Full opinion text
OPINION BROWN, District Judge This matter comes before the Court upon the motion to dismiss of the defendants Division of Youth and Family Services (“DYFS”), Andrea Young, Cathee Chichester, Peggy McHale, Keith Weinberg and Mary Ann St. John (collectively, the “State Defendants”); upon the motion for judgment on the pleadings of the defendants Capital Health System, Inc. (“Capital Health” or “Capital Health Systems”), Evelyn Potako, Joanne Dix, Betty Bennett and Marietta Cahill (collectively the “Capital Health Defendants”); upon the motion to dismiss of the defendant Stephen Moffitt, M.D.; and upon the motion of the plaintiffs for leave to file an amended complaint. The Court has jurisdiction over the plaintiffs’ federal claims pursuant to 28 U.S.C. §§ 1331 and 1343(a) and supplemental jurisdiction over the plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367(a). For the reasons discussed below, the defendants’ motions to dismiss and for judgment on the pleadings are granted in part and denied in part, and the plaintiffs’ motion for leave to amend the complaint is denied. I. BACKGROUND A. The Allegations of the Complaint The plaintiff, Jane Doe, alleges in her complaint that in February 1998 she began prenatal treatment at the Health Start Prenatal Program at Capital Health System. See Complaint at ¶20. On February 9, 1998, Jane Doe signed a written consent to random urine screening for drugs and HIV testing of her blood. See id. at ¶¶ 21-22. At no time during her pregnancy did the plaintiffs urine test positive for drugs. See id. at ¶ 23. The plaintiff alleges that at some point after February 1998, she decided to withdraw her consent to be tested for HIV, and further alleges that Capital Health personnel failed to record her withdrawal in her records. See id. at ¶¶ 24-25. Hospital staff periodically telephoned the plaintiff and asked her to submit to testing, which she refused. See id. at ¶¶ 26 and 28. The plaintiff alleges that notwithstanding her refusal to be tested for HIV, in July 1998 defendant “Betty Bennett caused Plaintiff Jane Doe’s blood to be tested for HIV....” Id. at ¶35. Later, the plaintiff was advised that she tested positive for HIV. See id. at ¶ 36. The plaintiffs further allege that “[t]he AZT recommended protocol for HIV positive [pregnant] mothers include[s][one] AZT pill [five] times a day during pregnancy beginning in the [fourteenth] week, [administration of AZT] during labor and delivery, and [administration of AZT] to the newborn right after birth for [six] weeks.” Id. at ¶ 40. The defendant Marietta Cahill prescribed AZT to Jane Doe to take during her pregnancy, which Doe began taking but later stopped because of adverse side effects. See id. at ¶¶ 39 and 41. At some point between July and October 1998, unnamed personnel at Capital Health contacted DYFS and advised DYFS personnel that the plaintiff tested positive for HIV, but were told by DYFS to call back after Baby Doe was born as the situation was not ripe for intervention by DYFS. See id. at ¶¶ 42-43. On October 1, 1998, Jane Doe experienced labor pains and went to Capital Health, but was told to return home as she was not yet ready to deliver. See id. at ¶ 45. While at home, the plaintiff took Tylenol with codeine to ease her pain, but the pain persisted and the plaintiff returned to the hospital. See id. at ¶¶ 46 — 47. The plaintiff alleges that upon her return to the hospital, defendant Paul Loeb, M.D., “openly discussed her HIV status and the administering of AZT during labor and delivery in front of the plaintiffs family, who prior to that time had been unaware of her HIV status”. See id. at ¶¶ 48 and 58. The plaintiff refused AZT, Loeb notified the plaintiff that he would not participate in the delivery, and the plaintiff again was sent home. See id. at ¶¶ 49-50. However, before the plaintiff left the hospital, her water broke and she was admitted to the hospital. See id. at ¶ 51. The plaintiff alleges that she repeatedly asked for pain medication, but refused intravenous medication, and was denied the medication my hospital staff. See id. at ¶¶ 52-54. According to the plaintiff, AZT must be administered intravenously to pregnant women during delivery. See id. at ¶ 55. On October 2,1998, Jane Doe gave birth to a baby girl, Baby Doe. See id. at ¶ 56. The plaintiff alleges that after the birth, defendant Stephen Moffitt, M.D., openly discussed Jane Doe’s HIV status in front of her family, and notified the plaintiff of the recommended AZT protocol for Baby Doe. See id. at ¶¶ 57-59. Jane Doe refused to permit the hospital staff to administer the recommended protocol to Baby Doe. See id. at ¶ 59. The plaintiffs allege that defendants Evelyn Potako and Joanne Dix contacted DYFS and reported that Jane Doe had tested HIV-positive and had refused the recommended AZT protocol. See id. at ¶¶ 60-63. Thereafter, the hospital placed Baby Doe in protective custody and defendant Keith Weinberg served the plaintiff with a “hospital hold.” See id. at ¶ 65. DYFS later obtained a court order that granted emergent medical guardianship over Baby Doe to Capital Health. See id. at ¶ 66. Later that day, Jane Doe signed herself out of the hospital and was prevented from taking Baby Doe home with her by hospital security and the Trenton Police Department. See id. at ¶¶ 67-69. Capital Health personnel performed laboratory tests on Baby Doe and administered the AZT protocol while she was in their custody. See id. at ¶¶ 70 and 72. On October 7, 1998, the hospital notified Jane Doe that the meconium screening performed on Baby Doe tested positive for opiates. See id. at ¶ 73. On October 8, 1998, a laboratory test indicated that Baby Doe tested positive for HIV exposure. See id. at ¶ 77. On October 12,1998, Jane Doe consented to a urine test, which tested negative for drugs. See id. at ¶79. A subsequent confirmatory test of Baby Doe’s meconium tested negative for opiates. See id. at ¶ 96. On October 16, 1998, pursuant to a court order, Baby Doe was returned to the care and custody of Jane Doe with mandatory in-home visitation by DYFS. See id. at ¶ 81. Jane Doe was instructed by DYFS that she was to administer AZT to Baby Doe. See id. at ¶ 82. On or about February 22, 1999, Jane Doe notified defendant Andrea Young that she had stopped administering AZT to Baby Doe because the medication was making the child ill. See id. at ¶ 86. DYFS filed a motion for temporary custody and accused Jane Doe of abuse and neglect. See id. at ¶ 87. On February 24, 1999, the Honorable Gerald J. Council, J.S.C., ordered that Baby Doe submit to medical treatment at the Robert Wood Johnson Hospital in New Brunswick, New Jersey. See id. at ¶ 88. On March 18, 1999, a diagnostic HIV DNA PCR test was performed on Baby Doe at Robert Wood Johnson Hospital, which indicated that Baby Doe was negative for HIV infection. See id. at ¶ 89. Accordingly, medical personnel decided that further treatment was unnecessary and Jane Doe was advised that there was no need to bring Baby Doe for additional scheduled AZT treatments. See id. at |¶¶ 90-91. On April 21, 1999, Young filed an affida|vit with