in his favor.

III.

NICINI'S SECTION 1983 CLAIM

To establish a claim under 42 U.S.C. S 1983, a plaintiff
must demonstrate a violation of a right protected by the
Constitution or laws of the United States that was
committed by a person acting under the color of state law.
See Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
The first step in evaluating a section 1983 claim is to
"identify the exact contours of the underlying right said to
have been violated" and to determine "whether the plaintiff
has alleged a deprivation of a constitutional right at all."
County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5
(1998).

                                11
Nicini's section 1983 claim rests on the Due Process
Clause of the Fourteenth Amendment. He invokes the
substantive component of due process, which "protects
individual liberty against `certain government actions
regardless of the fairness of the procedures used to
implement them.' " Collins v. City of Harker Heights, Tex.,
503 U.S. 115, 125 (1992) (quoting Daniels v. Williams, 474
U.S. 327, 331 (1986)). Specifically, Nicini alleges that
Cyrus, acting under color of state law, deprived him of "the
right to be free from the infliction of unnecessary pain or
abuse . . . and the fundamental right to physical safety."
App. at 52 (Nicini's brief in opposition to summary
judgment).

In denying Cyrus's request for qualified immunity on that
claim, the District Court interpreted Nicini to assert a right
"to be free from deprivation of liberty by reason of a foster
care placement preceded by an investigation so lacking in
thoroughness and precision that it can be said to shock the
conscience," and held that such a right was clearly
established at the time of Cyrus's alleged violation. App. at
95. Indeed, Cyrus does not dispute that the rights Nicini
asserts are protectable under section 1983. Cf. DeShaney v.
Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195
(1989) (right to " `free[dom] from . . . unjustified intrusions
on personal security' ") (quoting Ingraham v. Wright, 430
U.S. 651, 673 (1977)). Nor does Cyrus dispute that he was
acting under color of state law. He contends, however, that
Nicini has not established a constitutional violation because
"[t]here is no way that Mr. Cyrus should or could have
known about the tragic events that would occur at the
Morra home." Appellee's Br. at 13. Nicini replies that Cyrus
violated his constitutional rights by "fail[ing] to conduct a
full and complete investigation of Morra . . . ." Appellant's
Br. at 16. Nicini's argument relies on the principle that "a
state's role in `placing children in foster homes' gives rise to
a constitutional right of protection to the child . . . ."
Appellant's Br. at 13. Although Cyrus does not contest that
proposition, we must first determine whether this principle
is valid, an open question in this circuit.

A.

As a general proposition, a state's failure to protect an
individual against private violence does not constitute a

                               12
violation of due process. DeShaney, 489 U.S. at 202. Thus,
in DeShaney the Court held that a child who was beaten so
severely by his father that he suffered permanent brain
damage did not have a claim against the state agency for
violation of his substantive due process rights by failing to
remove him from his father's custody although agency
personnel had reason to know of the abuse. However, the
Court recognized that "in certain limited circumstances the
Constitution imposes upon the State affirmative duties of
care and protection with respect to particular individuals."
Id. at 198. As examples of situations in which the state has
such a duty, the Court cited its decision in Estelle v.
Gamble, 429 U.S. 97 (1976), which held that the Eighth
Amendment's prohibition against cruel and unusual
punishment required the state "to provide adequate medical
care to incarcerated prisoners," DeShaney, 489 U.S. at 198,
and Youngberg v. Romeo, 457 U.S. 307 (1982), which held
that substantive due process "requires the State to provide
involuntarily committed mental patients with such services
as are necessary to ensure their `reasonable safety' from
themselves and others," DeShaney, 489 U.S. at 199
(citation omitted).

The state's affirmative "dut[y] of care and protection," id.
at 198, in those cases stemmed "not from the State's
knowledge of the individual's predicament or from its
expressions of intent to help him, but from the limitation
which it has imposed on his freedom to act on his own
behalf." Id. at 200. In holding that the state did not have
such a "special relationship" with Joshua DeShaney, the
Court explained that "[w]hile the State may have been
aware of the dangers that Joshua faced in the free world,
it played no part in their creation, nor did it do anything to
render him any more vulnerable to them." Id. at 201.6
_________________________________________________________________

6. Courts have seized upon this language in DeShaney to fashion
another exception to the general rule absolving state actors of liability
for
harm caused by private parties: the state-created danger theory. This
theory is "predicated upon the states' affirmative acts which work to
plaintiffs' detriments in terms of exposure to danger" rather than upon
a special relationship between the state and the victim. D.R. v. Middle
Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1374 (3d Cir. 1992)
(en banc). Nicini has not argued in this case that we should apply the
state-created danger theory. Rather, he has proceeded solely under the
"special relationship" theory.

                               13
Of particular significance to the matter before us, the
Court also suggested that "[h]ad the State by the affirmative
exercise of its power removed Joshua from free society and
placed him in a foster home operated by its agents, we
might have a situation sufficiently analogous to
incarceration or institutionalization to give rise to an
affirmative duty to protect." Id. at 201 n.9. The Court noted
that several courts of appeals had already found such a
duty in the foster care context but declined to comment on
the merit of those decisions. See id. (citing Doe v. New York
City Dep't of Social Servs., 649 F.2d 134 (2d Cir. 1981);
Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987) (en
banc)).

After DeShaney, many of our sister courts of appeals held
that foster children have a substantive due process right to
be free from harm at the hands of state-regulated foster
parents. See, e.g., Lintz v. Skipski, 25 F.3d 304, 305 (6th
Cir. 1994); Norfleet v. Arkansas Dep't of Human Servs., 989
F.2d 289, 293 (8th Cir. 1993); Yvonne L. v. New Mexico
Dep't of Human Servs., 959 F.2d 883, 891-93 (10th Cir.
1992); K.H. v. Morgan, 914 F.2d 846, 848-49 (7th Cir.
1990). These courts have accepted the analogy between
persons the state places in foster care and those it
incarcerates or institutionalizes. See, e.g., K.H., 914 F.2d at
849 ("Once the state assumes custody of a person, it owes
him a rudimentary duty of safekeeping . . ."); Yvonne L.,
959 F.2d at 891-93 (discussing and approving cases
imposing liability in foster care context).

We have suggested, although never directly held, that
state actors owe a duty to children placed in foster care. In
D.R., 972 F.2d at 1368-73, we held that a public high
school student who was allegedly sexually molested by
other students during school hours could not maintain a
claim against school officials based on a "special
relationship" theory. We held that public high school
students were not comparable to prisoners or the
involuntarily committed because "parents remain the
[students'] primary caretakers," id. at 1371, and because
students "may turn to persons unrelated to the state for
help on a daily basis," id. at 1372. We also noted that this
court has principally read DeShaney as "setting out a test

                               14
of physical custody." Id. at 1370. For this proposition, we
cited our decisions in Philadelphia Police & Fire Association
for Handicapped Children, Inc. v. City of Philadelphia, 874
F.2d 156, 168 (3d Cir. 1989) (refusing to apply the special
relationship exception to impose upon the state an
affirmative duty "to protect the mentally retarded living at
home"), and Fialkowski v. Greenwich Home for Children,
Inc., 921 F.2d 459 (3d Cir. 1990) (entity that performed
mental health intake services for the county and which
referred plaintiffs' mentally retarded adult son owed him no
affirmative duty of care because his parents voluntarily
placed him in the institution and were free to remove him).

