govinfo:USCOURTS-njd-3_18-cv-17552-2

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*NOT FOR PUBLICATION* 
 
UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
 
 
MICHAEL LASCHE and JENNIFER 
LASCHE, 
 
Plaintiffs, 
 
v. 
 
STATE OF NEW JERSEY, et al., 
 
Defendants. 
 
 
 
 
 
Civ. Action No. 18-17552 (FLW) 
 
OPINION 
 
WOLFSON, Chief Judge: 
This matter comes before the Court on a motion to dismiss Plaintiffs Michael and Jennifer 
Lasche’s (“Plaintiffs”) Second Amended Complaint for failure to state a claim pursuant to Fed. R. 
Civ. P. 12(b)(6). Plaintiffs, formerly licensed foster parents, allege that defendants Kyle Higgins, 
Katie Epperly, Mary Lippencott, and Janelle Clark ( the “Individual Defendants”), who are all 
employees of the New Jersey Division of Child Protection and Permanency (the “DCPP”) , violated 
their First Amendment rights by suspending Plaintiffs’ foster parent license because Plaintiffs shared 
their religious views regarding homosexuality with their foster children , and that the Individual 
Defendants and the DCPP (collectively, “Defendants”) also violated New Jersey antidiscrimination 
law by doing so. In a June 4, 2020 Opinion, I previously granted Defendants’ motion to dismiss 
Plaintiffs’ Amended Complaint, which asserted additional claims against Defendants under the First 
Amendment and the Equal Protection Clause of Fourteenth Amendment . Plaintiffs appealed. On 
March 1, 2022, a three -judge panel of the Third Circuit affirmed in part, vacated in part, and 
remanded the case for further review, finding that Plaintiffs had sufficient ly alleged a violation of PageID:
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their First Amendment rights due to the suspension of their foster parent license and instructing this 
Court to address the issue of qualified immunity. Plaintiffs subsequently filed their Second Amended 
Complaint, alleging only causes of action consistent with the Third Circuit’s mandate. Now, once 
again, Defendants move to dismiss under Rule 12(b)(6). Plaintiffs oppose the motion. 
For the reasons set forth herein, Defendants’ motion to dismiss is GRANTED; in lieu of 
dismissal, Plaintiffs are given leave to amend consistent with the dictates of this Opinion . Should 
Plaintiffs decline the opportunity to amend, I will remand Plaintiffs’ remaining state law claim to 
state court. 
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 
 
The relevant facts in this case are set forth in detail in this Court’s June 4, 2020 Opinion. See 
ECF No. 24; Lasche v. New Jersey, No. 18-17552, 2020 WL 2989145 (D.N.J. June 4, 2020). Because 
the factual allegations in Plaintiffs’ Se cond Amended Complaint are virtually identical to those 
previously set forth in prior versions of the complaint, a full recounting of the facts here would be 
duplicative and unnecessary. For context, a brief summary follows. 
A. Plaintiffs’ Second Amended Complaint 
 
