JOHN E. JONES III, District Judge.
Presently pending before the Court are the motion for summary judgment of
Plaintiffs Amir Isbell ("Mr. Isbell") and Plaintiff Bergina Brickhouse-Isbell, M.D. ("Mrs. Isbell") are husband and wife and are the natural parents of minor Plaintiff A.I. ("A.I."), born in 2009. Mrs. Isbell is also the natural parent of minor Plaintiff J.B. ("J.B."), born in 2002. (Doc. 55, ¶ 1). At all times relevant to this case, Defendants Rachel Wade and Julie Spencer were employed as caseworkers with Montour County Children & Youth Services ("CYS"), an agency of Defendant Montour County (the "County") and Defendant Craig Patterson was employed as the Executive Director for CYS. (Id. ¶¶ 5, 7-8).
On January 7, 2010, Mrs. Isbell brought A.I. to Geisinger Medical Center for what she perceived as increasing somnolence and dehydration. (Id. ¶ 9). After an examination, the doctors diagnosed A.I. with several rib fractures and head trauma; concerned that the trauma was non-accidental, medical center staff filed a report of suspected child abuse with CYS in the early morning hours of January 8, 2010. (Doc. 55, ¶ 12; doc. 59, ¶¶ 6-7). The report noted that "the child is in serious & critical condition due to concern for non-accidental trauma." (Doc. 59, ¶ 7). Defendant Rachel Wade, a caseworker then employed by CYS, was on call and received the report from Childline. (Id. ¶ 8-10; doc. 55, ¶ 12).
At approximately 5:30 a.m. on January 8, Defendant Wade met with Mr. and Mrs. Isbell and A.I. at the medical center but did not at that time discuss the possibility of altered custody arrangements, safety plans, or family plans. (Doc. 55, ¶ 14). Later, at approximately 3:00 p.m., Defendant Wade returned to the medical center and told the Isbells that "safety plans are standard procedure" when CYS receives a report of suspected child abuse; Defendant Wade then had Mr. and Mrs. Isbell and A.I.'s maternal grandmother sign a safety plan which prohibited either of the Isbells from having unsupervised contact with either A.I. or J.B. (Id. ¶¶ 22, 25-26). Consistent with CYS policy, if the Isbells did not agree to the terms of the safety plan modifying their custodial rights, CYS would file a petition with the juvenile court for emergency protective custody of A.I. (Id. ¶ 26). This safety plan remained in effect until A.I. was released from the hospital.
Also on January 8, 2010, CYS issued letters to Mr. and Mrs. Isbell which advised them of their rights with regard to the Childline report. The letters, which the Defendants contend satisfy the constitutional requirements of procedural due process, contained identical language, in pertinent part as follows:
(Doc. 58-3, Ex. 8-9).
On January 22, 2010, in anticipation of A.I.'s release from the hospital, a new safety plan, prepared by Defendant Patterson, was presented to Mr. and Mrs. Isbell by Defendant Wade; the new plan provided that Mr. Isbell must move out of the residence, prohibited any unsupervised contact between the Isbells and their children, and required that all of Mr. Isbell's contact with A.I. be supervised by CYS. (Doc. 55, ¶ 37). That safety plan again warned that noncompliance with CYS directives
On February 12, 2010, an indicated report of abuse was made with respect to Mr. Isbell. The indicated report was signed by Defendant Wade. (Doc. 58-3, Ex. 15; Doc. 55, ¶ 45). At some point thereafter, although the record is unclear as to the specific date, Defendant Spencer assumed responsibility for the Isbell case, inheriting it from Defendant Wade. (Doc. 59, ¶ 30). On February 16, 2010, the Isbells signed a new safety plan which permitted Mrs. Isbell to have unsupervised contact with her children but further restricted Mr. Isbell's contact, permitting only supervised visits which occurred at the CYS agency office. (Id. ¶ 47). On February 17, 2010, Defendant Spencer issued a letter to Mr. and Mrs. Isbell which indicated that she believed that the family would benefit from "ongoing General Protective Services (GPS)" in the area of "Parenting Needs;" the letter further indicated that "the decision to provide ongoing services ... may be appealed by the custodial parent or the primary person responsible for the care of your children" and that Defendant Spencer would reach out to the family to discuss implementation of the family service plan; the letter makes no reference to the safety plan. (Doc. 58-3, Ex. 18).
In early March of 2010, Defendant Spencer performed a home inspection and observed Mr. Isbell leaving the house to barbecue when Mrs. Isbell arrived home with the children. Mr. Isbell believed that because he was not "in" the home with the children, he was not in violation of the plan; as a result, on March 12, 2010, a new safety plan was prepared as a "clarification and an amendment" to the most recent plan, prohibiting Mr. Isbell from being within 100 yards of his son. (Doc. 55, ¶¶ 50-51). It is unclear from the record whether or not the Plaintiffs' attorney participated in drafting or reviewing the amendment.