In D.R., we recognized that "some courts have imposed a
constitutional duty to protect foster children by analogy to
involuntarily institutionalized individuals," 972 F.2d at
1372, and stated, albeit in dictum:

       A relationship between the state and foster children
       arises out of the state's affirmative act in finding the
       children and placing them with state-approved
       families. By so doing, the state assumes an important
       continuing, if not immediate, responsibility for the
       child's well-being. In addition, the child's placement
       renders him or her dependent upon the state, through
       the foster family, to meet the child's basic needs.

Id. (citations omitted); see also Horton v. Flenory, 889 F.2d
454, 457 (3d Cir. 1989) (holding that DeShaney is limited
"to situations in which the state is not involved in the
harm, either as a custodian or as an actor" and that
plaintiff was functionally in state custody where he was
forcibly detained and beaten by bar owner, with police
approval).

We find our discussion in D.R. and the numerous
decisions of the other courts of appeals on this issue
persuasive. Foster children, like the incarcerated or the
involuntarily committed, are "placed . . . in a custodial
environment . . . [and are] unable to seek alternative living
arrangements." Taylor v. Ledbetter, 818 F.2d 791, 795
(11th Cir. 1987) (en banc). We now hold that when the
state places a child in state-regulated foster care, the state
has entered into a special relationship with that child

                               15
which imposes upon it certain affirmative duties. The
failure to perform such duties can give rise, under
sufficiently culpable circumstances, to liability under
section 1983.

We recognize that the analogy between foster children on
the one hand and prisoners and institutionalized persons
on the other is incomplete. For example, foster children,
especially older ones, enjoy a greater degree of freedom and
are more likely to be able to take steps to ensure their own
safety. Nonetheless, any distinctions between children
placed in foster care and the prisoners at issue in Estelle or
the institutionalized mentally retarded persons at issue in
Youngberg are matters of degree rather than of kind. See
Norfleet, 989 F.2d at 292 (although there is a closer
relationship between the state and prisoners than between
the state and foster children, "the situations are sufficiently
analogous"). In each of these cases the state, by affirmative
act, renders the individual substantially "dependent upon
the state . . . to meet [his or her] basic needs." D.R., 972
F.2d at 1372.

We are aware that Nicini came to stay with the Morras on
his own initiative and that the Morras were not officially
approved by the state as either foster or para-foster parents.7
_________________________________________________________________

7. The parties' briefs are silent as to the precise meaning of "foster"
and
"para-foster" care. At argument, we were informed that foster parents are
approved for the general placement of foster children rather than
approved for the placement of a particular child. See also N.J. Admin.
Code tit. 10, S 122B-1.4 (DYFS regulations defining foster parent as "any
person approved by the Division for the general placement of children in
his or her own home").

"Para-foster" care is not defined in the statute or regulations governing
DYFS. The current regulations, however, refer to"para care," defined as
"a service involving the placement of a child in a private family home by
anyone other than DYFS, and which DYFS approves for payment after
an approval process is completed." N.J. Admin. Code tit. 10, S 10:15-1.2.
This is similar to a definition of "para-foster care," effective March 9,
1987, contained in a DYFS Field Operations manual submitted to us as
part of the appendix in this appeal which refers to"foster care service
involving the placement of a child in a private family home by anyone
other than DYFS, regardless of whether the child is already under DYFS

                               16
However, Cyrus does not contest that Nicini was in DYFS
custody throughout the relevant period. Furthermore, the
record is replete with evidence that Nicini was substantially
dependent upon DYFS and that DYFS acquiesced in
Nicini's stay at the Morra home. At least by October 10,
1990, when Nicini's father signed a foster care placement
agreement, DYFS was able to arrange for his foster
placement. At some point, the Superior Court of New Jersey
awarded custody of Nicini to DYFS and DHS. App. at 136.
Nicini was thereafter placed on several occasions with
DYFS-approved foster parents and with relatives. It also
appears that after the police located Nicini at the Morra
home and took him to JFK, DYFS returned him to their
home over the objections of his aunt and his father. 8 Under
these facts, we believe Nicini's situation is sufficiently
analogous to a foster care placement to fall within the
"special relationship" exception to DeShaney.

B.

Having established that Nicini has alleged a protected
interest and a sufficient relationship with the state to state
a cause of action under section 1983, we turn to the
District Court's determination that summary judgment was
appropriate because Cyrus's actions did not amount to a
_________________________________________________________________

supervision, and which DYFS approves for payment after an approval
process is completed." App. at 171. Unlike foster parents, para-foster
parents are "approved by DYFS for the income maintenance and services
to [a] particular child and not for the placement of other foster
children."
Id. Nicini does not suggest that DYFS was precluded from approving his
stay with the Morras if they were neither foster parents or para-foster
parents.

8. Livingston seems to have objected on the ground that Nicini "was a
sick boy who needed hospitalization." Ex. at 67. The DYFS incident
report that documents the objection of Nicini's father does not contain
the basis for his objection (he apparently testified at his deposition
that
he informed a DYFS caseworker named Diana Smith of his belief that
the Morra home was a "haven for runaway juveniles," App. at 250
(expert report)), but it clearly states that he agreed to weekend
placement
with the Morras. The same report states that DYFS had "custody of
Anthony through court order." Ex. at 70.

                               17
violation of Nicini's constitutional rights. We mustfirst
determine what level of conduct is egregious enough to
amount to a constitutional violation and, then, whether
there is sufficient evidence that Cyrus's conduct rose to
that level.

We begin with the decision in County of Sacramento v.
Lewis, 523 U.S. 833 (1998), where the Supreme Court
granted certiorari "to resolve a conflict among the Circuits
over the standard of culpability on the part of a law
enforcement officer for violating substantive due process in
a pursuit case." Id. at 839. In Lewis , the Court emphasized
that " `[t]he touchstone of due process is protection of the
individual against arbitrary action of government.' " Lewis,
523 U.S. at 845 (quoting Wolff v. McDonnell, 418 U.S. 539,
558 (1974)). It then noted that where the challenge is to
executive rather than legislative action, "only the most
egregious official conduct can be said to be `arbitrary in the
constitutional sense.' " Id. at 846 (quoting Collins v. Harker
Heights, 503 U.S. 115, 129 (1992)). Mere negligence is
never sufficient for substantive due process liability. See
Daniels v. Williams, 474 U.S. 327 (1986). Under Lewis,
substantive due process liability attaches only to executive
action that is "so ill-conceived or malicious that it `shocks
the conscience.' " Miller v. City of Philadelphia, 174 F.3d
368, 375 (3d Cir. 1999) (quoting Lewis, 523 U.S. at 846).

The "exact degree of wrongfulness necessary to reach
the `conscience-shocking level depends upon the
circumstances of a particular case.' " Id. at 375. At issue in
Lewis was the conduct of police officers engaged in a
pursuit, which the Court contrasted with the conduct of
prison officials who face liability under the Eighth
Amendment if they are "deliberately indifferent to the
medical needs of their prisoners." Lewis, 523 U.S. at 850
(citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The
Court noted that "[a]s the very term `deliberate indifference'
implies, the standard is sensibly employed only when
actual deliberation is practical," and "in the custodial
situation of a prison, forethought about an inmate's welfare
is not only feasible but obligatory." Id. at 851. The Court
also noted that " `the State's responsibility to attend to the
medical needs of prisoners . . . does not ordinarily clash

                               18
with other equally important governmental
responsibilities.' " Id. at 851-52 (quoting Whitley v. Albers,
475 U.S. 312, 320 (1986)).