Plaintiffs are formerly licensed foster parents who identify as “devout Christians who hold to 
traditional values and beliefs about family, marriage and sex.” ECF No. 40, Second Am. Compl. 
(“SAC”) ¶ 1. In September 2017, the DCPP informed Plaintiffs that two sisters, ages 13 (“Foster 
Child 1”) and 10 (“Foster Child 2”), were in need of a foster home placement and asked if Plaintiffs 
would be willing to care for them. Id. ¶ 8. Plaintiffs agreed. Id. 
 Throughout October and November 2017, Kyle Higgins, the DCPP case worker assigned to 
the two sisters, allegedly advised Plaintiffs that the cases were moving toward adoption and that 
Plaintiffs would be given “first choice” to adopt the girls. Id. ¶ 10. However, in late December 2017, 
Higgins informed Plaintiffs that a family in Illinois was interested in adopting both Foster Child 1 PageID:
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and 2, as well as their three siblings, who were housed elsewhere. Id. ¶ 13. When Plaintiffs and the 
two foster children asked Higgins and her supervisor, Katie Epperly, for additional information about 
the Illinois family, the two purportedly claimed not to know the answers to their questions. Id. ¶ 14. 
Subsequently, through a conversation with the other foster parents of Foster Child 1 and 2’s siblings, 
Plaintiffs learned that the potential adoptee couple “were two wealthy gay men with lots of family 
around to support them and the adoption.” Id. A few days later, during a discussion with Foster 
Child 1 at Plaintiffs’ home, Higgins “quest ioned the child about her religious beliefs concerning 
homosexuality and asked her if she would change her religious beliefs if she went with another 
family.” Id. ¶ 15. 
 To resolve the placement of the foster children, a June 4, 2018 court hearing was sc heduled 
at which a judge was to decide whether all five siblings should be adopted by the Illinois family or 
adopted by the families w ith whom they were currently placed. Id. ¶¶ 17–18. On the day of the 
hearing, Plaintiffs were informed by Foster Child 1 ’s law guardian that “the Illinois couple was off 
the table and that the judge wanted psychiatric evaluations of all the children before a permanent plan 
was put into place.” Id. ¶ 19. 
 Thereafter, Plaintiffs allege that Higgins’ attitude toward Plaintiffs “radically changed,” 
including that she proposed transitioning Foster Child 1 to the same foster home as her brother, rather 
than moving forward with adoption by Plaintiffs. Id. ¶ 21. Plaintiffs also allege several instances in 
which Higgins and others questioned Foster Child 1 about her religious beliefs and views regarding 
homosexuality. On one occasion, Foster Child 1 came home from a regularly scheduled therapy 
session and informed Plaintiffs that she was upset because her “therapist kept bringing up religion 
and told her she should not feel pressured to follow her foster family ’s religious beliefs.” Id. ¶ 20. 
Foster Child 1’s therapist later purportedly admitted to Plaintiffs that the questions about Foster Child 
1’s religious views and homosexuality were prompted by a prior conversation with Higgins. Id. ¶ PageID:
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23. Plaintiffs allege that Higgins “felt that Plaintiffs’ religious beliefs had been passed on to [Foster 
Child 1] and interfered with” placement of her and her siblings with the Illinois family. Id. ¶ 24. On 
another occasion, on June 21, 2018, Higgins picked up Foster Child 1 to visit one of her siblings and, 
along the way, allegedly interrogated Foster Child 1 about her r eligious views and desire to be 
adopted by Plaintiffs. Id. ¶¶ 25–27. Plaintiffs aver that Higgins told Foster Child 1 , among other 
things, that Plaintiffs would not be able to “meet her needs.” Id. ¶ 26. 
 On June 22, 2018, Plaintiffs spoke with Higgins and Epperly on the telephone to schedule a 
meeting regarding Foster Child 1’s future placement. Id. ¶ 29. During the call, both Higgins and 
Epperly purportedly expressed concern that Plaintiffs had passed t heir religious views regarding 
homosexuality onto Foster Child 1. Id. On June 29, 2018, Plaintiffs met with DCPP representatives, 
including the Individual Defendants. Id. ¶ 34. Plaintiffs allege that “[a]lmost the entire meeting was 
about Plaintiffs’ belief that homosexuality was a sin,” and that the DCPP representatives expressed 
concern that “Plaintiffs would reject Foster Child 1 if she ever decided to explore her sexuality.” Id. 
 A few days later, on July 2, 2018, a hearing was held before a New Jersey family court judge, 
and the DCPP sought to remove Foster Child 1 from Plaintiffs’ home. Id. ¶ 35. The next day, 
presumably pursuant to a court order, the DCPP removed Foster Child 1 from Plaintiffs’ home, and 
placed her in the same foster home as Fo ster Child 2, who had been previously transferred in April 
2018, due to confidential reasons unique to Foster Child 2. Id. ¶¶ 16, 38. 
 After Foster Child 1’s removal, on October 12, 2018, a DCPP representative visited Plaintiffs’ 
home to conduct an annual inspection, which was necessary for Plaintiffs to renew their foster parent 
license. Id. ¶ 41. Following the inspection, t he representative informed Plaintiffs that their foster 
parent license had been suspended by the Monmouth County DCPP, a fact of which Plaintiffs were 
unaware. Id. The representative allegedly told Plaintiffs that they should have been notified of the 
suspension and the bases for the suspension. Id. Plaintiffs allege that they “had been relicensed as PageID:
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foster parents on a regular basis over a 10 year period with no complaints against them,” and that 
“Defendants ignored the Rules and Regulations and did not give Plaintiffs notice as to why they were 
suspended because they did not have a legitimate non -discriminatory basis for the suspension.” Id. 
¶ 42. 
B. Procedural History 
 
