LISA PUPO LENIHAN, Magistrate Judge.
It is respectfully recommended that the Motion to Dismiss filed by McKeesport Area School District (ECF No. 74) be granted.
On July 25, 2016, Plaintiff Dwayne Thompson ("Plaintiff" or "Thompson") filed a Motion for Leave to Proceed in Forma Pauperis. (ECF No. 1.) On July 26, 2016, the Court granted the Motion and Plaintiff's Complaint, brought individually and on behalf of his minor daughter, "RMT," was filed the same day. (ECF No. 2.) On October 24, 2016, Plaintiff, and a newly added plaintiff, Pamela McDeavitt ("McDeavitt") (collectively "Plaintiffs") filed a "Verified Amended Joinder Complaint" ("Amended Complaint"). (ECF No. 13.) Thereafter, pursuant to Order of Court, Plaintiffs filed a Second Amended Complaint December 27, 2016. (ECF No. 31.) Finally, after receiving leave of court on February 8, 2017 to file a Third Amended Complaint as it relates to Defendant McKeesport Area School District (ECF No. 57), Plaintiffs filed a Third Amended Complaint on March 13, 2017. (ECF No. 68.)
The above-captioned case against moving Defendant McKeesport Area School District ("MASD"), and a host of other defendants, arises from an underlying custody dispute ("Family Court Proceedings") with the mother of RMT, Defendant Krista Abram ("Abram"). Generally, Plaintiffs allege in painstaking detail the facts and circumstances surrounding Plaintiff Thompson's attempts to obtain custody of/visitation with his biological daughter RMT. These attempts include state court proceedings in the Court of Common Pleas of Allegheny County, Family Division; PFA proceedings; alleged violation of PFA orders and attendant indirect criminal contempt ("ICC") proceedings with the involvement of the Reserve Township Police Department; acts and omissions of Children and Youth Services and MASD; the alleged professional negligence of Plaintiff Thompson's attorneys; alleged threats and intimidation by the Allegheny County Sheriff's Department; and alleged omissions by various defendants. Plaintiffs appear to allege that all named defendants were involved in an overarching conspiracy with Defendant Abram and her Defendant boyfriend, to interfere with Plaintiff Thompson's access to RMT.
Specifically, as to moving Defendant MASD, Plaintiffs allege that it is the school district where RMT currently lives and has lived for a few years. (ECF No. 68 ¶ 80.) In December of 2015, Plaintiff Thompson filed a Petition for Special Relief in state court requesting, among other things, that he be provided with RMT's school records. (ECF No. 68 ¶ 318.) Plaintiffs allege that Defendant Judge Clark granted Thompson's request and issued an order. (ECF No. 68 ¶ 320.) Plaintiffs further allege that Defendant Abram never provided RMT's school records to Thompson as she was ordered to do by Defendant Clark. (ECF No. 68 ¶ 325.) After waiting six (6) months for Defendant Abram to provide the records, Plaintiff Thompson contacted MASD. According to Plaintiffs, MASD, "through their agent, Brea Adams" ("Adams"), told Plaintiffs that in order to receive RMT's school records, "Thompson would have to bring a written notarized request to the administrative office." (ECF No. 68 ¶ 326.) Thompson delivered the written notarized request to Adams and waited for the records to be sent to him. (ECF No. 68 ¶ 327.) The records did not arrive after two weeks. (ECF No. 68 ¶ 328.)
Plaintiffs set out no claims that are specifically directed to these moving Defendants. Instead, the following claims are directed to all defendants generally: § 1985 conspiracy to interfere with civil rights; § 1983 failure to intercede in wrongs; § 1983 malicious abuse of process; § 1983 violation of the First, Fourth and Fourteenth Amendments; § 1986 for neglect to prevent; Ninth Amendment fundamental right of a parent to direct the upbringing and education and care of their children; intentional infliction of emotional distress; and parental alienation. (ECF No. 68 at Counts III, IV, V, VI, VII, VIII, XII, XIII, XIV.) Moreover, Plaintiffs do not allege facts within each count that describe how the moving Defendants violated the rights generally referred to in each count.
Plaintiffs seek only monetary relief in an amount in excess of one million dollars.
Recently, the United States Court of Appeals for the Third Circuit aptly summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester Cnty. Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)).