On April 30, 2010, Defendants Spencer and Patterson met with Plaintiffs and their counsel, who wanted to discuss the progression of the case. (Doc. 55, ¶ 53; doc. 59, ¶¶ 34-35). At that meeting, Defendant Patterson approved a revised safety plan which the Plaintiffs signed, along with a "family service plan," at the direction of their counsel. (Doc. 55, ¶¶ 54-56; doc. 59, ¶ 36). Plaintiffs' counsel believed that the family had no choice but to agree to the safety plan and family service plan because Mr. Isbell's bail would be revoked if they did not comply with CYS. (Doc. 55, ¶ 56; doc. 59, ¶ 36). The family service plan, which the Defendants do not dispute is a separate document from the safety plan, was triggered by the referral regarding A.I.'s head injury and mandated a minimum of six (6) months of "family services." (Doc. 58-3, Ex. 19). The family service plan provides that: "Parents, guardians, custodians and children have the right to participate in the development of this plan; however, if you disagree with this plan, you are not required to sign and have the right to appeal." (Id. p. 1). The family service plan also contains a specific Notice of Right to Appeal, as follows:
(Id. p. 11). The notice further provides a contact number in the event the parents wish to be represented by a lawyer but cannot afford one, describes the process for filing a written appeal, and notes that "[d]uring the appeal process, the service plan, as signed by the Children & Youth caseworker, remains in effect." (Id.). The family service plan and the notice of rights do not contain any reference to the safety plan. (Id.).
On May 27, 2010, Defendant Patterson filed a dependency petition which alleged that Plaintiff A.I. was a child without parents able to care for him. (Doc. 55, ¶ 65; doc. 59, ¶ 41). A hearing was held on June 30, 2010, before Judge James of the Court of Common Pleas of Montour County, during which proceeding the Plaintiffs stipulated to an in-home dependency without prejudice or any admission of abuse conduct and at which time the Plaintiffs signed a revised voluntary safety plan. (Doc. 55, ¶ 66, 67; doc. 59, ¶ 43-45). This was the first court proceeding at which the Plaintiffs had the opportunity to challenge the safety plan. (Doc. 55, ¶ 67). When the Plaintiffs and their children later moved to Lycoming County, Montour County CYS made a referral to Lycoming County CYS, and the Plaintiffs agreed to Lycoming County's visitation plan, which required compliance with the safety plan created by Montour County CYS. (Doc. 59, ¶ 50). On May 4, 2011, the Court of Common Pleas of Lycoming County dismissed the dependency petition after a dependency trial, concluding that Mrs. Isbell was a "ready, willing, and able" parental provider. (Doc. 55-34, p. 10). At that time and to the present, the criminal charges against Mr. Isbell remain pending in Montour County.
Plaintiffs commenced this Section 1983 action by filing an eight-count complaint (doc. 1) on January 6, 2012, alleging various due process violations arising out of the child abuse investigation and voluntary safety plan implemented by Defendants Patterson, Wade, and Spencer and a claim for municipal liability against the Defendant County.
With discovery now closed, on May 8, 2013, the Plaintiffs filed a motion for summary judgment (doc. 53) contemporaneously with a supporting brief (doc. 54) and statement of undisputed facts (doc. 55). On May 17, 2013, the Defendants also moved for summary judgment (doc. 58) as to the remaining claims and the same day filed their supporting brief (doc. 60) and statement of undisputed facts (doc. 59). The cross motions have now been fully briefed (docs. 54, 60, 66, 67, 69, 71) and are ripe for this Court's disposition.
Summary judgment is appropriate if the record establishes "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant meets this burden by pointing to an absence of evidence supporting an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325, 106 S.Ct. 2548. Once the moving party meets its burden, the burden then shifts to the non-moving party to show that there is a genuine issue for trial. Fed.R.Civ.P. 56(e)(2). An issue is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a factual dispute is "material" only if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In opposing summary judgment, the non-moving party "may not rely merely on allegations of denials in its own pleadings; rather, its response must ... set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2). The non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir.2000). Arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary
Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a fact finder could draw therefrom. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir.1982). Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; there must be a genuine issue of material fact to preclude summary judgment." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505.
The remaining issue before this Court is a narrow but complex one: we are tasked to consider whether procedural protections were due to the Plaintiffs when the Defendants implemented a voluntary safety plan that removed Mr. Isbell from his family home for an extended period of time following a report of suspected child abuse, and, if the answer is in the affirmative, whether the requisite due process was provided. The individual Defendants move for summary judgment, asserting that they are entitled to qualified and/or absolute immunity and that such plans, because of their "voluntary" nature, do not require procedural protections in the first instance. They alternatively contend that even if safeguards were required, the Plaintiffs were provided ample opportunities to challenge the safety plan. In the same vein, the Defendant County asserts that the Plaintiffs' claim against it for municipal liability fails because procedural protections are not necessary when a "voluntary" plan is offered to the parents, precluding a finding that it is liable for failing to provide such safeguards.
The Plaintiffs also move for summary judgment, asserting that the record before the Court amply demonstrates that the Defendants failed to offer any pre- or post-deprivation notice of their rights in any of their dealings with the Plaintiffs, in complete violation of the Fourteenth Amendment. In doing so, the Plaintiffs rely almost exclusively on our decision in Starkey v. York County, No. 11-cv-981, Doc. 65, 2012 WL 9509712 (M.D.Pa. Dec. 20, 2012) (Jones, J.). The Defendants, in response, assert and emphasize a number of ancillary facts which they contend distinguish this matter from Starkey and warrant a different result. The most appropriate starting point for our analysis, then, is a discussion of our decision in Starkey, which we ultimately determine is virtually indistinguishable from this matter.