In the police pursuit context, the issue presented in
Lewis, officers do not have "the luxury enjoyed by prison
officials of having time to make unhurried judgments, upon
the chance for repeated reflection, largely uncomplicated by
the pulls of competing obligations." Id. at 853. It followed
that "high speed chases with no intent to harm suspects
physically or to worsen their legal plight do not give rise to
liability under the Fourteenth Amendment." Id. at 854. The
Court recognized, however, that in some contexts conduct
falling within a middle range of culpability -- that is,
involving more than negligence but less than intentional
conduct -- can be shocking in the constitutional sense. As
the Court explained:

       Rules of due process are not . . . subject to mechanical
       application in unfamiliar territory. Deliberate
       indifference that shocks in one environment may not
       be so patently egregious in another . . . .

Id. at 850.

Lewis therefore makes clear that a plaintiff seeking to
establish a constitutional violation must demonstrate that
the official's conduct "shocks the conscience" in the
particular setting in which that conduct occurred. In some
circumstances, conduct that is deliberately indifferent will
shock the conscience. Indeed, in the foster care context,
most of the courts of appeals have applied the deliberate
indifference standard, although they have defined that
standard in slightly different ways. See, e.g., White v.
Chambliss, 112 F.3d 731, 737 (4th Cir. 1997) (liability if
defendant was "plainly placed on notice of a danger and
chose to ignore the danger"); Taylor, 818 F.2d at 796 (foster
child must show "actual knowledge of abuse or that agency
personnel deliberately failed to learn what was occurring in
the foster home"); Doe v. New York City Dep't of Soc. Servs.,
649 F.2d 134, 145 (2d Cir. 1981) (deliberate indifference
"cannot exist absent some knowledge triggering an
affirmative duty to act . . . . Defendants may be held liable
[for] . . . deliberate indifference to a known injury, a known
risk, or a specific duty").

                               19
In Miller, we evaluated the actions of a social worker who
after receiving allegations of abuse separated a child from
her natural parent under a standard that "exceed[ed] . . .
deliberate indifference." Miller, 174 F.3d at 375. We held
that the worker would be liable only if his conduct reached
"a level of gross negligence or arbitrariness that indeed
shocks the conscience." Id. at 375-76 (quotation omitted).
We also stressed that although "a social worker acting to
separate parent and child does not usually act in the
hyperpressurized environment of a prison riot or a high
speed chase . . ., he or she rarely will have the luxury of
proceeding in a deliberate fashion." Id. at 375. Cyrus,
unlike the social worker in Miller, had time"to make
unhurried judgments" in investigating whether to permit
Nicini to remain with the Morras. Lewis, 523 U.S. at 853.
In the context of this case, we agree that Cyrus's actions in
investigating the Morra home should be judged under the
deliberate indifference standard.9

In Farmer v. Brennan, 511 U.S. 825 (1994), the Court
clarified the deliberate indifference standard applicable in
suits challenging prison conditions under the Eighth
Amendment. It adopted a subjective standard of liability
consistent with recklessness as that term is defined in
_________________________________________________________________

9. We note that in Youngberg, the Supreme Court held that
"professional" decisionmakers would be liable for violating the
substantive due process rights of an involuntarily institutionalized
mentally retarded plaintiff if their conduct was"such a substantial
departure from accepted professional judgment, practice, or standards
as to demonstrate that the person responsible actually did not base the
decision on such a judgment." 457 U.S. at 323. We applied this test on
facts virtually identical to those in Youngberg in Shaw v. Strackhouse,
920 F.2d 1135, 1142-46 (3d Cir. 1990). See also Winston v. Children &
Youth Servs., 948 F.2d 1380, 1390-91 (3d Cir. 1991) (applying standard
to challenge by natural parents to policy granting visitation rights to
children in foster care); Yvonne L., 959 F.2d at 893-94 (Eleventh Circuit
applied the professional judgment test in the foster care context, but
emphasized test is essentially same as deliberate indifference test).

In response to our inquiry, neither Nicini nor Cyrus suggested that the
professional judgment standard is appropriate. Therefore, we do not
decide whether, consistent with Lewis, that standard could be applied to
Cyrus's conduct.

                               20
criminal law. The Court held that "a prison official cannot
be found liable . . . unless the official knows of and
disregards an excessive risk to inmate health and safety;
the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference." Id. at
837.

This case does not require us to determine whether an
official's failure to act in light of a risk of which the official
should have known, as opposed to failure to act in light of
an actually known risk, constitutes deliberately indifferent
conduct in this setting.10 We will assume arguendo that
Nicini's proposed standard of "should have known" is
applicable. Nevertheless, as Lewis makes clear, the relevant
inquiry is whether the defendant's conduct "shocks the
conscience."

Under the circumstances of this case, we cannot agree
that Cyrus's conduct meets that standard. To the contrary,
we conclude that Cyrus's conduct in investigating the
Morras amounted, at most, to negligence. For the same
reason, we need not consider whether failure to perform a
_________________________________________________________________

10. We recognize that the deliberate indifference standard applicable in
Farmer to challenges to prison conditions does not necessarily apply to
the substantive due process claims of a foster child. See City of Revere
v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (pretrial
detainees entitled under due process to "at least as great" protection as
is afforded convicted prisoners under the Eighth Amendment); Spencer v.
Knapheide Truck Equip. Co., 183 F.3d 902, 906-08 (8th Cir. 1999)
(declining to decide whether pretrial detainee's claim should be judged
by Farmer's subjective deliberate indifference standard or by objective
standard); cf. Boring v. Kozakiewicz, 833 F.2d 468, 472 (3d Cir. 1987)
(suggesting that "[t]o apply the Eighth Amendment standard to mentally
retarded persons would be little short of barbarous"). Nevertheless, we
note that after Farmer the courts of appeals have shown a tendency to
apply a purely subjective deliberate indifference standard outside the
Eighth Amendment context. See, e.g., Gant v. Wallingford Bd. of Educ.,
195 F.3d 134, 141 n.6 (2d Cir. 1999) (rejecting"should have known"
standard in due process action challenging conduct of school officials
and other defendants in responding to complaints of racial harassment
against student); Qian v. Kautz, 168 F.3d 949, 955-56 (7th Cir. 1999)
(detainee's due process claims judged by Farmer standard); Hare v. City
of Corinth, Miss., 74 F.3d 633, 648 (5th Cir. 1996) (same).

                               21
specific duty can ever amount to deliberate indifference, see
Taylor, 818 F.2d at 797; Doe, 649 F.2d at 145, as there is
no evidence that Cyrus failed to perform any required duty.

C.

The District Court held that the evidence, viewed most
favorably to Nicini, failed to establish that Cyrus's conduct
was "deliberately indifferent" to Nicini's rights. The court
held that Nicini "fail[ed] to establish that Cyrus knew or
suspected the danger that awaited [Nicini] in the Morra
home," slip op. at 12, and that "by following standard DYFS
procedures and informing a family court judge of the scope
of his investigation, Cyrus's failure to discover that
conviction does not shock the conscience or demonstrate
his deliberate indifference to or reckless disregard of
[Nicini's] constitutional rights," id. at 13.

