Ivey McCray v. William D. Jones

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 21-3294
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IVEY MCCRAY,
Appellant
v.
WILLIAM D. JONES; CARLA TENTION, Essex County Child Support Enforcement
Division; RASHAD SHABAZZ-BURNS, Director New Jersey State Child Support
Enforcement; JOHN DOE 1-50
______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-21-cv-03937)
U.S. District Judge: Hon. Susan D. Wigenton
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Submitted Under Third Circuit L.A.R. 34.1(a)
December 6, 2022
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Before: SHWARTZ, MATEY, and FUENTES, Circuit Judges.
(Filed: December 7, 2022)
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OPINION*
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SHWARTZ, Circuit Judge.
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.

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2
Ivey McCray sued various individuals over the collection of child support she
owed. Because her complaint fails to allege any personal involvement by Defendants
William D. Jones and Carla Tention, we will affirm the District Court’s order dismissing
the complaint against them.
I
A
McCray and Jones divorced in 1988. Jones, who resided in New Jersey, had
custody over their daughter and obtained child support from McCray. Eventually, the
child support order was converted to an arrears order in the amount of $100.00 per month
(the “Arrears Order”). The Arrears Order was sent to “Essex County”1 for enforcement.
Collection efforts on the Arrears Order occurred on several fronts. In May 2012,
“Essex County” sent the Arrears Order to Alameda County, California, where McCray
resided. Alameda County instituted an administrative offset of $100.00 per month from
McCray’s Social Security retirement benefits through 2019. In 2018, “Essex County”
obtained a tax offset from McCray’s federal tax refund. Compl. ¶¶ 22-23 (App. 20). In
June 2020, the Internal Revenue Service informed McCray that her federal stimulus
payment had been paid to “Essex County.” Compl. ¶ 24 (App. 20). Between September
2020 and January 2021, “Essex County” notified McCray about these collection
activities. Compl. ¶ 26 (App. 20-21). Beginning in June 2020, McCray sent several
1 McCray’s complaint refers only to “Essex County” and never specifies which
county entity carried out any of these actions.

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letters to “all Defendants” requesting return of the funds, but she received no response.
Compl. ¶¶ 25-28 (App. 20-21).
B
1
McCray sued various defendants, including Jones and Tention, who she identified
“as Director of Essex County Child Support Enforcement,” App. 16,2 asserting the
following: (1) a due process claim against “Essex County” under 42 U.S.C. § 1983 for
seizing her federal tax refunds and Social Security benefits without amending the Arrears
Order; (2) a claim under the Uniform Interstate Family Support Act (“UIFSA”) against
all Defendants for seizing amounts beyond those specified in the Arrears Order; (3) a
Fourteenth Amendment claim against “Essex County” for assigning the right of
enforcement to California while “Essex County” also enforced the Order; (4) a claim
under the Social Security Act (“SSA”) against all Defendants for certifying Jones as a
Title IV-D beneficiary to pursue past due child support; and (5) a claim under N.J.S.A.
§ 2A:14-1.2 against all Defendants for registering the support order in California and
later seizing her stimulus check. McCray sought return of the money paid to Jones and/or
seized by “Essex County,” as well as an injunction against continued offsets of federal
tax refunds or administrative funds. App. 25.
2
2 McCray also sued Rashad Shabazz Burns, as “Director of New Jersey State
Child Support Enforcement.” App. 16. The claims against Burns were voluntarily
dismissed.

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4
Jones and Tention filed motions to dismiss under Federal Rule of Civil Procedure
12(b)(6). The District Court granted the motions, concluding, among other things, that
each count failed to state a claim against either Jones or Tention. McCray v. Jones, No.
21-CV-03937, 2021 WL 5864066, at *1-2 (D.N.J. Dec. 10, 2021). The Court noted that
“[n]oticeably absent” from McCray’s complaint were factual allegations against Jones or
Tention that would give rise to liability for actions the federal government or California
took. Id. at *2. The Court further concluded that McCray failed to provide a legal basis
for her to sue under UIFSA, the SSA, or N.J.S.A. § 2A:14-1.2, which is a statute of
limitations provision. Id.
McCray appeals.
II3
A
When reviewing a district court’s order dismissing under Rule 12(b)(6), we must
determine whether the complaint, construed “in the light most favorable to the plaintiff,”
3 The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of a district
court’s order granting a motion to dismiss. Burtch v. Milberg Factors, Inc., 662 F.3d 212,
220 (3d Cir. 2011).
Judge Matey would vacate the District Court’s decision and remand with
instructions to dismiss without prejudice because McCray lacks standing to sue Jones or
Tention for the acts alleged in her complaint. See Dominguez v. UAL Corp., 666 F.3d
1359, 1365 (D.C. Cir. 2012). Because her alleged injury appears to be “the result of the
independent action of some third party not before the court,” Judge Matey concludes the
causation element of standing “is not satisfied.” Mielo v. Steak n’ Shake Operations,
Inc., 897 F.3d 467, 481 (3d Cir. 2018) (quoting Finkelman v. Nat’l Football League, 810
F.3d 187, 193 (3d Cir. 2016)).