The facts before this Court in Starkey bear striking resemblance to the facts of record sub judice: parents took their minor child to the hospital where the father reported that the child had bumped his head; when medical examinations revealed injuries which could be consistent with child abuse, the hospital made reports of suspected child abuse to Childline, and the county family services agency became involved. An initial safety plan was implemented by the agency, which prohibited unsupervised contact with the children; thereafter, another plan was implemented which again barred unsupervised contact but also provided that the parents may not reside in the family home with their children. The parents were advised that the agency would seek emergency custody of the children if they did not agree to the terms of the plan. See Starkey, No. 11-cv-981, Doc. 65, pp. 5-7. Neither safety
The parties filed cross-motions for summary judgment, and the agency and social workers alleged, as the Defendants do here, that the Fourteenth Amendment does not require procedural protections when the county implements a safety plan because the plan is "voluntary" and thus not a deprivation imposed under color of state law. The defendants also argued that even if procedural due process concerns were implicated when safety plans are established, the parents were provided with ample notice of their rights throughout their dealings with the agency. The parents asserted that because safety plans by their nature alter and interfere with parents' rights to custody, care, and management of their children, procedural safeguards are required. Because there were no facts in dispute, the question before the Court was purely one of law: whether parents have a right to notice and an opportunity to be heard when a safety plan is implemented.
In concluding that due process concerns are triggered by safety plans, we emphasized the Third Circuit's admonition that procedural due process "requires rigorous adherence to procedural safeguards anytime the state seeks to alter, terminate, or suspend a parent's right" to the care, custody, and management of his or her children. Id. at 22 (quoting McCurdy v. Dodd, 352 F.3d 820, 827 (3d Cir.2003)). We noted further that the Circuit, in a case involving similar facts in the context of a substantive due process claim, expressly noted that "the policy of removing the suspected parent from the home during the pendency of child abuse investigations absent any procedural safeguards raises a procedural due process issue." Id. at 23 (quoting Croft v. Westmoreland Cnty. Children & Youth Servs., 103 F.3d 1123 (3d Cir.1997)). The defendants in Starkey urged this court to instead adopt Dupuy v. Samuels, 465 F.3d 757 (7th Cir. 2006), a Seventh Circuit case which held that safety plans by their nature are voluntary and require no procedural safeguards. We noted, however, that the Croft panel expressly rejected that characterization, observing that "the threat that unless [the father] left his home, the state would take his [child] and place her in foster care was blatantly coercive." Starkey, No. 11-cv-981, Doc. 65, at 26 (quoting Croft, 103 F.3d at 1125 n. 1). Thus, with reliance on Croft and McCurdy, we rejected with the agency's contention that such plans are voluntary and held that the Fourteenth Amendment requires county agencies to establish procedural safeguards when ordering the removal of a parent from the family home. Id.
After finding that procedural protections were required, we reviewed the record to determine whether such protections had in fact been offered, ultimately rejecting the agency's argument that it had provided ample notice to the parents of their rights in connection with the plan. Without deciding what level of protection, specifically, is required by the Fourteenth Amendment, we noted that the record contained a dearth of evidence of any procedural safeguards. We found no merit in the agency's argument that letters related to the Childline report, which contained notices of the right to appeal the report and to counsel in the event of an appeal, were sufficient to establish due process, observing
In Starkey, we also concluded that the parents were entitled to summary judgment on their municipal liability claim pursuant to Monell v. N.Y.C. Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). While we acknowledged that municipal liability claims are often difficult to prove and cannot be premised on a theory of vicarious liability, we noted that the county steadfastly maintained that it does not train its employees with regard to procedural safeguards because such protections were not required in conjunction with safety plans. On that basis, we concluded that no reasonable jury could find that the county had appropriately trained its employees with regard to those requisite safeguards. We thus granted summary judgment to the parents as to the Monell claim, in addition to the individual liability claims, and placed the case on a trial term on the sole issue of damages, which had not been addressed by the parties in their summary judgment papers. Starkey, No. 11-cv-981, Doc. 65, at 27-29.
The Defendants' arguments in their motion for summary judgment here largely mirror the arguments made by the county defendants in Starkey: they assert that they are entitled to qualified immunity because, first, there is no constitutional right to procedural protections in conjunction with safety plans; second, that even if such a right did exist, it was not violated because procedural protections were offered to the Isbells; and third, that the right to procedural protections was not clearly established to the individual Defendants. The Plaintiffs in their motion assert that Starkey supports a finding of liability against the individual and the municipal Defendants. We first consider whether, based on the law of this Circuit and the facts before the Court, the individual Defendants are entitled to qualified immunity as to the Plaintiffs' procedural due process claim.