a court accusing the plaintiff of being drug involved at the time of Baby Doe’s birth based on Baby Doe’s meconi-um testing positive for opiates. See id. at ¶ 92. At an August 4, 1999 hearing, Jane Doe presented evidence that she was not drug involved and that the meconium screening test was inaccurate. See id. at ¶¶ 94-96. The Honorable Laurence Lerner, J.S.C., dismissed the DYFS complaint against the plaintiff. See id. at ¶ 97. There is no allegation in the complaint that Jane Doe and Baby Doe ever had any further involvement with either the State Defendants or the Capital Health Defendants. B. Procedural History On June 28, 2000, the plaintiffs filed an eleven-count complaint in this Court against the defendants. The plaintiffs assert various statutory and common law claims against non-state actors in Counts I-IV of their complaint. In Count I, the plaintiffs assert a cause of action against Capital Health Systems, Potako and Loeb under Title III of the Americans With Disabilities Act, 42 U.S.C. § 12181, et seq. (the “ADA”). In Count II, the plaintiffs assert a cause of action against Capital Health Systems, Potako and Loeb under the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1, et seq. (“NJLAD”). In Count III, the plaintiffs assert a cause of action against Capital Health System, Bennett, Potako, Dix and Moffitt under the New Jersey Aids Assistance Act, N.J. Stat. Ann. § 26:5C-1, et seq. (“NJAAA”). The plaintiffs assert a cause of action for common law tortious interference with parental rights against Capital Health Systems, Potako and Dix in Count IV of the complaint. In Counts V-XI, the plaintiffs assert various statutory, constitutional and common law claims against some of the State Defendants. The plaintiffs assert a substantive due process claim under the Fourteenth Amendment to the United States Constitution in Count V alleging that DYFS deprived the plaintiffs of the right to privacy and familial relations. In Count VI, the plaintiffs assert a cause of action against DYFS and Young under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (the “Rehabilitation Act”). Plaintiffs assert a claim against DYFS and Young in Count VII under the ADA. In Count VIII, the plaintiffs assert a claim against DYFS and Young under NJLAD. In Count IX, the plaintiffs assert a state common law claim against DYFS and Young for failure to investigate. The plaintiffs also assert a state common law claim in Count X against DYFS and Young for negligence. In Count XI, the plaintiffs assert a claim under the New Jersey Constitution against DYFS for violation of Jane Doe’s right to privacy. The plaintiffs seek in their prayer for relief a declaration that the defendants violated the plaintiffs’ rights under the United States Constitution, the ADA, the Rehabilitation Act, the New Jersey Constitution, NJLAD and the NJAAA. Additionally, the plaintiffs seek compensatory and punitive money damages, attorneys fees and costs. In November and December 2000, all of the defendants except Loeb moved to dismiss or for judgment on the pleadings. Apparently in response to the State Defendants’ Eleventh Amendment argument, the plaintiffs filed a motion for leave to amend their complaint to “name Charles Venti, the Director of the Division of Youth and Family Services, in his official capacity, as a defendant, name the other DYFS Defendants in their official capa-cit[ies], and to add a prayer for relief seeking an injunction against future enforcement of DYFS’s policy of seizing newborns based solely on a mother’s HIV status and her refusal to administer AZT to the baby.” Plaintiffs’ Brief in Support of Motion to Amend Complaint at 1. C. Claims Against the Individual Defendants The plaintiffs have asserted different legal claims against the various individual defendants based on their involvement with the plaintiffs. Thus, the Court must identify the specific factual allegations and legal claims asserted against each individual defendant. 1. DYFS Generally, the plaintiffs allege that DYFS became involved with them on or about October 2, 1998 after the birth of Baby Doe when the agency was contacted by Capital Health personnel about Jane Doe’s refusal to permit the hospital to administer AZT to Baby Doe. The plaintiffs allege that DYFS violated the plaintiffs’ rights when it went to court and obtained orders permitting the hospital to treat Baby Doe notwithstanding Jane Doe refusing consent. Additionally, the plaintiffs allege that DYFS falsely charged Jane Doe with child abuse and neglect based on the first meconium screening’s positive test for opiates. The plaintiffs assert that DYFS’s conduct and policies violated the plaintiffs’ substantive due process rights to privacy and familial relations, violated the Rehabilitation Act, violated the ADA, violated NJLAD, and violated the New Jersey Constitution. The plaintiffs also assert common law causes of action against DYFS for failure to investigate and for negligence. The plaintiffs seek in their complaint both money damages and declaratory relief against DYFS. 2. Andrea Young The plaintiffs allege that Andrea Young was the case manager involved with the plaintiffs’ case, and that Young filed a false affidavit in state court charging Jane Doe with being drug involved during her pregnancy. See Complaint at ¶¶ 8 and 83. The complaint does not specify whether Young is being sued in her individual or official capacity. The plaintiffs assert causes of action against Young under the Rehabilitation Act, the ADA, NJLAD, and for state common law failure to investigate and negligence. 3. Cathee Chichester The plaintiffs allege that Chichester “was, at all times material, a supervisor employed by Defendant DYFS.” Id. at ¶ 9. This is the only mention of Chichester in the complaint. The complaint does not indicate whether Chichester is sued in her individual or official capacity, does not assert any particular legal claim against Chi-chester, and does not allege that Chiches-ter had any direct involvement with the plaintiffs or that Chichester was responsible for DYFS policymaking that affected the plaintiffs. 4. Peggy McHale The plaintiffs allege that McHale “was, at all times material, the district office manager employed by Defendant DYFS.” Id. at ¶ 10. This is the only mention of McHale in the complaint. The complaint does not indicate whether McHale is sued in her individual or official capacity, does not assert any particular legal claim against McHale, and does not allege that ¡McHale had any direct involvement with the plaintiffs or that McHale was responsible for DYFS policymaking that affected the plaintiffs. 5. Keith Weinberg The plaintiffs allege that Weinberg was a caseworker employed by DYFS and that he served Jane Doe with a “hospital hold” on or about October 2, 1998, which she refused to sign. See id. at ¶¶ 11 and 65. This is the only mention of Weinberg in the complaint. The complaint does not indicate whether Weinberg is sued in his individual or official capacity, does not assert any particular legal claim against Weinberg, and does not allege that Weinberg had any direct involvement with the plaintiffs other than serving a document on Jane Doe on October 2,1998, or allege that Weinberg was responsible for DYFS poli-cymaking that affected the plaintiffs. 