SURRICK, District Judge.
Presently before the Court is the Motion for Summary Judgment (ECF No. 27) filed by Defendants, City of Philadelphia, Nefertiti Savoy, and Richard Ames, Esquire (collectively the "City Defendants"). For the following reasons, the City Defendants' Motion will be granted.
This case presents a sordid tale of abuse of an innocent child at the hands of her aunt. Beatrice Weston was born on December 9, 1991. She is the youngest of her mother Vicky Weston's five children. While raising her children, Vicky Weston had extensive contact with the City of Philadelphia, Department of Human Service (DHS) as a result of her mental status and her "severe difficulty carrying out the role of parent." (Pl.'s Resp. to Defs.' Mot. Exs. D—F, ECF No. 30.) On July 19, 2002, the Court of Common Pleas of Philadelphia County, Pennsylvania, Family Division, held a truancy hearing with regard to Beatrice's older brother. (Undisputed Material Facts ¶ 2, ECF No. 27-2.)
Beatrice, her mother Vicky, maternal aunt Linda Weston, and maternal cousin Jean McIntosh were all present at the August 16, 2002 hearing. (Undisputed Material Facts ¶ 7.) Also present at the hearing was Child Advocate Tara Wayt, Esquire, on behalf of Beatrice, city solicitor Rick Ames, Esquire, on behalf of DHS, and DHS case worker Savoy. (Id. at ¶ 10.) Plaintiff contends that Savoy intended to recommend to the court that Beatrice remain at her mother's home, with Services to Children in their Own Home (SCOH) to be provided. After talking to Vicky and Linda Weston, Savoy recommended to the court that Beatrice go to live with her aunt, Linda Weston. (Pl.'s Resp. 2-3.) Relative to this recommendation, representations were made to the court as follows:
(Aug. 16, 2002 Hr'g Tr. 7-12, Defs.' Mot. Ex. E.) The record reflects that Vicky Weston did not voice any objection to this proposed custody arrangement. Notwithstanding Savoy's representation to the court that no investigation of Linda Weston's home had occurred, the court adjudged Beatrice dependent and placed her in the temporary legal custody of Linda Weston. (Id. at 9-10.) After ordering DHS to investigate Linda Weston's home, a follow-up hearing was scheduled for October 15, 2002. (Id. at 11-12.) Beatrice was not committed to the custody of DHS. (Undisputed Material Facts ¶ 21.)
As part of the court ordered temporary legal custody arrangement, SCOH services were to be provided at Linda Weston's home. DHS contracted with Intercultural Family Services, Inc. (IFS), a third-party vendor, to provide these services. (Id. ¶ 25.) On October 11, 2002, Savoy and IFS supervisor, Migdalia Rodriguez, visited Linda Weston's home for an initial inspection. (Pl.'s Resp. 4.) Beatrice and Linda Weston were both present for the inspection. (Undisputed Material Facts ¶ 31.) It was noted that the "home appears safe," and "all utilities are operable [and] there is adequate sleeping arrangements." (Id.) IFS case worker Danielle Hibberd was thereafter assigned to handle the SCOH services for Beatrice. (Id. at ¶ 32.) The October 11, 2002 visit was the only in-home visit by Savoy to Linda Weston's home. (Pl.'s Resp. 4.)
During the months that followed, Danielle Hibberd had nineteen in-person visits with Beatrice and Linda Weston, which included one visit with Beatrice at her school outside the presence of Linda Weston. (Undisputed Material Facts ¶¶ 50-51.) These visits were held on regular intervals from October 2002 through April 2003. (IFS Case Manager's Contact Notes, Pl.'s Resp. Ex. M.) Notes taken at each visit reflect that Ms. Hibberd viewed Beatrice as being in a safe, stable environment and doing well with her aunt. (Id.) As of November 13, 2002, Ms. Hibberd notes that she intended to recommend to the court that the frequency of supervision be decreased. On November 18, 2002, she noted that the court was aware of the intent to dismiss supervision in the near future. (Id.) On March 26, 2003, Ms. Hibberd noted that the case would be closing soon, and on April 2 and 9, 2003, Ms. Hibberd indicated that she would be recommending to the court that the supervision, and case, be closed. (Id.) According to Plaintiff, Ms. Hibberd was a novice case worker and Beatrice's case was one of the first SCOH cases she handled. (Pl.'s Resp. 6.)