Earlier in this litigation, based on the well-pled allegations of the Plaintiffs' complaint, we held that the doctrine of qualified immunity cannot protect the individual Defendants if they failed to offer any procedural protections to the Isbells either before or after depriving them of their constitutional right to the care, custody, and management of their children. (Doc. 40, pp. 11, 16-17, ___ F.Supp.2d at ___, ___-___, 2012 WL 9510121). Reasserting many arguments already rejected by this Court, the Defendants again contend that the record supports a finding of qualified immunity, and judgment in their favor, on the Plaintiffs' remaining claim. The Plaintiffs, citing our prior decision in this case and quoting at length from our analysis in Starkey, assert that the facts of the two cases are indistinguishable and compel like results. On the undisputed facts before the Court, we cannot but agree with the Plaintiffs.
The doctrine of qualified immunity shields officials acting and sued in their individual capacities. See Brandon v. Holt, 469 U.S. 464, 471-73, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985). A state actor
At the motion to dismiss stage of this matter, the Defendants argued that there is no constitutional right to due process protections in conjunction with a safety plan and that a nonexistent right could thus not be clearly established for purposes of a qualified immunity analysis. Relying on Croft, we emphasized that more than a decade ago, the Third Circuit put the Defendants on notice that coercing parents to sign a safety plan under threat that the county will otherwise take emergency custody of their children raises procedural due process concerns. (Doc. 40, p. 16-17, ___ F.Supp.2d at, ___-___, 2012 WL 9510121 (citing Croft, 103 F.3d at 1125 n. 3)). In doing so, we also relied on our decision in Starkey, which, citing Croft, rejected the county's assertion that "no judicial determination existed [at the time the defendants acted] that the use of voluntary safety plans was a violation of constitutional rights under the circumstances of this case." Starkey, No. 1:11-cv-981, No. 65, at p. 22. Given the similarities between Starkey and the matter sub judice, our analysis there is instructive:
As previously noted, more than ten years before the conduct at issue here occurred the Third Circuit decided Croft v. Westmoreland Cnty. Children & Youth Servs., 103 F.3d 1123 (3d Cir. 1997), a substantive due process case involving strikingly similar facts to those before the Court today. While Croft addressed the substantive due process concerns raised when implementing a safety plan and removing a child or parent from a home without an objective and reasonable basis to do so, the Circuit also noted that "the policy of removing the suspected parent from the family home during the pendency of child abuse investigations absent any procedural safeguards raises a procedural due
Id. at pp. 22-23. Further, it has long been established, and the Defendants do not deny, that the Fourteenth Amendment "requires rigorous adherence to procedural safeguards anytime the state seeks to alter, terminate, or suspend a parent's right" to the care, custody and management of his children. McCurdy, 352 F.3d at 827 (emphasis added); also B.S. v. Somerset Cnty., 704 F.3d 250, 271 (3d Cir.2013) (emphasizing that "at least some process is required" when state alters familial rights). With the exception of their reliance on Dupuy v. Samuels, 465 F.3d 757 (7th Cir.2006), the rationale of which we have already rejected both here and in Starkey, the Defendants offer no compelling reason for us to reject our earlier decisions, and we cannot independently conceive of any basis for doing so.
Having reaffirmed that the right to due process when a parent is removed from the family home is a clearly established right protected by the Fourteenth Amendment, we must determine next whether the Plaintiffs have established — or, in the context of the Defendants' motion, failed to establish — a violation of that constitutional right. It is clear, from the record, that the Isbells' right to the care, custody, and management of their children was altered substantially for several months, and that fact is not contested by the parties.
In attempt to distinguish this matter from Starkey, the Defendants emphasize several facts which they believe constitute sufficient due process to satisfy Croft. Specifically, the Defendants assert that: (1) Plaintiffs "were advised of their rights during the investigation;" (2) that "the bail bond requirements for Plaintiff Amir Isbell required compliance with the safety plans," (3) that the "family service plan and safety plan signed on April 30, 2010 contained a Notice of Rights," and (4) that "Plaintiffs stipulated to the safety plan before the Court of Common Pleas after
The Defendants first assert that the Plaintiffs were advised of their rights to counsel and to a hearing "as early as January 8, 2010, when [CYS] issued letters to them regarding the investigation under the Child Protective Services law." (Doc. 60, p. 9). Critically, however, the letters issued on January 8, 2010, pertained only to the parents' rights with respect to the Childline report of suspected child abuse and made no mention whatsoever of the safety plan which the parents were asked to sign on that date. Specifically, the letters advised only that the parents have the right to receive a copy of the report of child abuse, that the parents have the right to request that the report be expunged or amended if they believe the report is not correct, and that "[i]f the case goes to Juvenile Court, [the parents] have the right to have an attorney, introduce evidence and cross-examine witnesses." (Doc. 58-3, Ex. 8-9). The letters are devoid of any reference to the safety plan or the rights of the parents in connection therewith, and we thus reject the blanket contention that these letters provided the Plaintiffs' with ample notice of their rights in connection with the safety plan.