6. Mary Ann St. John The plaintiffs allege that St. John “was, at all times material, a caseworker employed by Defendant DYFS.” Id. at ¶ 12. This is the only mention of St. John in the complaint. The complaint does not indicate whether St. John is sued in her individual or official capacity, does not assert any particular legal claim against St. John, and does not allege that St. John had any direct involvement with the plaintiffs, or allege that St. John was responsible for DYFS policymaking that affected the plaintiffs. 7. Capital Health Systems Generally, the plaintiffs allege that Capital Health provided Jane Doe with prenatal care beginning in February 1998, and that it violated the plaintiffs’ rights when its employees tested Jane Doe’s blood for HIV even though she had withdrawn her consent to be tested, disclosed to the plaintiffs’ family and DYFS that the plaintiff was HIV positive, and disclosed to DYFS that Baby Doe’s meconium tested positive for opiates. The plaintiffs assert causes of action against Capital Health under the ADA, NJLAD, NJAAA and for common law tor-tious interference with parental rights. 8. Evelyn Potako The plaintiffs allege that Potako was employed as a nurse by Capital Health Systems. See id. at ¶ 14. The plaintiffs further allege that Potako contacted DYFS on or about October 2, 1998 and informed DYFS that Jane Doe was HIV positive and that she had refused consent to have the hospital treat Baby Doe. See id. at ¶¶ 60 and 62. The plaintiffs assert claims against Pota-ko under the ADA, NJLAD, NJAAA and for tortious interference with parental rights. 9. Joanne Dix The plaintiffs allege that Dix is a social worker employed by Capital Health Systems. See id. at ¶ 15. The plaintiffs further allege that on or about October 2, 1998 Dix contacted DYFS and disclosed that Jane Doe tested HIV positive. See id. at ¶ 61. The plaintiffs assert claims against Dix under NJAAA and for tortious interference with parental rights. 10. Betty Bennett The plaintiffs allege that Bennett is an employee of Capital Health Systems who caused Jane Doe’s blood to be tested for HIV notwithstanding the fact that Doe had withdrawn her consent to be tested. See id. at ¶¶ 16 and 35. The plaintiffs assert claims against Bennett under NJAAA only. 11. Marietta Cahill The plaintiffs allege that Cahill is a “nurse/midwife” employed by Capital Health Systems. See id. at ¶ 17. This is the only mention of Cahill in the complaint. The plaintiffs do not assert any particular legal claim against Cahill, and do not allege that Cahill had any involvement with the plaintiffs or DYFS. 12. Paul Loeb, M.D. The plaintiffs allege that Dr. Loeb was a doctor employed by Capital Health Systems, who disclosed to the plaintiffs’ relatives that Jane Doe was HIV positive and refused to deliver Baby Doe after Jane Doe refused intravenous AZT treatment. See id. at ¶¶ 18, 48-49. The plaintiffs assert claims against Dr. Loeb under the ADA, NJLAD and NJAAA. Dr. Loeb is the only defendant who has not filed a dispositive motion. 13. Stephen Moffitt, M.D. The plaintiffs allege that Dr. Moffitt was employed by Capital Health Systems, and that he openly discussed Jane Doe’s HIV status in front of her relatives. See id. at ¶¶ 19 and 57. The plaintiffs assert a claim against Dr. Moffitt under NJAAA only. II. DISCUSSION The Court will first address the plaintiffs’ motion seeking leave to file an amended complaint and then turn to the defendants’ respective motions to dismiss or for judgment on the pleadings. A. Plaintiffs’ Motion for Leave to File an Amended Complaint 1. Rule 15 Standard Governing Leave to Amend The Federal Rules of Civil Procedure provide that a party may amend his pleading once before a responsive pleading is served, or thereafter upon leave of court or on consent from his adversary. Fed.R.Civ.P. 15(a). The rule states that “leave should be freely given when justice so provides.” Id. The decision whether to grant leave to amend rests with the sound discretion of the trial judge and will be overturned on appeal only upon a finding of abuse of discretion. See Oran v. Stafford, 226 F.3d 275, 291 (3d Cir.2000) (citation omitted); Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 654 (3d Cir.1998) (citing Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir.1984)). Additionally, leave can be granted at any time during the litigation, even after judgment or on appeal. See 6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1488 (West 1990). “If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The Third Circuit has adopted a particularly liberal approach to the amendment of pleadings to ensure that “a particular claim will be decided on the merits rather than on technicalities.” Dole v. Arco Chemical Co., 921 F.2d 484, 486-87 (3d Cir.1990) (citing 6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1471 (West 1990)). However, the allowance should not be automatic. See Dover Steel Co., Inc. v. Hartford Accident and Indemnity Co., 151 F.R.D. 570, 574 (E.D.Pa.1993). Leave should be granted [absent a showing of “undue delay, bad [faith or dilatory motive on the part of the [movant, repeated failure to cure deficiencies by amendments previously allowed, lindue prejudice to the opposing party by virtue of the allowance of the amendment, futility of amendment, etc.” Foman, 371 U.S. at 182, 83 S.Ct. 227. See also Oran, 226 F.3d at 291; Heyl & Patterson Int’l, Inc. v. F.D. Rich Housing of the Virgin Islands, Inc., 663 F.2d 419, 425 (3d Cir.1981), cert. denied sub nom., F.D. Rich Housing of the Virgin Islands v. Government of the Virgin Islands, 455 U.S. 1018, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982). “Futility of amendment is shown when the claim or defense is not accompanied by a showing of plausibility sufficient to present a triable issue.” Harrison Beverage, 133 F.R.D. at 468 (internal quotations omitted). See also Gasoline Sales, Inc. v. Aero Oil Co., 39 F.3d 70, 74 (3d Cir.1994); Reaves v. Sielaff, 382 F.Supp. 472, 474-75 (E.D.Pa.1974) (denying leave to amend because plaintiff did not have standing to litigate amended claims for injunctive relief). Futility of amendment means that the complaint as amended does not state a claim upon which relief can be granted. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997). If the amendment would not withstand a motion to dismiss, leave must be denied. See Miller, 844 F.Supp. at 1001; see also Fishbein Family P’ship v. PPG Indus., Inc., 871 F.Supp. 764, 768 (D.N.J.1994) (applying motion to dismiss standard to claim of “futility of amendment” when third-party defendant sought to name additional party). “This does not require the parties to engage in the equivalent of substantive motion practice upon the proposed new claim or defense; this does require, however, that the newly asserted [claim] appear to be sufficiently well-grounded in fact or law that it is not a frivolous pursuit”. See Harrison, 133 F.R.D. at 469. Accordingly, “the Court must accept as true the allegations in [the proposed amended complaint] and construe those allegations in the light most favorable to the [plaintiffs].” Miller, 844 F.Supp. at 1001. Procedurally, Rule 7.1(e)(2) of the Local Civil Rules of the United States District Court for the District of New Jersey (“L.Civ.R.”) requires the moving party to attach to their moving papers a copy of the proposed amended pleading. The plaintiffs have not done so. 2. Plaintiffs ’ Proposed Amendments Here, the defendants do not argue that they would suffer prejudice if leave were granted. Rather, the defendants argue that leave should be denied because amendment would be futile. Apparently after being presented with the State Defendants’ motion to dismiss on Eleventh Amendment immunity grounds, the plaintiffs seek leave to amend to “name Charles Venti, the Director of the Division of Youth and Family Services, in his official capacity, as a defendant, name the other DYFS Defendants in their official capacities], and to add a prayer for relief seeking an injunction against future enforcement of DYFS’s policy of seizing newborns based solely on a mother’s HIV status and her refusal to administer AZT to the baby.” Although it is difficult to ascertain the precise contours of the plaintiffs’ amended pleading because the plaintiffs did not include a copy of their proposed amended complaint with their moving papers as required by L.Civ.R. 7.1(e)(2), the plaintiffs appear to be attempting to bring their claims within the Ex Parte Young exception to state sovereign immunity in response to the defendants’ Eleventh Amendment immunity defense by seeking prospective injunctive relief against Venti and the other DYFS defendants in their official capacities. The Court concludes that granting the plaintiffs leave to amend would be futile because the plaintiffs cannot satisfy the constitutionally irreducible minimum standing requirements for their proposed amendments. At a minimum, a plaintiff seeking to invoke the jurisdiction of this Court must establish three elements as an indispensable part of his or her case in order to satisfy the Article III “case or controversy” requirements. See City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (citations omitted). “First, the plaintiff must have suffered an injury-in-fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly ... trace[able] to the challenged action of the defendant and not ... th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and internal quotation marks omitted). When standing is challenged on the basis of the pleadings, as it is here, the Court must accept as true all of the well pled allegations of the complaint and construe the complaint in favor of the plaintiffs. See Zieper v. Reno, 111 F.Supp.2d 484, 488 (D.N.J.2000) (citations and internal quotation marks omitted). While it appears that the plaintiffs can easily satisfy the standing requirements for past injuries allegedly suffered in 1998 and 1999, a plaintiff seeking prospective injunctive relief must allege a real and immediate threat of future injury. See Lyons, 461 U.S. at 101-02, 103 S.Ct. 1660. “Plaintiffs must demonstrate a ‘per-| sonal stake in the outcome’ in order to ‘assure that concrete adverseness which| sharpens the presentation of issues’ neces sary for the proper resolution of constitutional questions.” Id. (citing Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). “Abstract injury is not enough. The plaintiff must show that [s]he ... is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical.” Id. (citations and internal quotation marks omitted). Allegations of exposure to illegal conduct in the past alone, without a showing of continuing adverse effects, do not demonstrate a case or controversy entitling a plaintiff to prospective injunctive relief. See id. (citing O’Shea v. Littleton, 414 U.S. 488, 493, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). The plaintiffs have failed to allege that there is any concrete threat that they will suffer in the future from the alleged deprivation of rights at the hands of the defendants. Turning first to Baby Doe’s claims, the plaintiffs allege that in March 1999 Baby Doe tested negative for HIV, see Complaint at ¶ 89, and that in August 1999 the DYFS complaint alleging abuse and neglect was dismissed by Judge Lerner, see id. at ¶ 97. Thus, far from demonstrating a likelihood that Baby Doe will suffer from DYFS’s alleged “policy of seizing newborns based solely on a mother’s HIV status and [Jane Doe’s] refusal to administer AZT to the baby,” it is virtually impossible that such injury will occur. According to the allegations of the plaintiffs’ own complaint, Baby Doe is HIV negative and is no longer in DYFS’s custody or care, nor likely to be subjected to the alleged illegal policy in the future. Baby Doe has claimed only exposure to past illegal conduct, alone, and has failed to allege continuing adverse effects or continued involvement with DYFS and its allegedly illegal policy. Accordingly, the Court concludes that Baby Doe lacks standing to seek injunctive relief. Similarly, Jane Doe has not alleged a continuing harm or a concrete threat of future harm entitling her to prospective injunctive relief. First, the plaintiffs’ brief submitted in reply to the State Defendants’ opposition to their motion for leave to amend misses the point and fails to even cite to the relevant Supreme Court authority governing standing in civil rights cases seeking prospective injunctive relief — Lyons and O’Shea. Rather, the plaintiffs merely argue that they have standing based on their alleged past injuries alone. As with Baby Doe’s claims, Jane Doe no longer has any involvement with DYFS and there is little possibility of future unlawful enforcement of DYFS’s alleged policy given Baby Doe’s HIV — negative status. Any possible involvement due to any possible future pregnancy is far too speculative to confer standing. Second, the plaintiffs appear to now be seeking an injunction on behalf of all HIV-positive pregnant women in New Jersey. However, the plaintiffs do not purport to represent a class, and neither in their initial complaint nor in their motion to amend the complaint do the plaintiffs seek class action status. Thus, although the plaintiffs cryptically argue that “indisputably, Plaintiff Jane Doe has a close relationship with other HIV positive mothers in New Jersey who may decide not to accept treatment for their HIV-exposed newborns,” see Plaintiffs’ Reply at 9, absent class action status, that argument is irrelevant. Without seeking class action status, a plaintiff may only seek relief necessary to remedy her particular claim. See Bowers v. National Collegiate Athletic Ass’n., 118 F.Supp.2d 494, 603 (D.N.J.2000) (citation omitted). The plaintiffs’ attempt to seek injunctive relief on behalf of all HIV-positive pregnant women with whom she has a “close relationship” who refuse consent to have their newborns treated for the disease is legally deficient. Finally, this is not a case that is capable of repetition yet evading review. See Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (citations