On November 19, 2018, Plaintiffs filed a four -count complaint against Defendants in New 
Jersey state court, alleging violations of the New Jersey Law Against Discrimination (“NJLAD”), 
the New Jersey Civil Rights Act (“NJCRA”), 42 U.S.C § 1983, and 42 U.S.C § 1985. On December 
24, 2018, Defendants removed the matter to this Court and thereafter, moved to dismiss Plaintiffs’ 
Complaint. In my September 26, 2019 Opinion, I dismissed Plaintiff’s’ claims and granted Plaintiffs 
leave to amend their Complaint. ECF No. 14. On October 24, 2019, Plaintiff s filed an Amended 
Complaint re-asserting the Equal Protection and First Amendment claims under § 1983 and their 
§ 1985 conspiracy claim. ECF No. 16. Defendants then moved to dismiss the Amended Complaint. 
In my June 4, 2020 Opinion, I granted Defendants’ motion to dismiss in its entirety. ECF No. 24. 
Plaintiffs appealed to the Third Circuit. 
In a March 1, 2022 Unpublished Opinion, a three-judge panel of the Third Circuit affirmed 
in part and reversed in part the prior decisions of this Court dismissing Plaintiffs’ claims. See Lasche 
v. New Jersey, No. 20-2325, 2022 WL 604025 (3d Cir. Mar. 1, 2022). The Third Circuit affirmed 
the dismissal of Plaintiffs’ Equal Protection claims and Plaintiffs’ First Amendment retaliation claim 
arising from the removal of Foster Child 1. Id. at *4–8. However, the panel found that Plaintiffs had 
plausibly alleged a First Amendment retaliation claim with respect to the suspension of Plaintiffs’ 
foster parent license and reversed the dismissal of that claim and the related conspiracy claim. Id. 
In addition, the Third Circuit f ound that Plaintiffs’ claim pursuant to the NJLAD w as improperly 
dismissed on the erroneous grounds that the DCPP does not qualify as a place of public PageID:
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accommodation under the statute. Id. at *8. The panel remanded Plaintiffs’ remaining claims for 
further consideration, including whether the Individual Defendants are entitled to qualified immunity. 
Id. at *9. 
On May 12, 2022, Plaintiffs filed their Second Amended Complaint, asserting three causes 
of action arising from Defendants’ alleged suspension of Plaintiffs’ foster parent license: (i) violation 
of the NJLAD (Count I); (ii) violation of the First Amendment of the U.S. Constitution pursuant to 
42 U.S.C. § 1983 as to the Individual Defendants (Count II); and (iii) conspiracy to violate Plaintiffs’ 
First Amendment rights pursuant to 42 U.S.C. § 1985 as to the Individual Defendants (Count III). 
See SAC ¶¶ 45–59. Plaintiffs seek both injunctive relief and monetary damages. See id. Defendants 
moved to dismiss the Second Amended Complaint on July 5, 2022. ECF No. 44 (“Defs. Mot.”). 
Plaintiffs opposed the motion on August 1, 2022. ECF No. 46 (“Pls. Opp.”). Defendants filed their 
reply on August 15, 2022. ECF No. 49 (“Defs. Reply”). 
II. LEGAL STANDARD 
Courts undertake a three-part analysis when considering a motion to dismiss pursuant to Fed. 
R. Civ. P. 12(b)(6). See Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “First, the court must 
‘tak[e] note of the elements a plaintiff must plead to state a claim.’” Id. (quoting Ashcroft v. Iqbal, 
556 U.S. 662, 675 (2009)) (alteration in original). Second, the court must accept as true all of the 
plaintiff’s well-pleaded factual allegations and “construe the complaint in the light most favorable to 
the plaintiff.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quotation s omitted). 
In doing so, the court is free to ignore legal conclusions or factually unsupported accusations that 
merely state, “the-defendant-unlawfully-harmed-me.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. 
v. Twombly, 550 U.S. 544, 555 (2007)). “[M]ere restatements of the elements of [a] claim[ ] . . . are 
not entitled to the assumption of truth.” Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 
2011) (alterations in original) (quotations omitted). Finally, the court must determine whether “the PageID:
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facts alleged in the complaint are sufficient to show that the plaintiff ha s a ‘plausible claim for 
relief.’” Fowler, 578 F.3d at 211 (quoting Iqbal, 556 U.S. at 679). “The defendant bears the burden 
of showing that no claim has been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 
2005) (citation omitted). 
III. DISCUSSION 
To begin, Defendants argue that notwithstanding the fact that Plaintiffs have alleged a First 
Amendment retaliation claim based on the suspension of their foster parent license, the Individual 
Defendants are nevertheless entitled to qualified immunity. See Defs. Mot. 11–19. Next, Defendants 
assert that Plaintiffs cannot seek injunctive relief pursuant to Ex Parte Young, 209 U.S. 123 (1908) 
as a remedy because (i) Plaintiffs have not sued the Individual Defendants in their official capacities 
and (ii) Plaintiffs do not allege that the Individual Defendants have the authority to effectuate the 
injunctive relief sought. See Defs. Mot. 19–22. I find that because the constitutional rights plausibly 
alleged to have been violated by the Individual Defendants are not clearly established, the Individual 
Defendants are entitled to qualified immunity with respect to Plaintiffs’ constitutional claims for 
monetary damages. Additionally, because Plaintiffs fail to properly allege that the Individual 
Defendants have the requisite authority to enforce the injunctive relief Plaintiffs seek, Plaintiffs’ 
injunction request cannot proceed at this time. 
A. Plaintiffs’ Constitutional Claims and Qualified Immunity 
 