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Santomenno ex rel. John Hancock Tr. v. John Hancock Life Ins. Co., 768 F.3d 284, 290
(3d Cir. 2014) (quotation marks omitted), “contain[s] sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We
disregard, however, “rote recitals of the elements of a cause of action, legal conclusions,
and mere conclusory statements.” James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d
Cir. 2012). A claim will have “facial plausibility when the pleaded factual content allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged,” Thompson v. Real Est. Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014)
(quoting Iqbal, 556 U.S. at 678), or at least puts forth “allegations that raise a reasonable
expectation that discovery will reveal evidence of the necessary element,” Fowler v.
UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (quotation marks omitted). We will
examine each claim under this standard.
B
McCray’s first claim seeks relief under 42 U.S.C. § 1983, which provides a cause
of action against state and local officers for “the deprivation of any rights . . . secured by
the Constitution and laws” of the United States. Plaintiff asserts that Tention violated her
due process rights.
Civil rights actions must allege facts showing the defendants had “personal
involvement in the alleged wrongs.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988); see also Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (“The Third Circuit

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has held that a civil rights complaint is adequate where it states the conduct, time, place,
and persons responsible.”). This is true even where a plaintiff seeks to hold a defendant
liable under a theory of supervisory liability. So here, McCray must allege that Tention
“participated in violating [her] rights, directed others to violate them, or, as the person in
charge, had knowledge of and acquiesced in h[er] subordinates’ violations.” A.M. ex rel.
J.M.K. v. Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). Allegations of
“actual knowledge and acquiescence” must be made with “appropriate particularity.”
Rode, 845 F.2d at 1207. Supervisory liability may also be available where a supervisor
implements or maintains a policy or practice that creates an “unreasonable risk” of a
deprivation of a constitutional right by her subordinates and the “supervisor’s failure to
change the policy or employ corrective practices” results in unconstitutional conduct.
Argueta v. U.S. Immigr. & Customs Enf’t, 643 F.3d 60, 72 (3d Cir. 2011). “[T]he
connection between the supervisor’s directions and the constitutional deprivation must be
sufficient to demonstrate a plausible nexus or affirmative link between the directions and
the specific deprivation of constitutional rights at issue.” Santiago v. Warminster Twp.,
629 F.3d 121, 130 (3d Cir. 2010) (quotation marks omitted).
McCray claims Tention deprived her of her rights under the Due Process Clause of
the Fourteenth Amendment. McCray’s complaint, however, fails to identify any actions
that Tention or her office took concerning the Arrears Order and offsets to her Social
Security benefits, tax refund, or federal stimulus check, or that Tention had knowledge of
those events. In fact, Tention is mentioned only in the caption of the complaint and in

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one paragraph identifying her as the “alleged director” of the Essex County Child
Support Enforcement Division. See Evancho, 423 F.3d at 353-54 (concluding pleadings
were insufficient where plaintiff did not allege any facts indicating high-ranking official
personally directed activities or had knowledge or acquiesced in those activities but
“hypothesize[d] that [the official] may have been somehow involved simply because of
his position”).4 As such, McCray has failed to allege personal involvement by Tention.
To the extent McCray made more specific allegations in her responses to the
motions to dismiss, we may not consider them because a party may not amend her
pleadings by making factual assertions in a brief. Pennsylvania ex rel. Zimmerman v.
PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988). The District Court therefore did not err
in dismissing Counts 1 and 3 of the complaint against Tention.5
4 McCray’s complaint also contains several legal conclusions against all
Defendants, see, e.g., Compl. ¶¶ 31-32 (App. 21) (alleging Defendants “caused the
[Order] to be effectively modified without due process of the law” and “deprived her [of]
a right to her full benefits in violation of the Social Security Act”), which we may not
consider in evaluating her complaint, see James, 700 F.3d at 679.
5 Count 1 of McCray’s complaint asserts a claim under § 1983 and Count 3 alleges
a violation of the Due Process Clause. The two claims are based on the same events,
allegations, and constitutional provision; as a result, the Due Process count is deemed
subsumed under § 1983. Rogin v. Bensalem Twp., 616 F.2d 680, 686-87 (3d Cir. 1980)
(“[I]t would be a redundant and wasteful use of judicial resources to permit the
adjudication of both direct constitutional and § 1983 claims where the latter wholly
subsume the former.”). As a result, our ruling applies to both counts.

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C
The District Court also correctly dismissed Counts 2 and 4, which assert that
Tention and Jones violated UIFSA and the SSA, respectively.6
Both statutes contain provisions addressing enforcement of child support orders.
New Jersey has codified UIFSA at N.J.S.A. § 2A:4-30.124, et seq., and McCray
identifies “UIFSA section 600” as the basis for her relief, Compl. ¶ 30 (App. 21). Article
6 of UIFSA sets forth mechanisms for registration, enforcement, and modification of
support orders. See, e.g., N.J.S.A. §§ 2A:4-30.168 to 2A:4-30.183. Title IV-D of the
SSA addresses enforcement of support obligations owed by noncustodial parents, 42
U.S.C. § 651, including collection and disbursements, 42 U.S.C. §§ 651-669b. Even
assuming McCray may bring a private claim under these provisions, she has failed to
allege how Tention or Jones participated in the collections activity about which she
complains. Although McCray asserts that “Essex County” sent the Arrears Order to
California, which then began the administrative offsets, she does not allege that Tention
was employed by “Essex County” at that time or was involved with the offsets. As to
Jones, McCray’s complaint lacks any specific allegations about him beyond his receipt of
payments under the orders. Indeed, she alleges that he took “no steps” regarding the
6 Jones did not file a brief in this appeal, but we will review the order dismissing
the claims against him.

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Arrears Order. Compl. ¶ 34 (App. 22). Thus, the District Court properly dismissed the
UIFSA and SSA claims against both Defendants.7
III
For the foregoing reasons, we will affirm the District Court’s judgment.
7 The District Court also properly dismissed Plaintiff’s final claim, which cites to
N.J.S.A. § 2A:14-1.2. This provision merely sets forth the limitations period for civil
actions commenced by the state. McCray did not act for nor sue New Jersey and neither
Tention, an alleged county-level official, nor Jones, a private citizen, is subject to this
provision.

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