NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 18-2872 ____________

A.P.; V.P.,

Appellants

v.

GLADIBEL MEDINA, Medical Doctor ____________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-17-cv-13794) District Judge: Honorable Susan D. Wigenton ____________

Submitted Under Third Circuit L.A.R. 34.1(a) June 13, 2019 Before: HARDIMAN, KRAUSE, and PORTER, Circuit Judges.

(Filed: June 18, 2019)

____________

OPINION* ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

A.P. and V.P. appeal the District Court’s order dismissing their complaint for

failing to state a claim against Gladibel Medina, M.D. The crux of their complaint is that

Dr. Medina, acting on behalf of the Hudson County Division of Child Protection and

Permanency (DCPP), deprived them of their right to substantive due process. The parents

claim Dr. Medina caused them to lose custody of their two-month-old son because of her

improper investigation and report of the child’s injuries. Because we agree with the

District Court that the complaint failed to meet the high standard to plead a constitutional

tort, we will affirm.

I1

According to the complaint, A.V.P. fell and hit his head on a television stand on

December 23, 2015 and was taken to Christ Hospital. After A.V.P. was transferred to St.

Peter’s Hospital, on December 25, 2015, police officers from the Hudson County Special

Victims Unit interviewed A.P. and V.P. Five days later, DCPP took custody of A.V.P.

without a court order based on the concern that the infant’s injuries had been inflicted.

That custody arrangement was continued by order of the Superior Court of Hudson

1 The District Court had jurisdiction under

and 1343. We have jurisdiction under

. We review a District Court’s order granting a motion to dismiss for failure to state a claim de novo. E.g., Evancho v. Fisher,

(3d Cir. 2005). 2 County, New Jersey on January 4, 2016, pending a hearing on the petition for custody

filed by DCPP.

Dr. Medina’s involvement in the matter began on January 6, 2016, when she

examined A.V.P. at the Dorothy B. Hersch Regional Child Protection Center following a

referral by DCPP. She completed Child Protection Center reports dated January 20,

March 21, April 19, and August 1, 2016.

A.V.P.’s parents alleged that Medina violated their right to substantive due process

by relying on “junk science,” by omitting from her reports a test result that supported a

non-abusive explanation for A.V.P.’s injuries, and by misrepresenting his injuries in her

reports. App. 30, ¶¶ 88–90. These circumstances, they argue, supported a reasonable

inference that Medina was deliberately indifferent to their parental rights and to well-

established medicine and science. We agree with the District Court that the complaint

contained insufficient facts to find that Medina’s conduct “shocks the conscience.”

Nicini v. Morra,

(3d Cir. 2000) (en banc) (quoting Miller v. City of

Phila.,

(3d Cir. 1999)); see Mammaro v. N.J. Div. of Child Prot. &

Permanency,

(3d Cir. 2016). After DCPP and the Superior Court

decided to separate A.V.P. from his parents pending medical investigation, Medina had a

reasonable basis to continue her investigation until genetic testing revealed another

(extremely rare) explanation for A.V.P.’s injuries. And when Medina stated those results

in her final report, DCPP immediately sought dismissal of its custody petition.

3 Integral to the parents’ complaint, and quoted throughout it, are Medina’s detailed

reports and updates about her investigation. As such, the District Court could consider the

reports in their entirety—without converting the motion to dismiss into one for summary

judgment or necessarily accepting the complaint’s characterizations of their contents. See

In re Burlington Coat Factory Sec. Litig.,

(3d Cir. 1997).

Those reports show that Medina recognized from the outset that A.V.P.’s injuries

might not have resulted from abuse and that further investigation was needed, because

abusive head trauma had not been ruled out. See App. 47 (“[M]edical work-up is not

complete and metabolic testing through genetics is still pending to rule out an organic

disorder potentially associated with the injuries found on this infant. Abusive Head

Trauma must be considered as this investigation continues and should be explored with

all of [A.V.P.’s] caregivers given the safety risks involved.”). The parents respond that

the reports’ discussion of the evidence about A.V.P.’s bilateral multilayered retinal

hemorrhages and chronic subdural hemorrhages shows that Medina’s ongoing medical

investigation was a “cover up” and “stall tactic.” Appellants’ Br. 11.

Regarding both types of hemorrhages, A.V.P.’s parents argue that Medina’s

references to “rapid” or “repetitive acceleration/deceleration incidents” reveal that she

based her decisions to continue the investigation on shaken baby syndrome—a

discredited basis, they allege, for explaining his hemorrhages. App. 47, 50; see also

Cavazos v. Smith,

, 13–14 (2011) (Ginsburg, J., dissenting) (collecting

4 research). This forms the crux of their “junk science” argument, but it ignores two key

qualifications in Medina’s reports. First, Medina did not diagnose “inflicted” or “Abusive

Head Trauma” based on “repetitive acceleration/deceleration incidents” alone. App. 47,

50. She merely noted that injuries like A.V.P.’s can result from such incidents. In

addition, she cited “acceleration/deceleration incidents with or without impact.” App. 47

(emphasis added). Incidents with impact—as could result from inflicted abuse without

shaking—could have caused the hemorrhages Medina observed. So the parents claim

only half of one example was in error. Even assuming it was, Medina’s mention of

acceleration/deceleration incidents without impact as a potential cause, when read in

context, does not plausibly demonstrate deliberate indifference or shock the conscience.

See Miller, 174 F.3d at 375–76 (explaining that the degree of wrongfulness depends on

the circumstances, but allegations of negligence or simple error do not state a valid

substantive due process claim). What’s more, she had another reasonable basis to

continue investigating, which she made clear in the same sentence: incidents with impact.

At the same time, she did not rule out “an organic disorder potentially associated with the

injuries.” App. 47.

Regarding the chronic subdural hemorrhages, A.V.P.’s parents argue that

Medina’s omission of an MRI scan showing extra-axial cerebral spinal fluid collection

(not just blood) and her misrepresentation of that fluid collection as only a chronic

subdural hemorrhage (just blood) reveal her deliberate indifference. But Medina’s first

5 report does mention the MRI scan. App. 46–47. And that mention, albeit brief, does not

rule out the presence of spinal fluid; instead, it accurately states that blood was present:

“defined by CT and MRI head studies as demonstrating acute, subacute and chronic

subdural intracranial bleeding components (old and new blood).”

Thus, reading the

reports in full, Medina did not omit or misrepresent the MRI findings, let alone do so in a

way that could support a claim of deliberate indifference or conscience-shocking

behavior.2

* * *

For the reasons stated, we will affirm the District Court’s order.

2 For the same reasons, the complaint proves insufficient under the professional judgment standard we have noted could apply to professionals in the child custody context. Nicini,

n.9 (requiring “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” (quoting Youngberg v. Romeo,

(1982)). 6