The Individual Defendants assert the defense of qu alified immunity to Plaintiffs’ First 
Amendment retaliation claim pursuant to § 1983 and the conspiracy claim under § 1985 regarding 
the suspension of Plaintiffs’ foster license. “Qualified immunity protects government officials from 
insubstantial claims in order to ‘shield officials from harassment, distraction, and liability when they 
perform their duties reasonably. ’” Mammaro v. N.J. Div. of Child Prot . & Permanency, 814 F.3d 
164, 168 (3d Cir. 2016) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The Supreme PageID:
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Court has “mandated a two-step sequence for resolving government officials ’ qualified immunity 
claims.” Pearson, 555 U.S. at 232. First, a court must assess wheth er the facts that a plaintiff has 
alleged demonstrate “that the official violated a statutory or constitutional right.” Aschroft v. al -
Kidd, 563 U.S. 731, 735 (2011). Second, if so, the court must determine whether “the right was 
‘clearly established’ at the time of the challenged conduct.” Id. (quoting Harlow v. Fitzgerald, 457 
U.S. 800, 818 (1982) ). “Qualified immunity is applicable unless the official ’s conduct violated a 
clearly established constitutional right. ” Pearson, 555 U.S. at 232 (citation omitted) . Before 
reaching the issue of qualified immunity, the Court must start with the threshold § 1983 question of 
personal involvement. See Chavarriaga v. N.J. Dep’t of Corr. , 806 F.3d 210, 222 (3d Cir. 2015) 
(stating that under § 1983 “ a plaintiff must demonstrate a defendant ’s personal involvement in the 
alleged wrongs”) (internal quotations and citation omitted). 
1. The Individual Defendants’ Personal Involvement in the License 
Suspension 
 
In the March 1, 2022 Opinion, the Third Circuit found that Plaintiffs sufficiently allege facts 
demonstrating a First Amendment retaliation claim . Specifically, the Third Circuit held that 
Plaintiffs (i) “plausibly allege that they engaged in constitutionally protected conduct by sharing their 
religious views on same -sex marriage with Foster Child 1 ,” (ii) “also plausibly allege that the 
individual-capacity defendants acted to remove Foster Child 1 from their care and suspended their 
foster license,” and (iii) that the facts surrounding the license suspension are “suggestive of 
retaliation.” See Lasche, 2022 WL 604025, at *5. Notably, the Third Circuit conducted its analysis 
of Plaintiffs’ retaliation claim with respect to the license suspension against the In dividual 
Defendants in tandem with Plaintiffs’ retaliation claim regarding the removal of Foster Child 1 —a 
claim which the Third Circuit affirmed dismissal of, and which Plaintiffs do not raise in their Second 
Amended Complaint. Indeed, the circuit court did not focus on allegations speaking to the Individual PageID:
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Defendants’ actions with respect to the license suspension. Thus, w hether Plaintiffs sufficiently 
alleged that the Individual Defendants were personally involved in the license suspension is an issue 
left unaddressed by the Third Circuit’s analysis. 
A threshold matter for any civil rights action is that “ a defendant’s § 1983 liability must be 
predicated on his direct and personal involvement in the alleged violation.” Williams v. City of York, 
967 F.3d 252, 261 (3d Cir. 2020); see Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (“A 
defendant in a civil rights action must have personal involvement in the alleged wrongs; liability 
cannot be predicated solely on the operation of respondeat superior.”). Moreover, “[a]llegations of 
participation or actual knowledge and acquiescence . . . must be made with appropriate particularity.” 
Rode, 845 F.2d at 1207. Yet, in finding that Plaintiffs plausibly allege a First Amendment retaliation 
claim arising from the license suspension, the Third Circuit elides this critical pleading 
requirement—focusing instead on the Individual Defendants’ personal actions with respect to the 
removal of Foster Child 1, not the subsequent license suspension. While Plaintiffs’ allegations make 
clear that the Individual Defendants were personally involved in the removal of Foster Child 1 by 
demonstrating that the Individual Defendants were intimately involved with the oversight and 
placement of Foster Child 1, Plaintiffs’ Second Amended Complaint is devoid of allegations 
indicating the Individual Defendants’ personal involvement in the suspension of Plaintiffs’ foster 
license. Thus, despite the Third Circuit’s holding, based on the Second Amended Complaint, this 
Court is unable to find that Plaintiffs have alleged sufficient facts to show a constitutional violation 
by the Individual Defendants pursuant to § 1983 due to the license suspension. Indeed, the Second 
Amended Complaint does not identify any individual with the requisite authority to suspend a foster 
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responsible for, or involved in, the suspension decision. 1 
2. Qualified Immunity 
 