omitted). First, it should be noted that unlike in Roe v. Wade, the plaintiffs’ claims for money damages and declaratory relief have not become moot in the intervening time between injury and adjudication. Rather, the Court has concluded that the plaintiff lacks standing to assert a claim for prospective relief only. See Davis v. Thornburgh, 903 F.2d 212, 222 (3d Cir.), cert. denied sub nom. Davis v. Cohen, 498 U.S. 970, 111 S.Ct. 436, 112 L.Ed.2d 420 (1990). Moreover, whether the defendants violated the plaintiffs rights remains to be litigated and, thus, their claims in no sense “evade review.” Additionally, the plaintiffs had an opportunity to raise and litigate these very federal and state constitutional, statutory and common law claims in the state enforcement proceeding initiated by DYFS, yet apparently failed to do so. Moreover, the “capable of repetition yet evading review” exception to the standing requirement is applicable only in “exceptional situations, and generally where the named plaintiff can make a reasonable showing that [s]he will again be subjected to the alleged illegality.” Lyons, 461 U.S. at 109, 103 S.Ct. 1660. Here, the plaintiff has not made such a showing. It is mere conjecture that this HIV-positive plaintiff will again become pregnant; that she will again grant and then withdraw consent to be tested for HIV; that she will again refuse treatment during the pregnancy, labor and delivery; that her newborn child will again initially test positive for HIV exposure; and that she will again refuse AZT or some other yet-to-be-developed treatment for the potentially HIV-positive newborn. Jane Doe has not demonstrated a reasonable likelihood that she will again be subjected to claimed illegal conduct at the hands of DYFS personnel. Accordingly, the plaintiffs’ motion for leave to file an amended complaint is denied because the proposed amendment would be futile. B. The State Defendants’ Motion to Dismiss DYFS, Young, Chichester, McHale, Weinberg and St. John move to dismiss the plaintiffs’ claims asserted against them under the Fourteenth Amendment, the Rehabilitation Act, the ADA, NJLAD, for common law failure to investigate and negligence, and for violation of the plaintiffs’ right to privacy under the New Jersey Constitution. 1. Rule 12(b) Standards Governing Motions to Dismiss A motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6) may be granted only if, accepting all well pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief. See Oran v. Stafford, 226 F.3d 275, 279 (3d Cir.2000) (citation omitted); Langford v. City of Atlantic City, 235 F.3d 845, 850 (3d Cir.2000) (citation omitted); Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir.1986); Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir.), cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985). The Court may not dismiss a complaint unless plaintiff can prove no set of facts that would entitle her to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Angelastro, 764 F.2d at 944. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In setting forth a valid claim, a party is required only to plead “a short plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). Under Rule 12(b)(6), the Court must “accept the allegations in the complaint as true, and draw all reasonable factual inferences in favor of the plaintiff. [The motion can be granted] only if no relief could be granted under any set of facts that could be proved.” Turbe v. Government of the Virgin Islands, 938 F.2d 427, 428 (citing Unger v. National Residents Matching Program, 928 F.2d 1392, 1394-95 (3d Cir.1991)); see also Langford, 235 F.3d at 850; Dykes v. Southeastern Pennsylvania Transp. Auth., 68 F.3d 1564, 1565, n. 1 (3d Cir.1995); Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255 (3d Cir.1994); Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994). A complaint may be dismissed for failure to state a claim where it appears beyond any doubt that no relief could be granted under any set of facts which could be proved consistent with the allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). A complaint should not be dismissed unless it appears beyond doubt that “the facts alleged in the complaint, even if true, fail to support the claim.” Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988). Legal conclusions made in the guise of factual allegations, however, are given no presumption of truthfulness. See Papasan v. Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); see also Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997) ( “[A] court i need not credit a complaint’s ‘bald assertions’ or ‘legal conclusions’ when deciding a motion to dismiss”). A district court reviewing the sufficiency of a complaint has a limited role. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support his [or her] claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Generally, when conducting such an inquiry, material beyond the pleadings should not be considered. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997); Pension Benefit Guar. Carp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.), cert. denied, 510 U.S. 1042, 114 S.Ct. 687, 126 L.Ed.2d 655 (1994); Gannon v. Continental Ins. Co., 920 F.Supp. 566, 574 (D.N.J.1996). 2. Plaintiffs’ Claims Against Chiches-ter, McHale, Weinberg and St. John Before turning to the State Defendants’ arguments with respect to sovereign, absolute and qualified immunity, the Court must address a threshold deficiency in the plaintiffs’ claims against Chichester, McHale, Weinberg and St. John — the complaint fails to allege anything that can even remotely be considered a legal claim against these defendants. With respect to Chichester and McHale, the only allegations against these defendants is that they were supervisors or managers employed by DYFS. See Complaint at ¶¶ 9-10. “It is well settled that the doctrine of respondeat superior may not be employed to impose liability on a supervisor for the conduct of a subordinate which violates a citizen’s constitutional rights.” Blanche Road Corp. v. Bensalem Twp., 57 F.3d 253, 263 (3d Cir.1995). In short, there is no vicarious liability under § 1983. See C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 202 (3d Cir.2000). A state official may be held liable under § 1983 in a supervisory capacity only if they have exercised or failed to exercise supervisory authority; thus, a plaintiff asserting a failure to supervise claim must also allege “both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor’s inaction could be found to have communicated a message of approval.” Id. The plaintiffs have alleged neither that Chichester and McHale had knowledge of a pattern of incidents similar to the plaintiffs’ situations, nor that they acted in such a manner as to communicate approval of the allegedly illegal practices of their subordinates. Accordingly, to the extent that the plaintiffs have asserted § 1983 claims against Chichester and McHale in their individual capacities, those claims must be dismissed for failure to state a claim upon which relief can be granted. Similarly, with respect to St. John and Weinberg, the only allegations in the plaintiffs’ complaint are that they were caseworkers employed by DYFS, see Complaint at ¶¶ 11-12, and that Weinberg served the plaintiff with a “hospital hold,” see id. at ¶ 64. Civil liability may be imposed under 42 U.S.C. § 1983 upon “any person who, acting under the color of state law, deprives another of any rights, privileges, or immunities secured by the Constitution or the laws of the United States.” Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir.2000). Section 1983 does not create any new rights, but only provides a remedy for “the violation of a federal constitutional or statutory right.” Id. (citing Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). To establish a federal claim under § 1983, plaintiff must show that the conduct of the defendants, under color of state law, deprived him of a federal constitutional or statutory right. See Gruenke, 225 F.3d at 298. To the extent that the plaintiffs assert claims against St. John and Weinberg under § 1983, the plaintiffs have failed to allege any deprivation of a federal constitutional or statutory right. Accordingly, the plaintiffs’ § 1983 claims asserted against St. John and Weinberg also must be dismissed. 3. Eleventh Amendment Immunity In Count V of the complaint, the plaintiffs assert a § 1983 claim against DYFS alleging that DYFS violated the plaintiffs’ substantive due process rights to privacy and familial relations under the Fourteenth Amendment. See Complaint at ¶¶ 145-54. The State Defendants argue that DYFS, as an agency of the State, is immune from suit in federal court under the Eleventh Amendment of the United States Constitution. The plaintiffs counter that their claim for declaratory judgment brings their § 1983 claim with the Ex Parte Young exception to state sovereign immunity. The plaintiffs appear to have abandoned their claim for money damages against DYFS. The Eleventh Amendment provides: The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const, amend. XI. The Eleventh Amendment does not explicitly prohibit lawsuits by a State’s own .citizens, but the United States Supreme Court “has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662-663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Thus, “for over a century now, [the Supreme Court has] made clear that the Constitution does not provide for federal jurisdiction over suits against nonconsenting States.” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (citing College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)). Therefore, absent waiver, neither a State, nor agencies under its control may be subjected to lawsuits in federal court. See Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993); Welch v. Texas Dep’t of Highways and Public Transp., 483 U.S. 468, 473, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987). Eleventh Amendment immunity constitutes an affirmative defense and, as such, it must be shown by the party seeking to assert the benefit of immunity. See Christy v. Pennsylvania Tpk. Comm’n, 54 F.3d 1140, 1144 (3d Cir.1995). “The ultimate guarantee of the Eleventh Amendment is that nonconsent-ing States may not be sued by private individuals in federal court.” Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 962, 148 L.Ed.2d 866 (2001) (citing Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000)). However, this broad grant of immunity has been qualified by the judicial doctrine of Ex Paite Young, which allows suits against States in federal court seeking prospective injunctive relief to proceed only against state officials acting in the official capacities. See Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The exception created by Ex Parte Young has been interpreted to allow suits against state officials for prospective and declaratory relief in order to end continuing violations of federal law. See Balgowan v. State of New Jersey, 115 F.3d 214, 217 (3d Cir.1997). The doctrine announced in Ex Parte Young ensures that state officials do not use the Eleventh Amendment as a method for avoiding compliance with federal law. See Metcalf, 506 U.S. at 146, 113 S.Ct. 684 (citing Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)). This exception to the Eleventh Amendment is a very narrow one, permitting plaintiffs to seek prospective relief, and only when a state official and not the State or a state agency is the named defendant. See Metcalf, 506 U.S. at 146, 113 S.Ct. 684. The exception has no application where the lawsuit, although naming a state official, is more correctly construed as a suit against the State, which is completely barred by the Eleventh Amendment regardless of the relief sought. See id. The determination of whether the State rather than the named state official is really the party at interest generally turns on the relief sought. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Lawsuits seeking retroactive relief, usually in the form of monetary damages and declaratory judgment for past conduct, against a state official are generally construed as suits against the State because a judgment for damages against an official would necessarily require payment from the government. See Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945). However, it is clear that “a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official capacity-actions for prospective relief are not treated as actions against the State.’” Will, 491 U.S. at 71 n. 10, 109 S.Ct. 2304; see also Hafer v. Melo, 502 U.S. 21, 30, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (holding that the Eleventh Amendment provides no shield for a state official confronted by a claim that he deprived another of a federal right). Therefore, a suit for prospective equitable relief challenging the constitutionality of a state official’s action does not constitute a lawsuit against the State. See Death Row Prisoners of Pennsylvania v. Ridge, 948 F.Supp. 1258, 1265 (E.D.Pa.1996) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). In other words, the United States Supreme Court has recognized the “accepted rule” that federal court actions to restrain activities of state officials do not violate the Eleventh Amendment if the action plaintiff seeks to enjoin violates the Constitution. See Cory v. White, 457 U.S. 85, 89, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982). Here, the plaintiffs seek in their complaint money damages and a declaratory judgment based on past conduct against the State Defendants. In their opposition to the defendants’ motion, the plaintiffs appear to have abandoned their claim for money damages, but argue that their claim for a declaratory judgment falls within the Ex Parte Young exception. See Plaintiffs’ Opposition at 13-14. The plaintiffs’ argument, however, ignores well settled Supreme Court precedent “that the Eleventh Amendment to the United States Constitution and applicable principles governing the issuance of declaratory judgments forbid the award of [a declaration that defendants’ prior conduct violated federal law].” Green v. Mansour, 474 U.S. 64, 65, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985). That is precisely what the plaintiffs seek here — a declaration that DYFS’s past conduct violated federal law. Thus, the Court concludes that the plaintiffs’ § 1983 claims against DYFS seeking money damages and declaratory relief are barred by the Eleventh Amendment. Accordingly, the State Defendants motion to dismiss Count V of the plaintiffs’ complaint must be granted. 