The Defendants also assert that on April 30, 2010, "Plaintiffs signed a Family Service Plan and Safety Plan that contained a Notice of Rights." (Doc. 60, p. 12). Importantly, as we have noted above, the safety plan and the family service plan are two different documents; the parties apparently do not dispute, however, that it was the safety plan, and not the family service plan, which required Mr. Isbell to remove himself from the family home throughout the pendency of the investigation. Critically, none of the Plaintiffs' claims stem from the terms of the family service plan or the circumstances surrounding the signing of said plan. For this reason, as we have concluded supra with respect to the Childline letters, we cannot agree with the Defendants that the family service plan provided any level of notice of procedural protections to the Plaintiffs with respect to the safety plan itself. See, e.g., Billups v. Penn State, No. 1:11-cv-1784, Doc. 58, p. 3, 2012 WL 13922946 (M.D.Pa. Apr. 23, 2012) (at motion to dismiss stage, rejecting contention that notice of rights contained in family service plan is dispositive of plaintiffs' due process claims where none of the plaintiffs' claims were derived from the terms of the family service plan but instead were based on separate safety plan).
Critically, it cannot be disputed that each of the several versions of safety plan signed by the Plaintiffs are facially and entirely devoid of any notice of the right to an attorney or to a hearing or of any other means by which the Plaintiffs' could challenge the deprivation of their parental rights, and the Defendants have not identified any procedure which was in fact in place to protect those rights. For those reasons, we find that there are no genuine factual disputes from which a reasonable juror could find that either the safety plan itself or any other document or correspondence provided by the Defendants adequately satisfied even the most relaxed procedural due process requirements.
The Defendants also contend that Plaintiff Amir Isbell had the opportunity to
Finally, the Defendants assert that the Plaintiffs effectively waived their procedural due process claim at the dependency petition hearing ultimately held on June 30, 2010, where the Plaintiffs stipulated to a safety plan that was, for all practical purposes, identical to the plan initially imposed by the Defendants. They argue that if one fact distinguishes this matter from Starkey in a material way, it is this one, which they believe demonstrates that the Plaintiffs suffered no harm from any deprivation and failure of process. By contrast, in Starkey, the plaintiff parents benefitted substantially from their ultimate opportunity to be heard, when the presiding judge terminated the safety plan and dismissed the dependency petition. Here, rather than proceed with the dependency hearing, the Plaintiff parents, with the assistance of their attorney, chose to stipulate to an in-home dependency and a revised safety plan. The Defendants thus assert that because the Plaintiffs agreed to a safety plan even after they had an opportunity to be heard, no harm flowed from whatever procedural due process violation may have occurred in the interim five months. Specifically, they contend that "even if there were alleged due process violations on the part of Defendants, which Defendants deny, Plaintiffs' voluntary agreement to a substantially identical safety plan after their hearing before the Court evidences that an earlier hearing would not have produced a different result. In other words, the alleged due process violations did not cause any damage to the Plaintiffs." (Doc. 67, pp. 13-14).
The Third Circuit, however, has recently rejected this argument. In B.S. v. Somerset County, 704 F.3d 250 (3d Cir. 2013), the court rejected the defendants' contention that a due process claim fails unless the plaintiff can demonstrate that additional due process protections "would have borne a different result." Id. at 273. The court in B.S. held that an otherwise viable procedural due process claim does not fail merely by lack of actual damages, noting that "[i]f nothing else, the violation of [a parent's] right to procedural due process would be a basis for awarding nominal damages." Id. (quoting Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) ("We believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury.")). Thus, a procedural due process violation, once established, entitles a plaintiff to, at minimum, nominal damages in recognition of the violation of his or her constitutional right, and we reject the Defendants' contention that the Plaintiffs' procedural due
There is no question on the record before the Court that the Plaintiffs were mired in a legal limbo, obliged to follow the terms of the safety plan imposed by the Defendants without any means of recourse for nearly five months. There is further no dispute that the Plaintiffs were given no instruction as to how they might challenge the safety plan as a whole or any of its individual terms; indeed, regardless of the question of how, the Plaintiffs were not even told whether they had such a right. The record establishes unequivocally that the Plaintiffs were not offered a means by which to challenge the safety plan at all until the Defendants, at their sole election and within their sole discretion, elected to pursue dependency proceedings, triggering the hearing which finally offered the Plaintiffs a forum to address the safety plan before a court. Thus, even construing all of the evidence in the Defendants' favor, we are compelled to conclude that the Defendants entirely failed to provide any level of procedural due process protections to the Plaintiffs in any meaningful manner either pre- or post-deprivation.
As we have observed, the critical question is whether the county agency afforded any wit of process to the Plaintiffs before or after implementing the voluntary safety plan. Stripping away the multitude of ancillary facts emphasized by the Defendants, the simple answer is no. Indeed, once the record is boiled down to only those facts relevant to our due process analysis, it is pellucidly evident that there was utterly no process established by the agency for challenging either the implementation or the terms of a voluntary safety plan, rendering this case entirely indistinguishable from Starkey and directing us to a like result. Accordingly, given the undisputed record facts, and consistent with our decision in Starkey and the Circuit's admonition in Croft, we are obligated to deny the Defendants' request for summary judgment and indeed to grant the Plaintiffs' motion, finding that the record establishes a violation of the Plaintiffs' rights to procedural due process.