On appeal, Nicini contends that the District Court too
narrowly construed Cyrus's responsibility by looking to
whether Cyrus knew or suspected that Morra had a history
of abusing children rather than whether Cyrus knew or
suspected that the placement was unsafe. In its opinion
granting summary judgment, the District Court stated the
exclusive focus of the complaint involved Cyrus's failure to
discover Morra's criminal background. Slip op. at 9. Even if
we accept Nicini's broader view of the complaint, it would
not change the outcome of the appeal, which still revolves
around whether Cyrus was deliberately indifferent in any
respect.

In his affidavit, Cyrus stated:

       The DYFS policies and procedures required that I
       conduct a perpretrator [sic] "PERP" check with the
       DYFS Central Registry when a child ends up at a home
       which is not a DYFS placement. I conducted one. The
       PERP check revealed no criminal information regarding
       the Morras. DYFS can not access National Crime
       Institute Check ("NCIC") . . . nor a State criminal
       background check.

App. at 145. Nicini does not argue that Cyrus failed to act
in accordance with applicable DYFS policy and procedure.

                                  22
To establish Cyrus's liability, Nicini offered only the
report of Dr. Atkins, the psychologist he proffered as an
expert, that Cyrus should have done more than was
required of him by DYFS's practices and procedures. The
relevant portion of that report states:

        In light of the information available to Frank Cyrus
       at the time of his investigation of the Morra household,
       particularly the criminal record of Morra which was a
       matter of public record and which could have been
       obtained by an appropriate national police record
       search with the permission of Morra being required by
       Cyrus prior to placement, it is the opinion of this
       clinician that this investigation was conducted with
       total indifference to all available facts that were clearly
       material to any social worker who would be called
       upon to make such a placement.

App. at 253. As is evident, Dr. Atkins believed that Cyrus
should have undertaken a national police search (which the
psychologist recognized required Morra's consent) even
though the Morras were not applicants to become an official
DYFS foster family or para-foster family. Dr. Atkins never
explained how Cyrus could have performed what the
psychologist termed the "appropriate national police record
search" without Morra's cooperation and never responded
to Cyrus's sworn statement that he could not access the
National Crime Information Center.

Unable to point to a state requirement or a DYFS policy
or procedure violated by Cyrus, Nicini argues that Cyrus
nonetheless should have been on notice that a more
detailed investigation of the Morras was required. As to the
period from the date DYFS learned where Nicini was,
February 9, 1991, and the date of the Family Court hearing
that approved Nicini's temporary placement status,
February 28, 1991, the record reveals consistent
monitoring and oversight by Cyrus and DYFS. On February
9, Nicini was located at the Morra home and, after being
taken to JFK, "was refusing to go anywhere else" than back
to the Morra home. Ex. at 69. On that day, a DYFS
caseworker visited with the Morras and made detailed notes
about the condition of the home and the Morra family's
willingness "to help Tony." Ex. at 69. Cyrus visited Nicini

                               23
twice during the following nineteen days and also made
contact by telephone during that period. An outreach
counselor also visited Nicini once a week and filed a report
that supported Cyrus's testimony at the February 28
hearing that Nicini appeared to be doing well there.

Nicini did not tell Cyrus of the sexual assaults during the
visits Cyrus made with him or during the phone
conversations Cyrus made to him while he was at the
Morra home, although the assaults began within two or
three days of Nicini's arrival there. Nicini, albeit a minor,
was not of such tender years that he was unable to
communicate this information. He was fifteen years old and
had left an earlier placement to find the Morras on his own.
Significantly, although Nicini testified at the February 28,
1991 hearing he did not inform the court of the assaults.
Nor, apparently, did he inform his attorney, who likewise
mentioned nothing of the assaults at the hearing. Thus, the
record reveals little from which Cyrus could have inferred
that Nicini faced a "substantial risk of serious harm."
Farmer, 511 U.S. at 837.

Nicini relies on two factual bases for imposition of
liability on Cyrus. He points to Cyrus's testimony at the
February 28 hearing that there was nothing the agency saw
"in terms of problems with the law." App. at 156.11 There is
nothing in the record to support Nicini's argument that
Cyrus made an affirmative representation that he"checked
out" Morra. The record reflects that Cyrus was frank and
forthright as to the extent of his inquiry into the
appropriateness of the Morra home. He advised the judge
that he had done a PERP check and advised what that
check disclosed. There is no suggestion that the judge was
unaware of the extent of investigation that the PERP check
entailed, as it appears this is a routine investigation. Cyrus
_________________________________________________________________

11. We have held that caseworkers are entitled to absolute immunity "for
their actions on behalf of the state in preparing for, initiating, and
prosecuting dependency proceedings. Their immunity is broad enough to
include the formulation and presentation of recommendations to the
court in the course of such proceedings." Ernst v. Child & Youth Servs.
of Chester County, 108 F.3d 486, 495 (3d Cir. 1997); see also Miller, 174
F.3d at 376 n.6 (immunity does not extend to investigative or
administrative acts).

                               24
testified that the Morras were not a foster care family but
that Nicini needed a stable environment before DYFS could
attempt to resolve the larger family problems. When the
court asked whether the Morras would qualify as para-
foster parents, Cyrus responded that they would but
cautioned that he had only completed the PERP check.

The other basis for Nicini's claim against Cyrus is that he
was "placed on notice" about the Morra home by the
allegations of Nicini's mother. However, Cyrus alerted the
judge to the fact that Nicini's mother objected to placement
with the Morras. When the judge asked Mrs. Nicini for her
views, she informed him of reports that the Morras' son
took drugs and that "something just seems strange about
these people" in light of their willingness to take an
unknown child into their home. App. at 158. Mrs. Nicini
voiced concern and suspicion but never made any more
specific allegations, and did not advise Judge Segal of all of
her concerns when she had the opportunity to do so. 12

Nicini argues that Cyrus should have elicited alcohol and
substance abuse through a urine analysis. But Nicini
completely ignores the fact that the judge heard Mrs.
Nicini's objections and expressly declined to require drug
monitoring as requested by Nicini's attorney because there
was "no indication that drugs are involved in this matter."
App. at 168. The judge then approved placement of Nicini
at the Morra home, specifically holding that Nicini would
"come[ ] under the care and supervision" of DYFS and that
he would remain at the Morras as long as DYFS thought it
"appropriate." App. at 167. Nicini points to nothing else in
_________________________________________________________________

12. In her deposition taken in this case years after the events, Nicini's
mother described the "objections" to which Cyrus referred at the hearing.
She testified that she spoke to Cyrus prior to the hearing on February
28, 1991 and told him of a cassette that contained a message from
Nicini in which Nicini said he was "partying and having a good time over
there drinking" at the Morras. App. at 250 (expert report). Nicini's
mother also testified that she expressed "other concerns about the
drinking and the drug use that I felt went on over there, about the
juveniles that hung around over there . . . . I expressed a lot of
concerns
to him about the Morra home and Tony's placement." Id. Nicini makes
no effort in his brief to explain his mother's failure to discuss these
allegations in more detail at the hearing.

                               25
the post-hearing period that should have put Cyrus or
DYFS on notice that continued placement with the Morras
was inappropriate.