But, even if Plaintiffs plausibly allege a First Amendment retaliation claim against the 
Individual Defendants, or any individuals with the requisite authority, they are entitled to qualified 
immunity because Plaintiffs cannot point to any Supreme Court or Third Circui t precedent 
demonstrating that suspension of Plaintiffs’ foster license in retaliation for imparting their religious 
views regarding homosexuality to their foster child violated a clearly established constitutional right. 
“A Government official’s conduct violates clearly established law when, at the time of the challenged 
conduct, ‘[t]he contours of [a] right [are] sufficiently clear ’ that every ‘reasonable official would 
[have understood] that what he is doing violates that right. ’” al-Kidd, 56 3 U.S. at 74 1 (quoting 
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “In other words, there must be sufficient 
precedent at the time of action, factually similar to the plaintiff ’s allegations, to put [the] defendant 
on notice that his or her conduct is constitutionally prohibited.” Mammaro, 814 F.3d at 169 (quoting 
McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001)). The analysis requires that a court “look 
first for applicable Supreme Court precedent,” but “if none exists, it may be possible that a robust 
consensus of cases of persuasive authority in the Court of Appeals could clearly establish a right for 
purposes of qualified immunity.” Id. (internal quotations and citation omitted). To be sure, “officials 
can still be on notice that their conduct violates established law even in novel factual circumstances,” 
if “the state of the law [at the time of the alleged c onduct] gave [the defendants] fair warning that 
their alleged treatment of [the plaintiff] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 
(2002). 
 