The Defendants assert that, regardless of our determinations above, in any event Defendant Wade cannot be subject to liability because her involvement in the proceedings terminated before the Plaintiffs suffered any deprivation of their parental rights. Specifically, while the Defendants concede that Defendant Wade participated in drafting and signed the initial safety plan on January 8, 2010, and further concede that Defendant Wade presented the January 22, 2010 safety plan to the Plaintiffs, securing their signatures and affixing her own, they assert that she "was not involved in preparing" the safety plans which removed Mr. Isbell from the family home and prohibited his unsupervised contact with the children and that she is thus too far removed from the constitutional transgression to be subject to Section 1983 liability. (Doc. 60, pp. 27-28). This argument, however, is entirely belied by the undisputed facts of record.
It is true, as the Defendants assert, that in order for a plaintiff to succeed on a Section 1983 claim against an individual defendant, the evidence must establish that the defendant was personally involved in the constitutional violation. See Santiago v. Warminster Twp., 629 F.3d 121, 129 (3d Cir.2010). Indeed, liability cannot be predicated on a theory of respondeat superior and the plaintiff must establish that the defendant "participated in violating the plaintiff's rights, directed others to violate them, or, [in the case of a] person in charge, had knowledge of and acquiesced in his subordinates' violations."
Turning to the record before the Court, it is undisputed that Defendant Wade participated in drafting and signed the initial safety plan of January 8, 2010, which mandated an open door policy with the Plaintiffs while minor Plaintiff A.I. was in the hospital and prohibited either parent from unsupervised contact with their child. (Doc. 59, ¶¶ 9-10). Defendant Wade also testified that while she did not draft the January 22, 2010 safety plan herself, she remained actively involved in the case until it was reassigned to Defendant Spencer; specifically, she indicated that she presented the January 22 plan to the Plaintiffs, secured their signatures, and signed the plan herself. (Id. ¶ 16-18; Doc. 65, ¶ 16). Indeed, far from being disputed, Defendant Wade concedes these facts in her deposition. (Doc. 55-37, at 20:15-23:4). The Defendants are correct, however, that the record reveals no further involvement by Defendant Wade after approximately January 25, 2010.
Regardless of Defendant Wade's truncated participation in this panoply, her argument here is without merit. The undisputed — and indeed, admitted — record facts establish that Defendant Wade participated in the proceedings against the Plaintiffs for nearly an entire month and was personally involved in both drafting the initial safety plan, which curtailed the Plaintiffs' parental rights by prohibiting unsupervised contact with their children, and securing the Plaintiffs' signatures on the second safety plan, which removed Mr. Isbell from the family home and again prohibited any and all unsupervised contact. The Defendants' argument is in essence that Defendant Wade was not as involved as the other Defendants in altering the Plaintiffs' parental rights because she was not involved for the full duration of the deprivation; however, Defendants point to no case law, and our educated guess is that none exists, supporting the proposition that a Section 1983 defendant is immunized from liability simply because his or her involvement in the constitutional violation was of an established but lesser degree than other defendants. Accordingly, on the record before us, we cannot but conclude that the Plaintiffs have established, and the Defendants have failed to offer evidence to counter, that Defendant Wade "participated in violating the plaintiff's rights." Santiago, 629 F.3d at 129. We will thus deny the Defendants' motion to the extent it seeks judgment in favor of Defendant Wade for lack of personal involvement, as there can be no genuine dispute that Defendant Wade's involvement, however temporary by comparison to other individual Defendants, played a crucial role in initiating the constitutional violation at issue.
Finally, in Count V of their complaint, Plaintiffs assert a claim pursuant to Monell v. New York City Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) against the Defendant County for an unconstitutional policy and practice of failing to provide procedural due process notices, and for failing to train employees with regard to voluntary safety plans. Plaintiffs contend that because there is no evidence that the Defendants ever considered or implemented procedural protections in conjunction with voluntary safety plans, and because we granted summary judgment on the parents' Monell
In Monell, the Supreme Court established the standard for a Section 1983 claim for municipal liability and outlined stringent pleading requirements which must be met before a municipality can be held liable for the conduct of those in its employ. See id. at 691, 98 S.Ct. 2018. The Court held that local governing bodies can be subject to Section 1983 liability "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the [constitutional] injury." Id. at 694-95, 98 S.Ct. 2018. Municipal liability can also be premised on a failure to train theory, where an established and pervasive failure to train employees is the cause of the plaintiff's constitutional deprivation. See Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir.1999). In Count V, the Plaintiffs assert both municipal failure to train claims and unconstitutional custom or policy claims against the Defendants. We will address these claims seriatim.