In her vigorous dissent, our colleague would have us
second-guess Cyrus's actions from hindsight. That is not
our task. Nor is it called for in the circumstances of this
case. The dissent relies heavily on the report by Dr. Atkins
to assert that despite his compliance with DYFS policies
Cyrus should be liable for failing to engage in a"heightened
level of inquiry, interview and investigation." Dissenting Op.
at 33. But Dr. Atkins, who never interviewed the persons
involved, focuses "particularly" on Cyrus's failure to obtain
Morra's consent to a criminal background check without
pointing to specific facts from which Cyrus should have
inferred that such a check was necessary. The fact that
Nicini's "problems went well beyond those of the average
troubled juvenile" under DYFS care and supervision,
Dissenting Op. at 31, furnished Cyrus no clue about the
appropriateness vel non of the Morra home as a placement.
Given that the only reason Cyrus had to question the
appropriateness of the Morra home was the suspicions of
Nicini's mother and father,13 Nicini's insistence on
remaining at the Morra home, and Cyrus's first-hand
impression that Nicini was "doing well there," App. at 155,
an impression corroborated by Nicini's TRIS worker and by
Nicini himself at the hearing before Judge Segal, a jury
could not permissibly conclude that Cyrus's investigation
was so inadequate as to manifest deliberate indifference to
Nicini's rights.
_________________________________________________________________

13. The dissent quotes liberally from the deposition testimony of Nicini's
father but fails to mention that Nicini's father did not suggest that he
relayed these concerns to Cyrus. Indeed, it is unclear from his deposition
whether Nicini's father ever informed anyone he suspected Morra to be
a pedophile. When asked for specific details of the concerns he relayed
to an unnamed DYFS employee in "1988 give or take a year," App. at
230, Nicini's father replied: "About the placement of children into foster
care homes. My concern with my son [Danny] as far as what he was
doing. And I was trying to make them understand my form of discipline
versus another individual that he may socialize with, their parents." App.
at 231.

                               26
Nor are we persuaded by the cases cited by the dissent
in which other courts determined a jury could reasonably
find deliberate indifference because the facts in those cases
are not analogous to those in this case.14 It may be
dramatic to attempt to analogize Cyrus to a caseworker who
"allow[s] a child to starve before his eyes," Dissenting Op. at
40 n. 14, but, so far as the record reveals, there was
nothing "before [Cyrus's] eyes" that suggested that Nicini
faced a substantial risk of serious harm. To the contrary,
Nicini's TRIS worker confirmed that while at the Morra
home Nicini was no longer suicidal, no longer depressed,
and appeared to be adjusting well.

The evidence adduced by Nicini, even when interpreted
most favorably to him, not only falls short of the demanding
standard for deliberate indifference set forth in Farmer, it
also fails to establish that Cyrus was more than negligent,
if it even establishes that. The District Court did not err in
holding Nicini failed to prove a case for subjecting Cyrus to
substantive due process liability. Because the period
between the court hearing and Nicini's flight from the
Morra home was a limited one, spanning barely over two
weeks, we express no view of a caseworker's responsibility
over a longer stretch of time.

IV.

Nicini's State Law Claims

We likewise conclude that the District Court did not err
in granting summary judgment for Cyrus on Nicini's state
tort law claims based on qualified immunity. The District
_________________________________________________________________

14. For example, in Weyant v. Okst, 101 F.3d 845, 857 (2d Cir. 1996),
the officials knew plaintiff was diabetic, in insulin shock, and in need
of
immediate hospitalization, but refused to take him there. Similarly, in
Chavez v. Cady, 207 F.3d 901 (7th Cir. 2000), there was sufficient
evidence that the detainee's need for medical care was obvious to
defendants. By contrast, in Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.
1999), cert. denied, 120 S. Ct. 1673 (2000), a case not cited, the court
held summary judgment was appropriate despite a report by plaintiff 's
expert that further action was necessary, because there was no objective
evidence that plaintiff had serious need for medical care.

                               27
Court noted that "[t]he exact nature of [Nicini's] state law
claims against Cyrus is not readily apparent on the face of
his complaint," slip op. at 17, but Nicini agrees that the
court properly characterized his claims as relying on the
"same factual bases . . . which supported the 1983
actions," Appellant's Br. at 18.

Cyrus asserts that he is entitled to immunity under
section 59:3-3 of the New Jersey Tort Claims Act, which
provides that "[a] public employee is not liable if he acts in
good faith in the execution or enforcement of any law." N.J.
Stat. Ann. S 59:3-3. Negligence is insufficient to defeat the
immunity provided by section 59:3-3. See Canico v.
Hurtado, 144 N.J. 361, 365, 676 A.2d 1083, 1085 (1996)
("A public employee, although negligent, may still act in
good faith."). Instead, to overcome immunity under this
section, "a plaintiff must prove more than ordinary
negligence." Id. Summary judgment under section 59:3-3 is
appropriate if a public official establishes that his or her
"acts were objectively reasonable or that they performed
them with subjective good faith." Id.

Nicini has not argued that Cyrus is ineligible for the
immunity provided by this statute, which applies to public
officials engaged in the execution or enforcement of the law.
Rather, he contends that Cyrus's conduct amounted to
"reckless indifference." Appellant's Br. at 19. We have
concluded that Cyrus's conduct amounted, at most, to
negligence. Therefore, the District Court did not err in
granting summary judgment in his favor on the state law
claims based on qualified immunity. See B.F. v. DYFS, 296
N.J. Super. 372, 385-86, 686 A.2d 1249, 1256-57 (N.J.
Super. 1996) (DYFS employees immune for efforts to
terminate parental rights).

V.

For the foregoing reasons, we will affirm the order of the
District Court entering judgment in favor of Frank Cyrus.

                                28
RENDELL, Circuit Judge, dissenting:

The majority engages in an extensive and well-reasoned
assessment of the underlying legal principles relevant to the
substantive due process standard to be applied in this
custodial care setting. Unfortunately for Anthony Nicini,
however, the majority does not appear to have considered
whether the real-life controversy before us -- whether
Frank Cyrus's conduct actually fell below this standard --
should be heard or decided by a jury under the legal
principles it espouses. This is because Cyrus was, in the
majority's view, merely negligent, and maybe not even that.
I dissent because I believe that more than one reasonable
inference can be drawn from the facts, including an
inference of deliberate indifference that shocks the
conscience, making it inappropriate to dispose of Nicini's
case on summary judgment. See United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962) (per curiam). Having used
Nicini's case as a vehicle to explore and analyze a
particularly complicated legal standard, have we given short
shrift to, and failed to appreciate the complexities of,
applying the legal standard to the facts of the case itself? I
suggest that we have.

Nicini's story as chronicled by the majority leads neatly to
its conclusion that Cyrus was, at most, merely negligent.
But there is more than one way to view or perceive what
Cyrus did, or failed to do, in furtherance of his duty to
Nicini, who, although not of "tender years" as the majority
notes, was a suicidal and "high risk" adolescent in need of
hospitalization or intensive outpatient care.1 Due process is
contextual and due process rules should not be applied
mechanically. See, e.g., County of Sacramento v. Lewis, 523
U.S. 833, 850 (1998); Rochin v. California, 342 U.S. 165,
172 (1952). Although mere negligence is not sufficient to be
a substantive due process violation, "culpability falling
_________________________________________________________________

1. Even if the majority is correct that, as a general matter, "foster
children, particularly older ones, enjoy a greater degree of freedom and
are more likely to be able to take steps to ensure their own safety," this
assumption is hardly applicable to Nicini, a suicidal and severely
depressed victim of physical abuse who repeatedly manifested a
tendency to take actions that did not further his own safety and welfare.