1 As discussed further infra with respect to Plaintiffs’ request for injunctive relief, without allegations 
as to who is tasked with issuing or revoking foster licenses, this Court would be unable to issue an 
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“Defining the right at issue is critical to this inquiry.” L.R. v. Sch. Dist. of Phila. , 836 F.3d 
235, 248 (3d Cir. 2016). The Supreme Court has “repeatedly told courts . . . not to define clearly 
established law at a high level of generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting al-
Kidd, 563 U.S. at 742). Rather “[t]he dispositive question is whether the violative nature of particular 
conduct is clearly established.” L.R., 836 F.3d at 248 (quoting Mullenix, 577 U.S. at 12). As such, 
the court “must frame the right in light of the specific context of the case, not as a broad general 
proposition.” Id. (internal quotations and citation omitted). 
Here, the right at issue, as framed by both the Third Circuit and Plaintiffs, is Plaintiffs’ right 
to be free from retaliation for “sharing their religious views on same-sex marriage with Foster Child 
1.” Lasche, 2022 WL 604025, at *5. Indeed, Plaintiffs allege that, by suspending their foster parent 
license, the Individual Defendants “took retaliatory action against the Plaintiffs because they had 
shared a religious belief with their Foster Children.” SAC ¶ 52. However, this Court is unaware of, 
and Plaintiffs have failed to provide, any authority indicating that the Individual Defendants would 
have been on notice that the foster license suspension, in 2018, for the reason alleged, clearly violated 
Plaintiffs’ First Amendment rights. Indeed, the cases cited by Plaintiffs are either inapposite or 
address religious freedom rights at far too high a level of generality to overcome qualified immunity. 
Asserting that the Individual Defendants’ alleged conduct violated clearly establishe d law, 
Plaintiffs point to Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520 (1993) 
and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018). See 
Pls. Opp. 11 –14. While both cases set forth certain c ontours of religious liberty rights, neither 
remotely addresses the alleged conduct and constitutional violation here so as to preclude application 
of qualified immunity. In Lukumi, the Supreme Court held that city ordinances, which prohibited 
animal sacrifice, were violative of the First Amendment because they were underinclusive in terms 
of the conduct they restricted and selectively enforced such that only religious conduct was burdened. PageID:
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508 U.S. at 547. In Masterpiece Cakeshop, the Supreme Court held that the Colorado Civil Rights 
Commission violated its “duty under the First Amendment not to base laws or regulations on hostility 
to a religion or religious viewpoint” when it failed to recognize the legitimacy of a bakeshop owner’s 
right to abstain from creating wedding cakes for same -sex couples due to his religious beliefs. 138 
S. Ct. at 1731–32. Both cases emphasize that “the government, if it is to respect the Constitution ’s 
guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of 
affected citizens and cannot act in a manner that passes judgment upon or presupposes the 
illegitimacy of religious beliefs and practices. ” Id. at 1731 (citing Lukumi, 508 U. S. at 534). 
However, such precedent does not clearly establish a First Amendment right of foster parents to 
impart their religious views to their foster children or a corollary right to be free from government 
retaliation for doing so—particularly where the religious views imparted directly affect the adoption 
process of the foster children. See SAC ¶ 29 (“the DCP&P was concerned that both Foster Child 1 
and Foster Child 2 indicated that same -sex relationships were against their religion” and “felt the 
children had gotten that belief from the Plaintiffs” ). The notion that the government must maintain 
neutrality towards religious views is precisely the type of “broad general proposition” that cannot 
operate to foreclose qualified immunity. Indeed, the right at issue here is novel, narrow, and case-
specific. 
In my June 4, 2020 Opinion, I noted that it was unclear whether Plaintiffs’ conduct was 
constitutionally protected, explaining that “[a]lthough Plaintiffs have an absolute right to pr actice 
whatever religious beliefs they choose, their right to free exercise does not, necessarily, permit them 
to engage in religious practice and share their beliefs with Foster Child 1, who was not Plaintiffs’ 
adoptive child and Plaintiffs were not her l egal guardian.” Lasche, 2020 WL 2989145, at *6. The 
Third Circuit reversed that finding, holding that “t he Lasches plausibly allege that they engaged in 
constitutionally protected conduct by sharing their religious views on same-sex marriage with Foster PageID:
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Child 1.”2 Lasche, 2022 WL 604025, at *5. Importantly, however, in finding such a right under the 
First Amendment, the Third Circuit did not cite a single case espousing its prior existence or 
indicating that conduct in violation of the right would amou nt to conduct in violation of clearly 
established law—“leaving initial consideration of the qualified immunity defense for the District 
Court.” Id. at *4 –5. Although “the Free Exercise clause of the First Amendment indisputably 
protects an individual’s right to control the religious upbringing of his or her children,” Lasche, 2020 
WL 2989145, at *6 (collecting cases), as far as this Court is aware, the Third Circuit’s March 1, 2022 
Opinion is seemingly the first to recognize a similar right among foster parents vis-à-vis their foster 
children.3 Indeed, throughout the course of this litigation , Plaintiffs have cited no case directly 
supporting that proposition. Absent prior authority to the contrary, I cannot find that , in 2018, the 
Individual Defendants were on notice that suspension of Plaintiffs’ foster parent license for sharing 
 
2 Defendants argue that “Plaintiffs do not plead facts that would show that their negative views about 
homosexuality would not have been explored by DCPP had the Lasches indicated they held those 
views for secular reasons ,” thus demonstrating that Plaintiffs cannot show that suspension of the 
license was “anything other than a neutral policy.” Defs. Mot. 15. But such considerations regarding 
the Individual Defendants’ intent are not appropriate at this stage, particularly as Plaintiffs do not 
allege that their license was suspended pursuant to a n express policy of the DCPP. Given that the 
Third Circuit h as found that Plaintiffs set forth a plausible First Amendment retaliation claim and 
that on a motion to dismiss this Court must accept Plaintiffs’ well -pleaded allegations as true, my 
qualified immunity analysis assumes that the alleged retaliation was vi olative of Plaintiffs’ First 
Amendment rights. 
 