4. Title II of the ADA and the State’s Sovereign Immunity In Count VII of the complaint, the plaintiffs assert a claim against DYFS under Title II of the ADA. See Complaint at ¶¶ 170-82. The plaintiffs argue that their ADA claims survive Eleventh Amendment scrutiny because Congress expressly abrogated state sovereign immunity in the act, and that Congress had the constitutional authority to do so. This Court rejects the plaintiffs’ argument in light of the Supreme Court’s recent decision in Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). In order to determine whether Congress abrogated the State’s Eleventh Amendment immunity under Title II of the ADA, the Court must ask and answer two questions: i) whether Congress made an unequivocal expression of its intent to abrogate immunity; and ii) whether Congress acted pursuant to a valid exercise of power. See Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114 (citations omitted). As to the first question, it is undisputed that Congress made an unequivocal expression of its intent in the ADA to abrogate Eleventh Amendment immunity. See 42 U.S.C. § 12101(b)(4); Garrett, 121 S.Ct. at 962 n. 3. However, Congress has the constitutional power to authorize suits brought by individuals against the State in only two circumstances: i) when acting to enforce the Fourteenth Amendment; and ii) when the State consents to suit. See College Savings, 527 U.S. at 670, 119 S.Ct. 2219 (citations omitted). In Garrett, the Supreme Court held that Congress did not validly abrogate state sovereign immunity when it enacted Title I of the ADA. See Garrett, 121 S.Ct. at 967-68. The Court is presented here with the question expressly left open by the Supreme Court in Garrett — whether Congress validly abrogated the States’ Eleventh Amendment sovereign immunity from suits in federal court in Title II of the ADA. See id. at 960 n. 1. Nor has the United States Court of Appeals for the Third Circuit addressed the issue. In Lavia v. Pennsylvania, 224 F.3d 190, 206 (3d Cir.2000), which was decided before the Supreme Court’s decision in Garrett, the Third Circuit held that Congress exceeded its constitutional authority to abrogate state sovereign immunity when it enacted Title I of the ADA. While the circuit has not yet addressed whether Congress validly abrogated state sovereign immunity in Title II of the act, in Yeskey v. Pennsylvania, 118 F.3d 168 (3d Cir.1997), aff'd, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998), the court held, without addressing the question of Eleventh Amendment immunity, that Title II of the ADA applied to state prisoners. Other courts within this circuit as well as other circuit and district courts are split on the issue of States’ Eleventh Amendment immunity under Title II. See Alsbrook v. City of Maumelle, 184 F.3d 999, 1012 (8th Cir.1999), cert. granted sub nom., Alsbrook v. Arkansas, 528 U.S. 1146, 120 S.Ct. 1003, 145 L.Ed.2d 947, cert. dismissed, 529 U.S. 1001, 120 S.Ct. 1265, 146 L.Ed.2d 215 (2000) (holding that claim brought under Title II of the ADA against the State was barred under the Eleventh Amendment); Walker v. Snyder, 213 F.3d 344, 346-47 (7th Cir.2000), cert. denied sub nom., United States v. Snyder, — U.S. -, 121 S.Ct. 1188, 149 L.Ed.2d 104 (2001) (holding that claims brought against the State under Title II of the ADA must be brought in state rather than federal court); Brown v. North Carolina Div. of Motor Vehicles, 166 F.3d 698, 708 (4th Cir.1999), cert. denied, — U.S. -, 121 S.Ct. 1186, 149 L.Ed.2d 103 (2001) (holding that Congress did not validly abrogate state sovereign immunity in enacting regulation under Title II of the ADA prohibiting the imposition of surcharges); Wesley v. Vaughn, Civ. No. 99-1228, 1999 WL 1065209, *8 (E.D.Pa. Nov.18, 1999) (holding that Title II of the ADA as applied to the facts of that case was not a valid exercise of Congress’s power under § 5 of the Fourteenth Amendment); Moyer v. Conti, Civ. No. 99-744, 2000 WL 1478791, *6 (E.D.Pa. Oct.5, 2000) (finding that the reasoning of the Third Circuit’s Lavia decision with respect to Title I applies to Title II as well and holding that Congress did not validly abrogate state sovereign immunity under Title II of the ADA). But see Dare v. California, 191 F.3d 1167, 1176 (9th Cir.1999), cert. denied, — U.S. --, 121 S.Ct. 1187, 149 L.Ed.2d 103 (2001) (holding that Title II is appropriate legislation under § 5 of the Fourteenth Amendment); Coolbaugh v. Louisiana, 136 F.3d 430, 438 (5th Cir.), cert. denied, 525 U.S. 819, 119 S.Ct. 58, 142 L.Ed.2d 45 (1998) (same); Patricia N. v. Lemahieu, 141 F.Supp.2d 1243, 1249 (D.Haw.2001) (following Ninth Circuit precedent and holding that Congress validly abrogated Eleventh Amendment immunity in Title II of the ADA); Project Life, Inc. v. Glendening, 139 F.Supp.2d 703, 707 n. 5 (D.Md.2001) (permitting a jury award against the State to stand in case brought under Title II of the ADA); Jones v. Pennsylvania, Civ. No. 99-4212, 2000 WL 15073, *1 (E.D.Pa. Jan.5, 2000) (denying state defendants’ motion to dismiss ADA claim on Eleventh Amendment grounds). As noted above, in Garrett, the Supreme Court considered whether Congress abrogated States’ Eleventh Amendment immunity through a valid exercise of constitutional authority in Title I of the ADA, 42 U.S.C. §§ 12111-12117. See Garrett, 121 S.Ct. at 960. After discussing briefly the concept of sovereign immunity, the Court recognized “that Congress may abrogate the States’ Eleventh Amendment immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority.” Id. at 962 (quoting Kimel, 528 U.S. at 73, 120 S.Ct. 631) (citations and internal quotation marks omitted). Here, as in Gairett, the first of these requirements is not in dispute. Congress expressly stated in the ADA that the States shall not be immune from suits in federal court under the act. See 42 U.S.C. § 12202. The Garrett Court held that although Congress expressly abrogated the States’ immunity, it did not have the constitutional authority to do so under Section 5 of the Fourteenth Amendment. See id. at 967-68. While not on its face dispositive of plaintiffs’ Title II ADA claims, the Court is guided by the reasoning of the Gamtt decision, which suggests that the Court would have reached the same result under Title II of the ADA as it did under Title I. In reaching its decision, the Garrett Court recognized the now well settled rule that States’ Eleventh Amendment immunity is necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment, and that “Congress may subject nonconsenting States to suit in federal court when it does so pursuant to a valid exercise of its § 5 power.” Garrett, 121 S.Ct. at 962 (citation omitted). The Court then analyzed “the