                               29
within the middle range, falling from something more than
negligence but `less than intentional conduct, such as
recklessness or gross negligence' . . . is a matter for closer
calls." Lewis, 523 U.S. at 849 (citation omitted). "[T]he fact
that there can be instances where glaring negligence may
not constitute deliberate indifference does not mean that a
fact finder is barred from equating negligence of a certain
dimension with deliberate indifference." Doe v. New York
City Dep't of Social Servs., 649 F.2d 134, 143 (2d Cir.
1981). Considering the facts in the light most favorable to
Nicini, the non-movant, as we are required to do on
summary judgment, it certainly appears possible that
Cyrus's conduct might cry out "indifference" to a
reasonable jury. Indeed, whether or not a defendant's
conduct amounts to deliberate indifference has been
described as a "classic issue for the fact finder" and "a
factual mainstay of actions under S 1983." Armstrong v.
Squadrito, 152 F.3d 564, 577 (7th Cir. 1998). 2

It is hardly a struggle to present the facts in a way that
gives rise to an inference of culpability greater than mere
negligence. An unrebutted expert report in the record,
which receives scant attention in the majority opinion, does
_________________________________________________________________

2. Other courts similarly have characterized this question as one for the
fact finder when the issue is less than clear-cut. See, e.g., Weyant v.
Okst, 101 F.3d 845, 857 (2d Cir. 1996) (reversing grant of summary
judgment because a reasonable jury could infer from the record, taken
in the light most favorable to the plaintiff, that the defendants were
deliberately indifferent); Wood v. Ostrander, 879 F.2d 583, 588 n4 (9th
Cir. 1989) (reversing grant of summary judgment because defendant's
conduct could be construed to be deliberately indifferent; "a jury
presented with these facts might find Ostrander's conduct to have been
`deliberately indifferent,' `reckless,' `grossly negligent,' or merely
`negligent.' ") (citing Fargo v. City of San Juan Bautista, 857 F.2d 638,
641 (9th Cir. 1988) ("When reasonable persons may disagree as to
whether particular conduct constitutes negligence, gross negligence, or
recklessness, the question is one of fact to be decided by the jury.")).
The
Supreme Court recently likened section 1983 actions to tort claims for
purposes of Seventh Amendment application, and explained that as a
general historical matter, juries decided questions of liability, which
"preserved the jury's role in resolving what was often the heart of the
dispute between plaintiff and defendant." City of Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U.S. 687, 718-719 (1999).

                               30
much of the work for us. This 13-page, single-spaced report
of psychologist Elliott L. Atkins, Ed.D., P.A., provides a
detailed account of the facts and opines unequivocally that
Cyrus's conduct was far more egregious than the majority
suggests is conceivable. I believe that this unrebutted
expert opinion evidence by itself can, and does, create a
genuine issue of disputed fact sufficient to defeat Cyrus's
motion for summary judgment. See Thomas v. Newton Int'l
Enters., 42 F.3d 1266, 1270 (9th Cir. 1994). 3 At the very
least, however, the Atkins expert report takes us on a
guided tour through the record, including DYFS records
and Cyrus's own testimony, exposing what Cyrus knew or
should have known about Nicini and the Morras and
making it glaringly obvious that some investigation was
necessary before placing a suicidal teenager in a home
where children were permitted to "drink and party."

Atkins focuses first on Nicini's condition and particular
needs. Nicini's problems went well beyond those of the
average troubled juvenile. As such, Nicini required a
heightened level of attention by those charged with
responsibility for his care. The DYFS records depict Nicini
as the victim of repeated physical abuse at the hands of his
_________________________________________________________________

3. See generally Chavez v. Cady, 207 F.3d 901, 905 (7th Cir. 2000)
(concluding that a material fact existed as to whether the treatment
provided by the defendant was a substantial departure from accepted
professional judgment based on the substance of the defendant's
expert's testimony); Russo v. City of Cincinnati , 953 F.2d 1036, 1047
(6th
Cir. 1992) (reversing grant of summary judgment in section 1983 action
alleging failure to train police officers, and noting that "expert
testimony
may prove the sole avenue available to plaintiffs to call into question
the
adequacy of a municipality's training procedures. To disregard expert
testimony in such cases would, we believe, carry with it the danger of
effectively insulating a municipality from liability for injuries
resulting
directly from its indifference to the rights of citizens. Reliance on
expert
testimony is particularly appropriate where, as here, the conclusions rest
directly upon the expert's review of materials provided by the City
itself."). Compare Fagin v. City of Vineland , 22 F.3d 1296, 1307 (3d Cir.
1994) (en banc) (affirming grant of summary judgment in police pursuit
case, and noting that the only evidence introduced by the plaintiffs to
show arbitrary, intentional, and deliberate action by the defendants was
expert witness testimony, but their expert witness"expressly disclaimed
any such characterization" of the defendants' conduct).

                               31
father. They explain how Nicini made several attempts at
suicide and self-harm, including slashing his wrists and
stomach, drinking peroxide, and ingesting pills. App. 212-
214, 243-244. They reflect that Nicini had both long term
and recent problems of such severity as to require intensive
outpatient care, or, more likely, hospitalization. A DYFS-
paid psychiatrist's report from January 9, 1991-- shortly
before Cyrus acquiesced in Nicini's placement with the
Morras -- noted that Nicini:

       [I]s actively suicidal, in a major depression, very
       impulsive and bored. Out-patient treatment is not
       enough.

App. 245.4 Cyrus's own contact sheet entry stated:

       Worker conferred with supervisor who directed worker
       to contact Crisis (JFK) for evaluation of Anthony Nicini
       today. Worker contacted parent (Helen Nicini) and
       advised her [sic.] recommendations of Dr. Trigiani and
       parent was asked to pick Anthony up from aunt's
       home and take him to JFK Crisis - parent agreed to do
       this. Worker contacted JFK crisis and indicated that
       Dr. T's evaluation and recommendation would be faxed
       to them - this was done. Worker advised parent (Helen)
       upon request of abuse unit that she would have to stay
       with child in case he needed to be admitted.

App. 222, 245.

Atkins also explains how Nicini escaped through the
window of the JFK psychiatric unit, deciding by himself
_________________________________________________________________

4. During Nicini's family court hearing, Judge Segal reported on a
telephonic report from a TRIS worker who opined that Nicini was no
longer depressed or suicidal at that particular time and had "made a fine
adjustment to the location where he's presently located," but also
mentioned that the "the option of placement in a longer term facility like
the residential placement . . . like Ranch Hope is a very good option" and
noted that Nicini needed continuing psychotherapy and perhaps anti-
depressants "if things do not clear up for him." App. 166-167. Judge
Segal also noted that "all the doctor has is an assessment of Tony and
he doesn't have a full basis on which to make an evaluation. But he had
sufficient information from his assessment to indicate that it will be a
long time before this boy goes back home." App. 167.

                               32
that he "didn't feel like staying in the hospital." App. 164,
224-225.5 In addition to the medical evidence, Nicini's
relatives expressed concerns about Nicini's severe health to
DYFS and at the family court hearing, noting that Nicini
was not likely to voluntarily succumb to the treatment he
desperately needed. App. 160, 246- 247.6

Cyrus acceded in Nicini staying with the Morras in the
face of Cyrus's awareness of Nicini's "history of
mistreatment, physical abuse, depression, self-destructive
behavior and suicidality, as well as his protracted absence
from school . . . [and] the long-standing history of rejection,
neglect, and abuse." App. 248. Atkins explains that it
should have been -- and was -- clear to Cyrus that a
caregiver for Nicini needed to provide a secure, emotionally-
stable, and supportive environment, and needed to be able
to provide skillful and knowledgeable intervention. To
determine whether the Morras could provide such an
environment and intervention in light of Nicini's high-risk
situation likely entails a heightened level of inquiry,
interview and investigation.