During the time of the IFS visitations to Linda Weston's home, the court retained jurisdiction over the matter. Placement review hearings were held after the August 16, 2002 hearing. A hearing was held on October 15, 2002, where Beatrice, Vicky, and Linda Weston appeared, along a DHS social worker,
A final dependency hearing was held on April 17, 2003.
On December 1, 2003, after the court's discharge of Beatrice's dependency proceedings, a hearing was held with regard to Beatrice's brother. (Pl.'s Resp. 9.) The judge presiding over this hearing had supervised the majority of Beatrice's dependency proceedings. (Id.) Savoy and Child Advocate Ms. Wayt were present for the hearing. (Id.) During the course of the hearing, Vicky and her sister, Florence Weston, represented to the court that Linda Weston had previously been convicted of murder. (Id.) The file notations of Ms. Wayt reflect that the court directed DHS to investigate these claims and file a restraining order if Beatrice was not safe. (Id.) Beatrice's mother, Vicky, knew of her sister's prior murder conviction when she appeared at the initial August 16, 2002 hearing, but said nothing. (Undisputed Material Facts ¶ 9.)
Prior to, and during Beatrice's dependency proceedings, Savoy failed to investigate Linda Weston's background. Specifically, Savoy failed to "obtain a ChildLine
The record contains no evidence that any individual involved in the dependency proceedings—the Child Advocate attorneys Ms. Wayt or Mr. Purl, IFS, or any other employee of DHS—performed an investigation into Linda Weston's past. It was Savoy's affirmative belief that no criminal background and ChildLine check were required for Linda Weston, because of the temporary nature of the legal custody arrangement. (Id. at 5.) However, Savoy's supervisor, Zachary Margolies, testified that he expected that DHS case workers would be performing risk assessments, criminal background, and Child-Line checks on any individual with whom the court places a child. (Id. at 19-21.) Notwithstanding Mr. Margolies' expectations, the record contains no evidence that DHS policy—policies that comport with Pennsylvania state policies—require such an investigation when dealing with temporary legal custody arrangement.
The record reflects that over the ensuing years, Beatrice was subjected to imprisonment and horrible abuse by Linda Weston and others. Among other things, she was beaten, sexually assaulted, denied food, and denied schooling. Linda Weston forced Beatrice to move from Philadelphia, PA to differing locations in Virginia, Texas, and Florida, before eventually returning to Philadelphia. (Pl.'s Resp. Ex. AA.) The record is not entirely clear as to when the abuse began, however it continued until October 2011 when Beatrice was finally rescued by police.
Plaintiff initiated this litigation against the City Defendants in the Court of Common Pleas of Philadelphia County, Pennsylvania on August 20, 2012. (Defs.' Not. of Removal, ECF No. 1.) The City Defendants removed Plaintiff's suit to this Court on September 7, 2012, asserting federal question jurisdiction under 28 U.S.C. § 1441. (Id.) The City Defendants filed a Third Party Complaint on May 17, 2013 (Defs.' Third Party Compl., ECF No. 13), joining Intercultural Family Services, Inc. (IFS) as a third party defendant in this litigation. On September 26, 2014, after completion of discovery, the City Defendants filed the instant Motion. (Defs.' Mot., ECF No. 27.) Plaintiff timely responded to the City Defendants' Motion (Pl.'s Resp., ECF No. 31), and the City Defendants thereafter filed a Reply Brief. (Defs.' Reply Br., ECF No. 33). IFS did not take a position on the City Defendants' Motion.