3 This Court’s own research on the matter has only revealed prior instances in which “federal courts 
have held that that the state should make some effort to accommodate the child and parents’ religious 
needs when making foster care placements.” See Lasche, 2020 WL 2989145, at *6 (citing Pfoltzer v. 
Fairfax Cty. Dep’t of Human Dev., 966 F.2d 1443 (4th Cir. 1992) (“With respect to children in foster 
care, a state is required to make reasonable efforts to acco mmodate the parent ’s religious 
preferences.”); Wilder v. Bernstein, 848 F.2d 1338, 1347 (2d Cir. 1988) (“So long as the state makes 
reasonable efforts to assure that the religious needs of the children are met during the interval in 
which the state assumes parental responsibilities, the free exercise rights of the parents and their 
children are adequately observed”); Walker v. Johnson , 891 F. Supp. 1040, 1049 (M.D. Pa. 1995) 
(recognizing parents’ “limited rights to control the religious upbringing” of a child in foster care) ). 
This line of cases in no way indicates a clearly established First Amendment right among foster 
parents to impart their religious beliefs to a foster child, who is neither their biological child nor their 
adoptive child. PageID:
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their religious views regarding homosexuality with Foster Child 1 was violative Plaintiffs’ clearly 
established First Amendment rights. Thus, the Individual Defe ndants are entitled to qualified 
immunity as to Plaintiffs’ First Amendment retaliation claim pursuant to § 1983. 
Further, because the Individual Defendants are immune with respect to the § 1983 claim, the 
Individual Defendants are also entitled to qualified immunity as to Plaintiffs’ conspiracy claim under 
§ 1985. See, e.g., Downey v. Coalition Against Rape & Abuse, Inc., 143 F. Supp. 2d 423, 453 (D.N.J. 
2001) (“The § 1983 qualified immunity analysis applies equally to claims brought against public 
officials under § 1985; if an official is immune from suit under § 1983, that official also is immunized 
from suit under § 1985(3). ”). Indeed, w ithout a First Amendment retaliation claim against the 
Individual Defendants, Plaintiffs’ § 1985 claim, which is premised on retaliation in violation of the 
First Amendment, fails. See id. Plaintiffs’ claims for monetary damages under § 1983 and § 1985(3) 
are dismissed. 
B. Injunctive Relief 
 