The Plaintiffs first claim that the Defendants have failed to train their employees with respect to application of procedural safeguards when drafting and implementing voluntary safety plans and that but for this failure to train, Plaintiffs would not have suffered a constitutional deprivation. In Starkey, we articulated the applicable failure to train standard as follows:
Starkey, No. 1:11-cv-00981, Doc. 65, at 32-33 (quoting Carter, 181 F.3d at 357 (3d Cir.1999); Robert S. v. City of Phila., 2000 WL 341565, *5, 2000 U.S. Dist. LEXIS 4020, *14-15 (E.D.Pa. Mar. 30, 2000)). There, we noted that the county had failed to implement any training whatsoever with regard to the necessity of procedural protections in the context of voluntary safety plans. Id. Given that Croft had put the municipal defendants on notice more than a decade previously that removing a parent from the home without procedural protections raises procedural due process concerns, we concluded that "the municipality's total failure to address Croft's concerns and train employees regarding requisite procedural safeguards constitutes a deliberate indifference to the due process rights of parents like the plaintiffs" and granted summary judgment in favor of the plaintiffs on the Monell failure to train claim. Id. at 34.
Once again, the Defendants have failed to meaningfully distinguish this matter from Starkey. While the Defendants have directed the Court to substantial record evidence which details the various trainings offered to and completed by each of the individual Defendants in this case, including evidence that the agency
Likewise, the Plaintiffs have established, and the Defendants have offered no evidence which reasonably disputes, that the Defendant County has maintained a custom of failing to implement procedural due process protections in voluntary safety plan cases. As we noted in Starkey, in order to succeed on a claim against a municipality for an unconstitutional custom or policy, a plaintiff must establish that the widespread execution of the government's policy, either formally or informally, caused the plaintiff's constitutional injury. Id. at 34 (quoting Robert S., 2000 WL 341565, at *5-6, 2000 U.S. Dist. LEXIS 4020 at *16). In other words, a plaintiff must establish that the county or municipality is "responsible for either enacting, implementing or widespreadly engaging in a practice which constitutes or causes a constitutional violation." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). As the Third Circuit has explained, there must be sufficient evidence from which a jury could conclude that the municipality was the "moving force" behind the injury suffered by the plaintiff. Thompson v. Wynnewood of Lower Merion Twp., 2012 WL 4033706, *8, 2012 U.S. Dist. LEXIS 130742, *26-27 (E.D.Pa. Sept. 13, 2012) (quoting City of Canton v. Harris, 489 U.S. 378, 388-89, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).
The record before the Court contains the initial safety plan and each revised safety plan issued to the Plaintiffs in this case, and it cannot be disputed that not one of those plans contains any notice of a right to an attorney or an opportunity to be heard with respect to the safety plan's imposition or its terms. The record also contains standard issued correspondence to the Plaintiffs regarding the Childline report, but that letter is likewise devoid of any notice of rights in conjunction with the safety plan. Further, and in our view most critically, it is and has been the Defendants' position throughout this litigation that such notices are not contained in nor provided in conjunction with voluntary safety plans because those plans are "voluntary" and thus do not trigger Fourteenth Amendment concerns, in essence conceding that due process protections were not — and as a rule, are not — provided when safety plans are implemented. We rejected this argument in Starkey, and we reject it again today.
Lastly, we will address the issue of damages. The Defendants argue that a punitive damages award is not available against the County or Defendants Wade, Spencer, and Patterson to the extent they are sued in their official capacities and that the Plaintiffs have failed to produce evidence supporting such an award to the extent the Defendants are sued in their individual capacities. The Plaintiffs, in their responsive papers, concede that punitive damages cannot be recovered from municipal defendants in their official capacities or from the municipality itself. See Newport v. Fact Concerts, 453 U.S. 247, 271, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). Accordingly, we will grant the Defendants' motion to the extent they seek dismissal of the Plaintiffs' punitive damages claims against the Defendant County and the individual Defendants in their official capacities.
The Defendants also assert that the record does not support a finding that the individual Defendants' actions were so malicious and wanton as to support an award for punitive damages against them personally.
With punitive damages unavailable and judgment as to liability having been determined supra, the only question remaining at this juncture is whether an award of compensatory damages is supported by the record. However, while both parties have moved for summary judgment in toto, neither party has put either evidence or argument before the Court on the issue of actual damages. Accordingly, there is insufficient evidence before the Court on the issue of damages at this juncture from which we could make an appropriate determination
This Court is not unsympathetic to the myriad challenges facing the nation's social workers daily, and we are in full agreement with the Defendants' contention that they are frequently required to make instant, difficult decisions, often under tense and stressful circumstances. We are likewise cognizant of the Hobson's choice forced on social workers in these situations, where the safety of a child or children must be balanced against the constitutional rights of parents. Our decision today does not, as Defendants apparently fear, tip the scales in favor of the parents over the safety of the child. Indeed, to be clear, we do not hold that any level of due process is required prior to the deprivation attendant to a safety plan; our holding, as it was in Starkey, is simply that once a safety plan is implemented, a parent is entitled to some level of procedural protection in order to challenge the alteration of their parental rights, and that such opportunities must be provided in a meaningful and timely manner after the deprivation. Because the undisputed facts before the Court establish that the Defendants entirely failed to offer any pre- or post-deprivation protections to the Plaintiffs in connection with the safety plan, it is appropriate to enter summary judgment in the Plaintiffs' favor on the procedural due process claims.
On August 27, 2013, this Court issued a memorandum and order (Doc. 72), relevantly granting Plaintiffs' motion for summary judgment on their procedural due process claim. Defendants timely filed a Motion for Certification of Interlocutory Appeal and Stay Pending Appeal (Doc. 73), seeking immediate review of the order. For the reasons articulated herein, the Court will deny the Motion.