A party is entitled to summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
Plaintiff brings this Section 1983 claim under a state-created danger theory of liability. Plaintiff's theory focuses on the inactions of Savoy, specifically the failure to properly investigate the background and circumstances of Linda Weston and the effect on Beatrice.
The state-created danger theory of liability finds its roots in the Supreme Court's decision in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). In DeShaney, Joshua DeShaney was placed in the custody of his father following his parents' divorce. 489 U.S. at 191, 109 S.Ct. 998. Over a two-year period, county authorities were on notice of suspected abuse of Joshua by his father, but no further action was taken aside from the state temporarily taking custody of Joshua before recommending to the juvenile court that he be returned to his father a few days later. Id. at 192, 109 S.Ct. 998. He was, in fact, returned to his father. A case worker, assigned to make regular visits to the home, noted injuries to Joshua and suspicions that someone in the home was abusing Joshua, but did nothing more. Id. Eventually, Joshua was beaten so severely
An action was brought pursuant to 42 U.S.C. § 1983 against the county and county children and youth services agency. Id. The Court concluded that the county agency had no duty to protect Joshua. Id. at 201, 109 S.Ct. 998. This conclusion was consistent with prior Court rulings, which read the Due Process Clause to "confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." Id. at 196, 109 S.Ct. 998 (collecting cases). The Court ultimately concluded that because the "State had no constitutional duty to protect Joshua against his father's violence," its failure to do so "simply does not constitute a violation of the Due Process Clause." Id. at 202, 109 S.Ct. 998.
Drawing on the DeShaney Court's language that "[w]hile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them," id. at 201, 109 S.Ct. 998, several appeals courts developed the state-created danger theory of liability. The state-created danger theory was formally adopted by the Third Circuit in Kneipp v. Tedder, 95 F.3d 1199, 1201 (3d Cir.1996). Under 42 U.S.C. § 1983, liability may attach where the state actors create or enhance a danger that deprives a plaintiff of her Fourteenth Amendment substantive due process rights. Id. at 1205. In the case of Bright v. Westmoreland County, 443 F.3d 276 (3d Cir.2006), the court set forth four elements that must be established by a plaintiff proceeding under a state-created danger theory:
Id. at 281.
The City Defendants contend that Plaintiff has failed to establish each of these elements. Because we find that the fourth element is dispositive, we need not address elements one, two, and three. The fourth element requires an affirmative act on the part of the state actor that creates the danger. Id. at 282 ("Liability under the state-created danger theory is predicated upon the state's affirmative acts which work to the plaintiffs' detriments in terms of exposure to danger.") (citations omitted) (emphasis original). "It is misuse of state authority, rather than a failure to use it, that can violate the Due Process Clause." Id. However, "the line between action and inaction is not always easily drawn." Morrow v. Balaski, 719 F.3d 160, 177 (3d Cir.2013) (en banc). The test "is not intended to turn on the semantics of act and omission. Instead, the requirement serves an important purpose: to distinguish cases where government officials might have done more to protect a citizen from a risk of harm in contrast to cases where government officials created or increased the risk itself." Id. at 186 (Ambro, J., concurring in part and dissenting in part). "[T]he fourth element is satisfied where the state's action was the `but for cause' of the danger faced by the