As Atkins helps to document, however, Cyrus made little
or no effort to discover whether the Morra householdfit any
of the requisite characteristics. Cyrus failed to address the
most basic issues when he interviewed the Morras after
Nicini went to their home upon escaping from the hospital.
Any information about the Cyrus-Morra interview comes
from Cyrus himself because the routine written
documentation of such an interview is curiously absent
from the DYFS records.7 Cyrus could not recall if he asked
the Morras whether they had ever been arrested, convicted,
_________________________________________________________________

5. A psychologist at JFK held a bed for Nicini after he ran away, and the
police picked up Nicini at the Morra residence, yet Cyrus gave Nicini
permission not to go back to the hospital but, rather, to stay at the
Morras' home. App. 225, 246.

6. One of Nicini's aunts also stated at the hearing that she believed
Nicini had attacked her daughter: "This isn't just something that's
happened all of a sudden, it's been going on for at least a year and a
half
. . . and he doesn't mean this, he doesn't." App. 161.

7. When asked about this absence, Cyrus said that he remembered
"writing something, but I don't know if its in here or not." App. 252.

                               33
or otherwise had contact with law enforcement, nor did he
ask the Morras how long they had lived in New Jersey to
gain perspective on the helpfulness of the PERP check,
apparently because he "just didn't think to ask them that."
App. 251. Instead, Cyrus remembered asking the Morras
whether there was anything that would prevent them from
becoming foster parents, to which he received a negative
response. Cyrus did not ask what the Morras did for a
living. He did not ask whether they owned or rented their
residence. Cyrus could not even recall with certainty that
he had talked to the Morras about Nicini's mental health
history. In essence, there hardly was a meaningful
investigation, let alone a heightened inquiry, of the Morras'
fitness to be Nicini's caregivers. Does it not matter that
Cyrus failed to make inquiries fundamental to placing any
child, let alone a physically-abused and suicidal teenager in
desperate need of a stable environment? Did this conduct
merely fall below an acceptable standard, as the majority
concludes, or was Cyrus indifferent over a period of several
weeks when he should have detected a problem and when
he could and should have acted?

Cyrus would have us forgive any weaknesses in his
inquiry because "no one knew or even remotely suspected
that the Morra home was a dangerous environment," Brief
for Appellee at 14, but the undisputed facts belie Cyrus's
assertion, at least for purposes of summary judgment.
Putting aside whether Cyrus would have had reason to
suspect that the Morra home was a dangerous environment
had he asked them even one or two more basic questions,
both of Nicini's parents relayed express concerns to DYFS
about the Morras, and about placing Nicini with the
Morras. According to her deposition testimony, Mrs. Nicini
had told Cyrus prior to the family court hearing about an
answering machine cassette tape with a message to Nicini's
aunt from Nicini saying that he is "partying and having a
good time over there drinking" at the Morra residence. App.
250. Mrs. Nicini says she also made Cyrus aware in
advance of the family court hearing about:

       [M]y other concerns about the drinking and the drug
       use that I felt went on over there, about the juveniles
       that hung around over there, young kids all hours of

                               34
       the night and how Danny used to come home from that
       place. I expressed a lot of concerns to him about the
       Morra home and Tony's placement.

App. 250. Mrs. Nicini explained some of her concerns at the
family court hearing:

       And now these people that he's with now, the Morras,
       they have harbored my oldest son on several occasions
       when he had taken off, and at one point even have had
       their house surrounded and went in and got him. Now
       maybe he didn't tell these people that he was runaway
       or anything. I don't know them personally, only-- only
       what I had heard. My oldest daughter knows -- goes to
       school with kids that are friends with Eric Morra, their
       son, which I believe is 16 or 17, and I've been told that
       he's into drugs. I don't know if it's true or not, but it's
       just what I've heard. I don't know, something just
       seems strange about these people, why they would--
       if they don't know Tony, why they would even take him
       in. I'm sure that Tony knows them through my oldest
       son Danny.

App. 158-159. In light of Mrs. Nicini's concerns, Nicini's
counsel commented that "maybe something should be
looked in [sic.] with this Morra family, in light of what Mrs.
Nicini had said I think maybe a closer investigation on
whether or not that's an appropriate placement for
Anthony." App. 163.

At the hearing, Cyrus acknowledged the existence of Mrs.
Nicini's objections, but was somewhat dismissive, instead
emphasizing that the Morras had an interest in Nicini and
would not mind having him there, and that Nicini was
stable at the Morra home. App. 155-156.8 In any event, the
information provided by Mrs. Nicini to Cyrus prior to the
family court hearing apparently did not make a lasting
impression on Cyrus, as he could not articulate her
concerns about the Morras at his deposition:
_________________________________________________________________

8. Indeed, it appears that Cyrus may have characterized the Morras as
a friend of the Nicini family, although it is not entirely clear due to a
possible error in transcription. See App. 154, lines 13-14. See also App.
155 (Cyrus explaining that Nicini "found his way to the Morras, who I
guess was a friend of his.").

                               35
       [I]t seems like it is more like something that she had
       heard about him or heard about the family or
       something like that, but I don't know any specifics.

App. 250.

Mr. Nicini had expressed concerns to DYFS about the
Morras as well. According to the deposition testimony of
Nicini's father, as recounted by Atkins, Mr. Nicini told
DYFS that the Morra home was a "haven for runaway
juveniles." App. 250. DYFS records indicate that Mr. Nicini
said the Morra home was not a good placement, although
he would agree to weekend placement.9 According to Mr.
Nicini, this was not the first time he had ever relayed
concerns about the Morras, an earlier time being in
connection with Nicini's brother Danny:

       Q: If it was around 1988 give or take a year that
       Danny stayed or visited the Morra home, was it around
       that time in which you suspected that Mr. Morra was
       [sic.] pedophile?

       A: I suspected that he was exploiting children.

       Q: Did you suspect that there might be drugs in th e
       household at that time?

       A: I felt that these children were going over ther e and
       in some way they had access to drugs and alcohol.

            . . . .

       A: Around that time Danny was already involved wit h
       DYFS; is that correct?

       Q: Yes.

       A: Was his case worker Frank Cyrus at that time?

       A: I believe so.

       Q: Did you notify anyone at DYFS regarding your
       concerns that you have shared with me regarding the
       Morra household that there might have been some
       child sex there?
_________________________________________________________________

9. The DYFS record entry also reflected that Mr. Nicini was "not pleased,
Anthony not in hospital. He's going to call JFK Crisis to find out who
psychiatrist is that released child." App. 227.

                               36
       A: During what period?

       Q: You indicated that Danny might have been stayin g
       at the Morra household and that you had your
       suspicions that there might be sexual abuse or some
       type of child abuse at the home; is that correct?

       A: Yes.

       Q: Did you notify or tell anyone at DYFS about tho se
       suspicions that you had?

       A: I had mentioned it to a social worker. . . .

          . . . .

       Q: Do you recall what concerns or concern exactly you
       expressed to that person?

       A: About the placement of children into foster car e. My
       concern with my son as far as what he was doing.