Plaintiffs commenced the underlying action by filing a complaint (Doc. 1) asserting,
After several procedural turns, Plaintiffs relevantly moved for summary judgment as to the due process claim, which this Court granted. See 962 F.Supp.2d 738. We rejected Defendants' qualified immunity defense, holding that the right to procedural protections is clearly established where a county agency endeavors to remove a parent from the family home. See id. at 748-50. We explained that the Third Circuit, in Croft v. Westmoreland County Children and Youth Services, 103 F.3d 1123 (3d Cir.1996), noted that "the policy of removing the suspected parent from the family home during the pendency of child abuse investigations absent any procedural safeguards raises a procedural due process issue," id. at 1125 n. 3, and that "rigorous adherence to procedural safeguards" is necessary anytime a state seeks to alter or suspend a parent's right to the custody of his or her children. McCurdy v. Dodd, 352 F.Sd 820, 827 (3d Cir.2003); see generally Starkey v. York Cnty., No. 11-cv-981, slip op. (M.D.Pa. Dec. 20, 2012). We additionally found that Mr. and Mrs. Isbell's right to the care and custody of their children was substantially altered by the safety plan and that neither the safety plan nor any other correspondence from Defendants met "even the most relaxed procedural due process requirements." 962 F.Supp.2d at 751. We imposed judgment as to liability in Plaintiff's favor and ordered a trial on damages only.
Defendants filed the present motion for certification of interlocutory appeal and stay pending appeal on September 6, 2013 (Doc. 73), as well as a supporting brief (Doc. 74). Plaintiffs filed an opposition brief on September 13, 2013 (Doc. 75), and, on September 27, 2013, Defendants filed a reply (Doc. 76). The motion is now fully briefed and ripe for disposition.
Interlocutory review was intended by Congress for only "exceptional cases." Caterpillar Inc. v. Lewis, 519 U.S. 61, 74, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) (citation and internal quotation marks omitted); see also Couch v. Telescope Inc., 611 F.Sd 629, 633 (9th Cir.2010) (explaining that 28 U.S.C. § 1292(b) provides a "narrow exception to the final judgment rule"). A district court may certify an order for interlocutory appeal where (1) the relevant order involves a "controlling question of law"; (2) there is "substantial ground for difference of opinion" on that question; and (3) a prompt appeal "may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b); see Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.1974). The burden is on the moving party to demonstrate that each requirement is satisfied. See Orson, Inc. v. Miramax Film Corp., 867 F.Supp. 319, 321 (E.D.Pa.1994) (citation omitted). Even if the statutory conditions are met, the Court may exercise its discretion to decline to certify the order. See In re Chocolate Confectionary Antitrust Litigation, 607 F.Supp.2d 701, 704 (M.D.Pa.2009) (citations omitted).
Defendants assert that there are two controlling questions in this case: whether Croft clearly establishes the right to procedural protections as to a voluntary
After considering the law and the parties' arguments, we conclude that Defendants have failed to demonstrate the existence of substantial grounds for a difference of opinion on a controlling question of law. First, what constitutes minimum due process relative to a voluntary safety plan is not a controlling question in this case because the Court found that Defendants failed to provide any process whatsoever. See 962 F.Supp.2d at 753 ("[W]e are compelled to conclude that the Defendants entirely failed to provide any level of procedural due process protections to the Plaintiffs in any meaningful manner either pre- or post-deprivation."). Thus, the disposition of this legal issue does not control the outcome of this matter. See Katz, 496 F.2d at 755 (explaining that a controlling question of law is one that "would result in a reversal of a judgment after final hearing").
Second, Defendants have not demonstrated substantial grounds for differing opinions as to the right to procedural safeguards where the state implements a voluntary safety plan. It is an established principal that where a state endeavors to change or affect the parent-child relationship in furtherance of a legitimate state interest, Fourteenth Amendment liberty interests are implicated, requiring procedural safeguards. See, e.g., B.S. v. Somerset Cnty., 704 F.3d 250, 271 (3d Cir.2013) ("[I]t is axiomatic that at least some process is required when a `state seeks to alter, terminate, or suspend a parent's right to the custody of [her] minor children.'" (quoting McCurdy, 352 F.3d at 827)); McCurdy, 352 F.3d at 827 (compelling "rigorous adherence to procedural safeguards" where parents' custodial relationship with their children is interfered with by the state (citing Stanley v. Illinois, 405 U.S. 645, 656-57, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972))). Fundamentally, due process requires "the opportunity to be heard `at a meaningful time and in a meaningful manner,'" Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)), and, here, as stated, this Court found that Plaintiffs had no such opportunity. Accordingly, we find that Defendants have not demonstrated that "controlling authority fails to resolve a pivotal matter" in this case, In re Chocolate Confectionary Antitrust Litigation, 607 F.Supp.2d at 705, and we conclude that interlocutory appeal is not appropriate.
As we decline to grant Defendants' motion for certification, it is unnecessary to address the motion to stay litigation.