Importantly, the Court must liberally construe the factual allegations of the complaint because pleadings filed by pro se plaintiffs are held to a less stringent standard than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Therefore, if the Court "can reasonably read [the] pleadings to state a valid claim on which [plaintiff] could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or [plaintiff's] unfamiliarity with pleading requirements." Wilberger v. Ziegler, No. 08-54, 2009 WL 734728, at *3 (W.D. Pa. March 19, 2009) (citing Boag v. MacDougall, 454 U.S. 364 (1982) (per curiam)).
Section 1983 of the Civil Rights Act provides as follows:
42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
Defendant MASD argues that Plaintiffs have failed to state a claim against it in any of the counts directed to "all defendants."
In Count V of the Third Amended Complaint, Plaintiffs allege against "defendants all" a § 1983 malicious abuse of process claim stating that "[a]ll defendants maliciously, individually and collectively were complicit in and/or conspired to abuse the process, intentionally perverting it for their own illegitimate ends and to the extreme detriment and injury to Plaintiffs." (ECF No. 68 ¶ 459.) In Count VI, Plaintiff Thompson avers violations of his First, Fourth, and Fourteenth Amendment rights as to "defendants all." The averments state that "[d]efendants allowed and enabled defendant Abram, a serial filer, to abuse the system and use it as a weapon to annoy, harass and otherwise injure Thompson, . . . which led to Thompson being denied his rights and deprived of his liberty, freedom and property." (ECF No. 68 ¶¶ 461-62.) In Count VIII, Plaintiffs allege against "defendants all" a § 1983 "Deprivation of Rights" wherein they state that "[a]ll defendants subjected and/or caused Plaintiffs to be subjected to the deprivation of their inherent rights and privileges secured by the Constitution and laws." (ECF No. 68 ¶ 470.)
Liberally construing the Third Amended Complaint, and affording Plaintiffs every favorable inference, Plaintiffs have failed to state First, Fourth, and Fourteenth Amendment claims against MASD pursuant to the requirements of Twombly and its progeny.
First, as to the Fourteenth Amendment, it appears that Plaintiffs may be attempting to state a Fourteenth Amendment substantive due process claim as it relates to some perceived duty of the school district to protect Thompson, McDeavitt, and RMT against the actions/inactions of Defendant Abrams.
In DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189 (1989), the United States Supreme Court noted that generally, the Due Process Clause of the Fourteenth Amendment to the United States Constitution does not impose an affirmative duty upon the State to protect citizens from the acts of private persons. Id. at 198-200. In DeShaney, the United States Supreme Court rejected the claim of a boy and his mother that local officials, who had repeatedly attempted to ensure the boy's safety from his abusive father, were liable under the "special relationship" theory when the boy remained in his father's custody and was so badly beaten that the boy suffered severe brain damage. Id. at 195-96. In rejecting plaintiffs' claim pursuant to the "special relationship" theory, the Court stated that "when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." Id. at 199-200. The Court continued its analysis with the following dicta that provided the foundation for the "state-created danger" theory of liability:
Id. at 201. The United States Supreme Court emphasized that the substantive component of the Due Process Clause is "a limitation on the State's power to act, not . . . a guarantee of certain minimal levels of safety and security." Id. at 195. The DeShaney court continued that historically, the purpose of substantive due process "was to protect the people from the State, not to ensure that the State protected them from each other." Id. at 196.
In Kneipp, the United States Court of Appeals for the Third Circuit relied on the language in DeShaney to recognize that a plaintiff alleging a substantive due process violation pursuant to 42 U.S.C. § 1983 could proceed in accordance with a "state-created danger" theory where a State does play a part in the creation of the dangers faced by a private person, or where through its actions, the State renders the individual more vulnerable to them. 95 F.3d at 1205, 1211. In order to prevail on a state-created danger claim, a plaintiff must prove the following:
Sanford v. Stiles, 456 F.3d 298, 304-05 (3d Cir. 2006) (quoting Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006) (internal quotation marks and footnotes omitted)). A plaintiff's failure to satisfy any one of the above elements will defeat the state-created danger claim. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 914 (3d Cir. 1997).
In Phillips v. County of Allegheny, the United States Court of Appeals for the Third Circuit discussed the requirement of an affirmative act, emphasizing the following language in Bright:
515 F.3d 224, 235 (3d Cir. 2008) (quoting Bright, 443 F.3d at 282) (other citation omitted) (emphasis added by Phillips court). The Phillips court continued that "[t]he line between action and inaction may not always be clear. However, we have never found a state-created danger claim to be meritorious without an allegation and subsequently showing that state authority was affirmatively exercised in some fashion." Id. at 235-36.