App. 230-231.10

Mr. Nicini's objections apparently left even less of an
impression on Cyrus than Mrs. Nicini's, as Cyrus initially
disavowed in his deposition having any recollection of
objections by Mr. Nicini to placing his son with the Morras.
After having the aforementioned DYFS record entry read to
him, Cyrus recalled that he was likely aware of Mr. Nicini's
objection but did not bother to pursue it further:

       Q. Were you ever aware of that particular objectio n?

       A. Yeah, I think I was, now that I read this over.

       Q. Okay. Did you ever contact Mr. Nicini to discus s
       with him the basis of his objections?

       A. No.

       Q. Was there any reason for that?

       A. No. No, I think, you know, like I was saying, w e
       were feeling, you know, good about the placement
       because everything was positive, everything was
_________________________________________________________________

10. Mr. Nicini made clear in this deposition that he and his wife had
never authorized Nicini's brother Danny to stay with the Morras. App.
231.
37
       pointing toward him doing well there and becoming
       stabilized and progressing, and so we had no real
       concerns at that time about that.

App. 228.

Failing to follow up on specific concerns communicated
to him and to DYFS about the Morras as an acceptable
placement for Nicini who, only weeks beforehand, was said
to be actively suicidal and in need of hospitalization, Cyrus
advocated that Nicini stay with the Morras, about whom he
knew little or nothing, telling Judge Segal that Nicini was
stable at the Morra house, that he was "doing very well
there, no problems." App. 155.11 And, largely on the basis
of Cyrus's position and representations, Judge Segal
ordered Nicini to remain with the Morras "for so long as
[DYFS] thinks that's an appropriate placement." App. 167.
Judge Segal had asked Cyrus if the Morras' home would
qualify as a para-foster home, to which Cyrus responded
"[y]es they would." App. 156. Although Cyrus qualified his
answer by saying that the only thing he had done was a
_________________________________________________________________

11. A jury might wonder on what basis Cyrus could report to Judge
Segal that everything was positive. Cyrus's explanation seems to be
premised on an assumption, embraced by the majority to some extent,
that no further action was necessary to discharge his duties to Nicini as
long as certain parties professed to be content. Nicini claimed he liked
staying at the Morras, and, as Cyrus noted in his deposition, "Nicini
refused to go elsewhere." App. 145. The Morras were willing to have him
remain there and reported that there were "no problems." Of course,
when the Morras gave that report to Cyrus, Mr. Morra already had been
giving Nicini drugs and sexually abusing him, telling Nicini he would
have no place to go if he disclosed these activities. App. 232, 238. Could
not a jury find Cyrus's attitude to be an indictment rather than a
satisfactory explanation for Cyrus's inaction? After all, on Cyrus's
theory,
a case worker would never unearth a problem until it is too late. Should
not the concern have been the stability of the environment for this
suicidal youngster who had just climbed out the window of the
psychiatric ward, rather than whether he professed to be content there?
In light of Cyrus's weak and ineffectual -- and perhaps even indifferent
-- responses provided with respect to the numerous signposts of
potential danger with the Morra placement, it would not be difficult to
imagine a jury concluding that Cyrus's inaction rose to the level of
deliberate indifference if, during a trial, Cyrus were to provide similar
responses and to demonstrate a similar attitude.

                               38
PERP check, Cyrus assured Judge Segal that "[t]here's no
-- nothing we've seen in terms of any problem with the law
. . . . right now they are not an official foster family,
although I'm sure they would -- they would apply for para-
foster custody if the parents are willing to let them." App.
156-157. Cyrus explained again in his deposition that he
had received updates from the Morras themselves. App.
226-227.

Concluding that the "background information available to
Frank Cyrus which was completely ignored was
substantial," Atkins opines as follows at the conclusion of
his detailed report on Cyrus's handling of Nicini's case:

       The ongoing disregard of pertinent information at
       various stages of the investigation demonstrates not a
       simple negligent breach but a pattern of deliberate
       indifference to the right of Anthony Nicini to be secure
       in a safe environment and to be offered the same
       opportunity for protection/supportive services from
       DYFS as any other child.

App. 253.12

Although this expert report illustrates how the facts
could produce an inference of deliberate indifference, the
majority swiftly dismisses the relevance of Atkins' report in
its entirety, apparently based on the fact that Atkins did
not explain how Cyrus could have performed a national
police search without the permission of the Morras. 13
Interestingly, Cyrus would have obtained the requisite
permission, or been confronted with the refusal of
permission, had Cyrus conducted a proper interview at the
_________________________________________________________________

12. Atkins also opined that Cyrus's "multiple breaches constituted a
pattern of indifference to his statutory and/or professional duty such
that I conclude with a reasonable degree of psychological probability that
this pattern of conduct arose not from mere negligence but from
deliberate indifference to his obligation to conduct a proper
investigation
and directly caused the injuries claimed by Anthony Nicini." App. 242

13. The majority further characterizes the report as "focus[ing]
`particularly' " on this issue "without pointing to specific facts from
which
Cyrus should have inferred that such a check was necessary." I can only
wonder whether the majority is reading the same detailed,
comprehensive report that I have described.

                               39
outset and asked basic questions that reasonably should
have been explored before entrusting Nicini to the Morras,
such as those posed to a para-foster applicant. Yet, Cyrus
neither asked the pertinent questions, nor sought
permission to do the search, until it was too late.

The majority properly concludes, in my view, that Cyrus
and DYFS had a special relationship with Nicini and thus
were charged with affirmative duties. Nicini was in the care
and custody of the state. However, in light of its recognition
of this duty, and in light of what the facts and expert
witness testimony suggest that Cyrus knew or should have
known about Nicini and the Morras, can one so facilely
conclude as well that no reasonable jury could infer
"deliberate unconcern for plaintiff 's welfare from a pattern
of omissions revealing deliberate inattention to specific
duties imposed for the purpose of safeguarding plaintiffs
from abuse"? See Doe, 649 F.2d at 144; Taylor v. Ledbetter,
818 F.2d 791, 797 (11th Cir. 1987) (en banc) (adopting Doe
articulation of deliberate indifference and finding that a
foster child may bring a section 1983 action alleging that
government officials were deliberately indifferent regarding
her foster home placement).14 As the Supreme Court noted
in Lewis, "[w]hen such extended opportunities to do better
are teamed with protracted failure even to care, indifference
is truly shocking." Lewis, 523 U.S. at 853. By rejecting the
_________________________________________________________________

14. Although Nicini does not specifically challenge whether Cyrus
complied with certain DYFS requirements (e.g. , conducting a PERP
check), and thus Doe is distinguishable in that respect, the substantive
due process violation would be based on the state's alleged failure to
provide for basic human needs of those in its custody, see DeShaney v.
Winnebago County Dept. of Social Servs., 489 U.S. 189, 199-200 (1989),
regardless of whether the state has specifically regulated regarding all
of
those needs. Surely we do not allow states to defeat substantive due
process allegations by setting minimal standards for child welfare case
workers. Would it not violate substantive due process for a state welfare
case worker, with the requisite level of culpability, to allow a child to
starve before his eyes, notwithstanding the absence of a specific state
regulation requiring the feeding of children in the custody of the state?
In light of other evidence giving rise to a strong inference of deliberate
indifference, the fact that Cyrus took certain minimal steps required by
DYFS regulations will not, by itself, defeat that inference or remove
Cyrus's conduct from the realm of consideration.

                                40
valid competing inference clearly raised by the facts and
concluding at this juncture that Cyrus's conduct was at
most merely negligent as a matter of law, I believe the
majority has short-circuited the process of addressing
Anthony Nicini's substantive due process rights.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               41