Defendants also argue that to the extent Plaintiffs seek injunctive re lief, such a request fails 
because (i) Plaintiffs do not plead facts demonstrating that the Individual Defendants we re 
responsible for the decision to suspend Plaintiffs’ foster license, and (ii) Plaintiffs cannot proceed 
under the Ex Parte Young doctrine because (a) Plaintiffs sue the Individual Defendants only in their 
individual capacity—not their official capacity and ( b) Plaintiffs fail to allege that the Individual 
Defendants have the authority to reinstate Plaintiffs’ license were an injunct ion to issue. See Defs. 
Mot. 19–22. Each basis identified by Defendants is an obstacle to Plaintiffs obtaining injunctive 
relief. 
As noted supra, the Second Amended Complaint lacks sufficient factual allegations as to the 
Individual Defendants’ personal involvement in suspension of Plaintiffs’ foster license. Plaintiffs 
merely allege that “their license was suspended by the Monmouth County DCP&P office” and that PageID:
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“suspending their license could not have been taken solely on the initiative of the case workers but 
also required the approval and cooperation of the other Defendants.” SAC ¶¶ 41, 57. Plaintiffs do 
not allege that any of the Individual Defendants actually took steps to suspend their foster license, 
nor do they allege that any of the Individual Defendants, by virtue of their positions, had the authority 
to suspend the license. In fact, as Plaintiffs acknowledge, the denial, suspension, and revocation of 
foster licenses are governed by statutes that require notice and an opportunity to be heard regarding 
any suspension decision. See SAC ¶ 42; N.J.S.A. 30:4C -27.10. Even if, as Plaintiffs allege , such 
mandatory procedures were not followed in the suspension of their license, the relevant 
administrative regulations make clear that the suspension of foster care licenses is within the purview 
of the Department of Children and Families Office of Licensing. See N.J.A.C. 3A:51-2.5. Plaintiffs’ 
allegations as to the Individual Defendants wholly ignore this grant of authority in the applicable 
regulations and fail to demonstrate that the Individual Defendants are even involved in licensing 
decisions at all. 
Relatedly, in seeking injunctive relief, the Second Amended Complaint fails to set forth 
allegations demonstrating the applicability of the Ex Parte Young doctrine. “In general, the Eleventh 
Amendment prevents suits in federal court against states, or state officials if the state is the real party 
in interest.” Hindes v. F.D.I.C., 137 F.3d 148, 165 (3d Cir. 1998). However, Ex Parte Young and its 
progeny provide that “a state official sued in his official capacity for prospective injunctive relief is 
a person within section 1983, and the Eleventh Amendment does not bar such a suit. ” Koslow v. 
Commonwealth of Pennsylvania, 302 F.3d 161, 179 (3d Cir. 2002) (internal quotations and citation 
omitted); see Gregory v. Admin. Office of the Courts of State of N.J., 168 F. Supp. 2d 319, 327 (D.N.J. 
2001) (noting that Ex Parte Young “held that the Eleventh Amendment did not preclude suits against 
state officers, in their official capacities, to enjoin violations of federal law ”). Importantly, the 
Supreme Court has held that “ a particular official [is] properly named as a defendant if the official PageID:
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‘by virtue of his office has some connection with the enforcement of the act. ’” Finberg v. Sullivan, 
634 F.2d 50, 54 (3d Cir. 1980) (quoting Ex Parte Young, 209 U.S. at 157). Here, Plaintiffs request 
an injunction “reinstating them as foster parents and enjoining the Defendants from discriminating 
against them or violating their First Amendment Rights .” SAC ¶¶ 54, 59. But , seeking damages 
from the Individual Defendan ts, Plaintiffs have not sued the Individual Defendants in their official 
capacities as required under the Ex Parte Young doctrine, nor have Plaintiffs properly alleged that 
the Individual Defendants “by virtue of [their] office” have “some connection with the enforcement” 
of foster license suspensions —an authority delegated to the Department of Children and Families 
Office of Licensing. The Second Amended Complaint also describes John and Jane Doe defendants, 
stating that “John and Jane Doe 1 through 10 are unknown employees, agents or contractors of the 
DCP&P who were involved in the allegations set forth below and violated Plaintiffs’ rights as set 
forth below.” SAC ¶ 7. Yet, Plaintiffs do not purport to sue any John Doe in an official capacity, 
nor does this description bring claims against an official possessing some authority with respect to 
foster licensing administration under New Jersey law. See, e.g., Smith v. N.Y. Sec’y of State, No. 20-
CV-4958, 2022 WL 970749, at *8 (E.D.N.Y. Mar. 31, 2022) (Under Ex Parte Young doctrine, 
“Plaintiff’s claims against the John Doe Defendants must be dismissed because, notwithstanding 
Plaintiff’s conclusory descriptions of them, they lack the power and duty to grant the requested 
relief.”). For these reasons, Plaintiffs’ § 1983 retaliation claim for injunctive relief is dismissed. 
In light of the identified deficiencies in Plaintiffs’ allegations, Plaintiffs may amend their 
Complaint in the following ways in pursuit of only injunctive relief. First, Plaintiffs may include 
additional allegations as to the Individual Defendants, whic h demonstrate that the Individual 
Defendants were directly involved in the suspension of Plaintiffs’ foster license by virtue of their 
authority to participate in foster licensing administrati on or otherwise. Second, Plaintiffs may 
identify a defendant who does have authority to suspend a foster license under New Jersey law , and PageID:
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plausibly allege that this individual did, in fact, suspend Plaintiffs’ license for retaliatory reasons . 
Third, Plaintiffs may a mend their description of the John Doe defendants t o make clear that the 
unnamed officials have the authority to suspend foster licenses under New Jersey law. 
C. The Remaining State Law Claim 
 
The parties agree that should this Court dismiss the federal claims, Plaintiffs’ NJLAD claim 
should be remanded to state court, where Plaintiffs originally filed this action. See Pls. Opp. 14; 
Defs. Reply 11. As indicated supra, Plaintiffs federal claims are dismissed , and therefore the only 
basis for this Court’s jurisdiction over Plaintiffs’ NJLAD claim is supplemental jurisdiction pursuant 
to 28 U.S.C. § 1367. “Supplemental jurisdiction allows federal courts to hear and decide state -law 
claims along with federal -law claims where they ‘are so related to claims in the action within such 
original jurisdiction that they form part of the same case or controversy. ’” Wis. Dep’t of Corr . v. 
Schacht, 524 U.S. 381, 387 (1998). However, a district court “may decline to exercise supplemental 
jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original 
jurisdiction.” 28 U.S.C. § 1367(c)(3). Given the parties’ agreement on this issue, the Court, in its 
discretion, declines to exercise supplemental jurisdiction. That said, because Plaintiffs may amend 
their Complaint, I will reserve any action with respect to Plaintiffs’ NJLAD claim at this time . If 
Plaintiffs refuse the opportunity to amend, I will remand the state law claim. 
IV. CONCLUSION 
For the reasons set forth above, Defendants’ motion to dismiss is GRANTED; Plaintiffs are 
given leave to amend their Complaint consistent with this Opinion within 30 days. An appropriate 
Order shall follow. 
 
Date: November 28, 2022 /s/ Freda L. Wolfson 
Hon. Freda L. Wolfson 
U.S. Chief District Judge PageID:
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