Here, the allegations in the Third Amended Complaint do not allege that MASD acted "affirmatively" to harm RMT, Thompson or McDeavitt. The basis of Plaintiffs' claim appears to be that MASD, through its omissions, allowed and enabled Defendant Abram to abuse the court system against Thompson, so that he would be denied access to RMT. It is not the duty of a school district pursuant to the Substantive Due Process Clause to act affirmatively to protect the parties to a custody dispute from one another. Moreover, the facts of the Third Amended Complaint and Plaintiffs' submissions in this case indicate that the family court and CYF were aware of RMT's school attendance record.
Further, the Due Process Clause of the Fourteenth Amendment does not impose an affirmative duty upon the State to protect citizens from the acts of private persons. DeShaney, 489 U.S. at 198-200. The United States Court of Appeals for the Third Circuit has recognized two exceptions to this general rule. The first exception, as discussed above, concerns the situation when a "state-created danger" is involved. The second exception where the State has a duty to protect or care for individuals from the acts of private citizens arises when a "special relationship" exists. The "special relationship" theory is a very limited one that requires a custodial relationship in the nature of incarceration or institutionalization. Torisky v. Schweiker, 446 F.3d 438, 444-45 (3d Cir. 2006). Recently, in Morrow v. Balaski, the court of appeals added the following:
719 F.3d 160, 168 (3d Cir. 2013) (emphasis by Morrow court). Generally, no special relationship exists between school children and the State because parents decide where to send their children to school, children remain residents of their home, and children are not physically restrained from leaving school during the school day. Stanford v. Stiles, 456 F.3d 298, 304 n.4 (3d Cir. 2006) (discussing D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1371-73 (3d Cir. 1992) (holding that no special relationship exists between school children and the State)); Black v. Indiana Area Sch. Dist., 985 F.2d 707, 713 (3d Cir. 1993). See also Bailey v. Sch. Dist. of Philadelphia, No. 06-CV-4240, 2008 WL 343088 *2 (E.D. Pa., Feb. 7, 2008). Therefore, any attempt by Plaintiffs to state claims under the Fourteenth Amendment Substantive Due Process Clause must fail as a matter of law and any attempt to amend would be futile.
In their Response to MASD's Motion to Dismiss, Plaintiffs argue the following with regard to their malicious abuse of process claim:
(Plaintiffs' Brief in Opposition to MASD's Motion to Dismiss, ECF No. 108 at 4.)
With regard to a claim for abuse of process, the United States District Court for the Middle District of Pennsylvania has considered the following:
Bristow v. Clevenger, 80 F.Supp.2d 421, 430 (M.D. Pa. 2000) (quoting McGee v. Feege, 535 A.2d 1020, 1023 (Pa. 1987) (internal quotations and citations omitted)). Consequently, Plaintiff will prevail on a § 1983 claim for abuse of process where "prosecution is initiated legitimately and thereafter is used for a purpose other than that intended by the law." Bristow, 80 F. Supp.2d at 431 (quoting Rose v. Bartle, 871 F.2d 331, 350 (3d Cir. 1989) (other citations omitted)). Again, the Bristow court explained as follows:
Bristow, 80 F. Supp.2d at 431 (internal citations omitted).
Here, MASD's Motion to Dismiss the abuse of process claim must be granted. In Monell v. New York City Dep't of Social Servs., 436 U.S. 658 (1978), the United States Supreme Court held that municipalities and other local governmental units are "persons" subject to liability under 42 U.S.C. § 1983. In so ruling, however, the Court declared that municipal liability may not be premised on the mere fact that the governmental unit employed the offending official, that is, through application of the doctrine of respondeat superior.
In finding municipal liability pursuant to § 1983, the plaintiff must identify the policy, custom or practice of the municipal defendant that results in the constitutional violation. Id. at 690-91. A municipal policy is made when a decision-maker issues an official proclamation or decision. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986), quoted in, Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). A custom or practice, however, may consist of a course of conduct so permanent and widespread that it has the force of law. Andrews, 895 F.2d at 1480. To establish municipal liability based upon a custom or practice, the plaintiff must demonstrate that the decision-maker had notice that a constitutional violation could occur and that the decision-maker acted with deliberate indifference to this risk. Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000). Finally, plaintiff must show a causal connection between the custom or policy and the violation of the constitutional right. Bielevicz v. Dubinon, 915 F.2d 845, 850-51 (3d Cir. 1990). That is, a plaintiff must demonstrate an "affirmative link" or "plausible nexus" between the custom or practice and the alleged constitutional deprivation. Bielevicz, 915 F.2d at 850-51.