The City Defendants contend that Plaintiff fails to establish the fourth element because there is no evidence to show that Savoy acted affirmatively to render Plaintiff more vulnerable to danger. Plaintiff counters that Savoy affirmatively misused state authority in the following ways: (1) recommending Beatrice live with Linda Weston in the absence of prior information regarding suitability as a custodian; (2) performing a "grossly superficial and inaccurate" investigation into Linda Weston and her home; (3) deficient oversight of Beatrice's SCOH services by IFS; (4) representing to the state court Beatrice was safe with Linda Weston during the duration of the dependency proceedings; and (5) violating the state court's December 2003 order to investigate the claims that Linda Weston had a criminal history involving murder. (Pl.'s Resp. 15.) Obviously, Plaintiff's contentions are troubling in light of the fact that Savoy is one of the principle individuals ensuring Beatrice's well-being. However, Plaintiff's contentions are in reality an attempt to re-characterize Savoy's failures to act as affirmative acts. See Sanford v. Stiles, 456 F.3d 298, 312 (3d Cir.2006) (per curiam); Morrow, 719 F.3d at 178. Clearly, Savoy should have performed a more thorough investigation into Linda Weston, particularly after the state court's directive to do so. No doubt Savoy's failures constitute negligence. However, establishing negligence is not sufficient, as negligence alone does not rise to the level of a deprivation of due process. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) ("[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.") (citation omitted); DeShaney, 489 U.S. at 202, 109 S.Ct. 998 ("[T]he Due Process Clause of the Fourteenth Amendment, which, as we have said many times, does not transform every tort committed by a state actor into a constitutional violation"). The record here fails to establish anything more than Savoy failing to have done more when the circumstances called for more. Such failures do not rise to the level necessary to satisfy the fourth element of the state-created danger theory. Bright, 443 F.3d at 282 ("It is misuse of state authority, rather than a failure to use it, that can violate the Due Process Clause.").
The activities of Savoy that Plaintiff contends are affirmative acts simply are not, in the context of the fourth element. Failing to properly investigate Linda Weston is not an affirmative act. Failing to properly monitor SCOH services provided by IFS is not an affirmative act. And failing to follow-up on Linda Weston's criminal history in accord with the December 2003 state court directive, is not an affirmative act. These failures to act do not constitute an affirmative misuse of state authority. Furthermore, the link between representations made by Savoy to the state family court, that Linda Weston wished Beatrice to live with her and that Beatrice was safe, and the harm suffered do not justify the imposition of liability under the Due Process Clause of the Constitution. Pennsylvania law requires that the family court, acting in the best interests of the child, make its own independent finding that an individual is qualified to be deemed a legal custodian of a child—a finding that the state court made here. In re Lowry, 506 Pa. 121, 484 A.2d 383, 387 (1984) (stating that an individual must "be found by the court to be qualified to receive and care for the child.'") (emphasis in original) (internal quotation marks omitted).
This is not a case where Savoy's conduct, alone, affirmatively placed Beatrice in a position of danger that she would not otherwise have been in. Savoy played no part in the dependency proceedings being initiated. Moreover, it is tenuous at best to suggest that her representation to the court that the family preferred the custodial arrangement, at the initial dependency hearing, constituted the "but for" cause of Beatrice being placed with Linda Weston. In addition, Savoy's subsequent failures—to investigate Linda Weston, oversee SCOH services, and follow-up on the December 2003 court order—cannot be said to have affirmatively created the danger to Beatrice. Accordingly, a constitutional violation cannot lie here. The record does not support an affirmative act on the part of Savoy that was the but for cause of Beatrice's harm.