limitations § 1 of the Fourteenth Amendment places upon States’ treatment of the disabled.” Id. at 963. The Court concluded that under its prior precedent in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), the disabled were not a suspect or quasi-suspect classification and, therefore, state laws affecting the disabled were subject to rational basis review. See id. Having determined the scope of Fourteenth Amendment protections afforded the disabled, the Court proceeded to examine whether Congress had identified a history and pattern of irrational employment discrimination against the disabled, and concluded that Congress had not. See id. at 964-65. While the Court’s analysis was restricted to Congressional findings made with respect to employment discrimination by the States, the Court found that the duty imposed by the ADA on employers to accommodate the disabled “far exceeds what is constitutionally required in that it makes unlawful a range of alternate responses that would be reasonable but would fall far short of imposing an ‘undue burden’ on an employer.” Id. The Court held that in all cases where Congress attempts to abrogate sovereign immunity, “the remedy imposed by Congress must be congruent and proportional to the targeted violation,” and found that the Title I of the ADA did not pass constitutional muster. See id. at 967-68. This Court concludes that, as applied here, Congress did not have the constitutional authority under § 5 of the Fourteenth Amendment when it enacted Title II of the ADA, because Congress did not identify a pattern of discrimination against HIV-positive pregnant women, or any other disabled individuals, at the hands of state child welfare agencies, and the remedies available under Title II are not congruent and proportional to the targeted discrimination. The Court must be mindful that “[i]t is for Congress in the first instance to determine whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment, and its conclusions are entitled to much deference.” Kimel, 528 U.S. at 80-81, 120 S.Ct. 631 (quoting City of Boerne v. Flores, 521 U.S. 507, 517, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997)) (internal quotation marks omitted). However, while Congress has the power to enforce the Fourteenth Amendment, it is the province of the courts to define the substantive restrictions the Amendment pláces on the States. See id. at 81, 120 S.Ct. 631 (quoting City of Boerne, 521 U.S. at 519, 117 S.Ct. 2157). The Supreme Court has held “that States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions towards such individuals are rational.” Garrett, 121 S.Ct. at 964. Thus, in order for Title II of the ADA to be a valid exercise of Congressional authority under § 5 of the Fourteenth Amendment, Congress must identify a pattern of irrational discrimination against the disabled by the States, and not merely identify the States’ failure to accommodate the disabled. Before beginning the analysis, however, it must be noted that the Court is presented here with a rather narrow claim — that the plaintiffs were discriminated against by state officials who were implementing DYFS policies directed against HIV-positive pregnant women. The plaintiffs do not indicate in their complaint or in their opposition papers which specific subsections of Title II of the ADA or which regulations enacted thereunder were violated by the defendants, so it is difficult to ascertain the precise legal contours of their claims. But in any event, the Court is constrained to formulate constitutional rules only to the extent necessary to resolve the issues and factual scenario before it. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-02, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985) (citations omitted). Therefore, the Court’s analysis and holding here is limited to the issue before it — whether Congress validly abrogated state sovereign immunity in Title II of the ADA as applied to these plaintiffs and to their claims based on the alleged DYFS policy of separating HIV-positive newborns from their HIV-positive mothers when the mother refuses to consent to treatment. It must be emphasized that the Court’s holding in no way calls into question the broad remedial provisions of Title II directed at the physical accessibility of state facilities and public modes of transportation, see, e.g., 42 U.S.C. §§ 12141-12165 and 28 C.F.R. §§ 35.150-35.151 (2000), or any other provisions of Title II. Those provisions of Title II are not before the Court. Turning to the issue that is before the Court, there is no indication in the Congressional record that Congress identified a pattern of irrational discrimination against the disabled in the policies and practices of state child welfare agencies directed towards HIV-positive mothers. The dissent in Garrett argued that Congress had made the requisite findings of general systemic irrational discrimination against the disabled at the hands of state officials. See Garrett, 121 S.Ct. at 970 (Breyer, J., dissenting). Attached as Appendix C to Justice Breyer’s dissent in Garrett, which was joined by Justices Stevens, Souter and Ginsberg, is a list of submissions made to the “Task Force on Rights and Empowerment of Americans with Disabilities.” See Garrett, 121 S.Ct. at 977-93. The Gamtt majority found that Appendix C did not contain legislative findings but, rather, reflected “unexamined, anecdotal accounts of ‘adverse, disparate treatment by state officials.’ ” Id. at 966. Moreover, the majority noted that Appendix C did not contain submissions that were made to Congress but, rather, submissions made to the “Task Force on the Rights and Empowerment of Americans with Disabilities.” See id. However, even if the anecdotal submissions catalogued in Appendix C were legislative findings, those submissions barely mention discrimination against the disabled at the hands of child welfare agencies, and fall far short of Congressional findings of a pattern of irrational discrimination. The vast majority of instances of discrimination against the disabled at the hands of state officials identified in Appendix C involve limited access to public buildings and public transportation facilities. State child welfare agencies are mentioned only three times. The task force identified one instance where “California Children’s Services refused to help with [the] cost of caring for [a] child with [a] head injury,” identified one instance where the Massachusetts Office for Children refused to license a blind person as a day care assistant, and one instance where the Massachusetts Adoption Exchange refused to let a mother with muscular dystrophy adopt a child. See id. at 979 and 986. Even if these submissions to the task force were considered legislative findings, which the Gamtt majority clearly found they were not, the Court concludes that the submissions do not rise to the level of a pattern of irrational state discrimination against the disabled in the administration of child welfare agencies. Additionally, the duty of accommodation imposed on the States under Title II far exceeds what is constitutionally mandated.