A municipal liability claim against MASD must necessarily fail because the facts alleged in the Third Amended Complaint do not suggest that MASD had a policy, custom or practice that resulted in a constitutionally cognizable violation. Plaintiffs complain only that MASD's employee, Brea Adams, acting in concert with RMT's biological mother, Defendant Abram, "set up" Plaintiff Thompson so that an ICC would be brought against him. There are no allegations that it was an official policy of MASD, or a custom or practice, that MASD used PFA/ICC procedures to alienate parents from their children. Instead, the allegations concern only the actions of a MASD employee as they relate to Thompson and RMT. As noted above, municipal liability may not be premised on the mere fact that the governmental unit employed the offending official. Relatedly, Plaintiffs have failed to allege facts that MASD maintained a policy, custom or practice with "deliberate indifference" to the constitutional deprivations allegedly brought about by any policy or custom. In light of the detailed facts and circumstances alleged in the Third Amended Complaint, any attempt to amend this claim against MASD would be futile.
In its review of the voluminous Third Amended Complaint and Plaintiffs' various submissions, the Court can uncover no bases for Plaintiffs' First Amendment claim against MASD. Therefore, MASD's Motion to Dismiss Plaintiffs' First Amendment claim should be granted. Any attempt to amend would be futile.
Count XII—Ninth Amendment fundamental right of a parent to direct the upbringing and education and care of their child(ren)—fails as a matter of law. "The Ninth Amendment does not independently provide a source of individual constitutional rights." Clayworth v. Luzerne Cty.,Pa., 513 F. App'x 134, 137 (3d Cir. 2013) (citing Jenkins v. Comm'r, 483 F.3d 90, 92 (2d Cir. 2007)).
Therefore, it is respectfully recommended that MASD's Motion to Dismiss Count XII for violation of Plaintiff Thompson's Ninth Amendment rights be granted.
In order to state a claim for conspiracy, Plaintiffs are required to show "`a combination of two or more persons to do a criminal act, or to do a lawful act by unlawful means or for an unlawful purpose.'" Panayotides v. Rabenold, 35 F.Supp.2d 411, 419 (E.D. Pa. 1999)(quoting Hammond v. Creative Financial Planning, 800 F.Supp. 1244, 1248 (E.D. Pa. 1992)). See also Spencer v. Steinman, 968 F.Supp. 1011, 1020 (E.D. Pa. 1997) (citing Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. 1974)). A conspiracy claim requires specific allegations "which are particularized, such as those addressing the period of the conspiracy, the object of the conspiracy, and certain other action of the alleged conspirators taken to achieve that purpose." Id. "It is not enough that the end result of the parties' independent conduct caused plaintiff harm or even that the alleged perpetrators of the harm acted in conscious parallelism." Spencer, 968 F. Supp. at 1020. Rather, there must be a showing that the alleged conspirators "directed themselves toward an unconstitutional action by virtue of a mutual understanding or agreement." Chicarelli v. Plymouth Garden Apartments, 551 F.Supp. 532, 539 (E.D. Pa. 1982) (citing Tarkowski v. Bartlett Realty Co., 644 F.2d 1204 (7th Cir. 1980)). The United States Court of Appeals for the Third Circuit has made clear that in light of Twombly and its progeny, there must be "`enough factual matter (taken as true) to suggest that an agreement was made,' in other words, `plausible grounds to infer an agreement.'" Great Western Mining & Mineral Co.v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010) (quoting Twombly, 550 U.S. at 556). The facts alleged must raise "a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action." Twombly, 550 U.S. at 557.
Here, while Plaintiffs attempt to allege an overarching conspiracy among defendants, claiming that they acted in concert at various times and at various locations in order to interfere with their rights, the claims are pure speculation and do not amount to sufficient facts from which this Court could infer conspiracy. Plaintiffs do not direct the Court to facts that suggest a preceding agreement. Instead, the Third Amended Complaint offers only a sheer possibility that all Defendants engaged in a conspiracy. See Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556-57).
Therefore, it is respectfully recommended that Defendant MASD's Motion to Dismiss Plaintiffs' claims for conspiracy be granted.
Because the Court recommends that all claims over which it has original jurisdiction be dismissed, it is further recommended that the Court decline to exercise its supplemental jurisdiction over all state law claims pursuant to 28 U.S.C. § 1367(c)(3).
It is respectfully recommended that the Motion to Dismiss filed by Defendants McKeesport Area School District (ECF No. 74) be granted.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.