The cases are legion where a child was abused, a state social worker should have done more, but courts determined that those failures did not rise to the level of a due process violation. It is worth noting that the failures of Savoy in this case pale in comparison to the inactions of other social workers who have neglected to do more in the face of actual abuse occurring. For example, in DeShaney, the state actors were plainly on notice of abuse occurring, failed to do more, yet those failures were not determined to be constitutional violations. DeShaney, 489 U.S. at 201-02, 109 S.Ct. 998. There are many other examples. See Sanford, 456 F.3d at 311-12 (holding no constitutional violation where high school received note from student indicating intent to commit suicide, spoke to student about note, and student ended up committing suicide); Bennett ex rel. Irvine v. City of Phila., 499 F.3d 281, 289 (3d Cir.2007) (holding no constitutional violation despite DHS discharging supervision of certain siblings, and later failing to adequately investigate claims of child abuse, where multiple children ended up abused and one murdered); Morrow, 719 F.3d at 178-79 (holding no constitutional violation where schoolchildren repeatedly bullied and abused by classmate, despite school knowing of abuse and acknowledging to children's families it could not protect them); S.S. v. McMullen, 225 F.3d 960, 964 (8th Cir.2000) (en banc) (holding no constitutional violation where state agency returned custody of child to father who was known to allow child to have contact with known pedophile who ultimately abused child); Lewis v. Anderson, 308 F.3d 768, 775-76 (7th Cir.2002) (holding no constitutional violation where foster children placed with adoptive family who did eventually abuse children because state did not know or suspect the family to be child abusers, notwithstanding knowledge of a single instance of prior abuse); Forrester v. Bass, 397 F.3d 1047, 1059 (8th Cir.2005) (holding no constitutional violation where social workers failed to comply with state requirements for investigating multiple hot line calls reporting abuse, contacting law enforcement, and providing preventive and protective services with regard to four children who were brutally abused and two eventually murdered);
The cases of Nicini v. Morra, 212 F.3d 798 (3d Cir.2000), and Burton v. Richmond, 370 F.3d 723 (8th Cir.2004), provide interesting factual parallels as to why Savoy's failure to thoroughly investigate Linda Weston here does not amount to a constitutional violation. In Nicini, a child was placed by a state agency in foster care. 212 F.3d at 801. After trouble with other foster placements, the child ran to the Morra's home and requested that he be permitted to live there. The agency investigator acquiesced. Id. at 802. The agency investigator interviewed the Morras at a home visit, was told that nothing would prevent them from being foster parents, and thereafter represented to the state family court that the Morras would qualify as foster parents. Id. at 802-3. Two weeks after the state court hearing, the investigator sent an application to the Morras requesting relevant background information. The application was not returned by the Morras. Id. at 804. Four days later, the plaintiff fled the home claiming Mr. Morra provided him with drugs and alcohol and abused him. Id. A subsequent background check revealed that Mr. Morra was convicted sixteen years earlier for corrupting the morals of a minor and distributing controlled substances to a minor. Id. The District Court concluded that the record did not support a finding that the acts of the investigator constituted a deliberate indifference to the rights of Nicini, and judgment was entered for the defendants. The Third Circuit affirmed. Id. at 814-15. Given the fact that Nicini wished to remain at the Morra home, the investigator's impression was that Nicini was doing well there (corroborated by a separate investigator and the state court), and given the fact that the only suspicion the Morra home was not appropriate was a complaint by Nicini's mother, the Third Circuit determined that "a jury could not permissibly conclude that [the] investigation was so inadequate as to manifest deliberate indifference to Nicini's rights." Id. at 814.
In Burton, a plaintiff's mother left the plaintiff and her siblings with their aunt. 370 F.3d at 725. The aunt and the aunt's mother later agreed that four of the children would live with the aunt's mother. Id. To prevent the plaintiff's mother from returning and taking the children, the aunt and her mother contacted the state family agency to assist with obtaining a court order recognizing the custodial arrangement. Id. The court ordered the agreed upon custodial arrangement, but retained legal custody of the children. Id. Neither of the involved state case workers conducted a home study or criminal background check prior to the court's placement order. Id. at 726. The plaintiff's mother later returned to regain custody of her children and informed one of the agency case workers that her daughter was being abused. Id. One month later, the other case worker was informed that the mother appeared at a family barbeque making accusations that her daughter was being abused. Id. No action was taken by either case worker with regard to the allegations of abuse. Id. However, the children were later removed from the home after a subsequent hotline report of abuse. Id. The Burton court ruled that the failure to investigate the home prior to the court's placement, and the failure to follow-up on the reports of abuse, were not constitutional violations. Id. at 728-30. Specifically, the court ruled that there were no affirmative acts on the part of the state, and the failures to act by the case workers were not conscience shocking. Id. at 728-29.
Id. at 202-3, 109 S.Ct. 998. Accordingly, we are compelled to conclude that the record here does not sustain liability under the state-created danger theory. The City Defendants' Motion will be granted.
The City Defendants argue that, in the event that the Court were to find that there was a constitutional violation, Savoy is nevertheless immune from suit. We agree. Under Third Circuit precedent, it appears that Savoy would be entitled to immunity from the time the dependency petition was filed until it was discharged on April 17, 2003. In the Third Circuit, caseworkers, such as Savoy, are "absolutely immune from suit for all of their actions in preparing for and prosecuting such dependency proceedings." B.S. v. Somerset Cnty., 704 F.3d 250, 262 (3d Cir.2013) (citing Ernst v. Child & Youth Servs. of Chester Cnty., 108 F.3d 486 (3d Cir.1997)). Recommendations made to the court in dependency proceedings fall within the blanket of immunity. This immunity does not apply to "investigative or administrative actions taken outside the context of a judicial proceeding." Id. (citing Ernst, 108 F.3d at 497 n. 7).
While the Court of Appeals has not clearly defined when situations fall within these categories, in B.S. the court expanded the immunity granted in Ernst and has held that a social worker's investigative activities performed during, and for purposes of, on-going court dependency proceedings constitute "preparing for and prosecuting ... dependency proceedings" and thus are entitled to absolute immunity. Id. at 270. In discussing the rationale behind immunity for a social worker, the court noted that unconstitutional acts of
Since Plaintiff has failed to establish a constitutional violation, the claim of municipal liability against the City of Philadelphia must also be dismissed. The Supreme Court has determined that a finding of a constitutional violation is a prerequisite to finding municipal liability. City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986); City of Canton, Ohio v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Grazier ex rel. White v. City of Phila., 328 F.3d 120, 124 (3d Cir.2003); Mulholland v. Gov't Cnty. of Berks, Pa., 706 F.3d 227, 238 n. 15 (3d Cir.2013) ("It is well-settled that, if there is no violation in the first place, there can be no derivative municipal claim"). Therefore, the Motion of the City Defendants will be granted on the claim of municipal liability.
In any event, the record does not support a claim of municipal liability under Monell. Plaintiff contends that DHS's failure to have a policy requiring criminal background and ChildLine checks for temporary legal custody placements, and the failure to train employees in the performance of ChildLine checks, caused the constitutional violation. We noted that DHS policies and training are in accord with Pennsylvania state policies and training on these topics. However, Plaintiff attempts to counter these arguments in responding to the City Defendants' Motion as to Savoy. Plaintiff relies upon the deposition testimony of Savoy's supervisor to contend that it was DHS policy to perform criminal background and ChildLine checks in this instance. (Pl.'s Resp. 19-21.) Even considering this testimony, there is nothing in the record to suggest that Savoy was anything more than an underperforming outlier. This does not, in itself, amount to a constitutional violation. Harris, 489 U.S. at 390-91, 109 S.Ct. 1197.
The record here falls short of establishing that the failure to train Savoy was the driving force behind the alleged harm. Grazier, 328 F.3d at 124-25. Moreover, the record does not substantiate claims that through deliberative conduct, DHS "policy" or "custom" was the driving force behind the harm. Board of Cnty. Com'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). "A showing of simple or even heightened negligence will not suffice," and an "inadequate training" claim applies only in "limited circumstances." Id. at 407, 117 S.Ct. 1382; Brown v. Muhlenberg Twp., 269 F.3d 205, 215 (3d Cir.2001) ("The scope of failure to train liability is a narrow one."). Accordingly, the City Defendants' Motion will be granted as to the claim of municipal liability.
Under the prevailing law, the failures of Savoy and others to have done more to protect Beatrice Weston do not constitute a deprivation of substantive due process rights under the Fourteenth Amendment. Accordingly, the City Defendants' Motion will be granted.
An appropriate Order follows.
It is further
