SEAN J. McLAUGHLIN, District Judge.
This civil action arises from events involving the Plaintiff's unsuccessful attempts to obtain custody of her two minor grandchildren following the death of her son, who was the children's biological father. Plaintiff Barbara Rees has asserted a cause of action under 42 U.S.C. § 1983 for the alleged violation of her federal civil rights as well as various claims premised on Pennsylvania tort law. She has named as Defendants the Erie County Office of Children and Youth ("OCY") and several of its employees and/or agents.
The case was originally commenced in the Erie County Court of Common Pleas and removed to this Court pursuant to 28 U.S.C. § 1441. This Court has subject matter jurisdiction over the case pursuant to 28 U.S.C. §§ 1331, 1343(a) and 1367(a).
Presently pending before me is the Defendants' motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons that follow, the motion will be granted insofar as it relates to Plaintiff's federal claim under § 1983. As to the remaining state law
Pearl Dombrowski ("Pearl") and Ruby Peterson ("Ruby") are the minor children of Carrie Peterson ("Peterson") and Joseph Dombrowski, who is now deceased. (Complaint ¶¶ 1-2.) Plaintiff Barbara Rees ("Rees") is the mother of Joseph Dombrowski and the paternal grandmother of Pearl and Ruby. (Id. at ¶ 4.) Defendants Karleen Vogt ("Vogt") and Cyndi Valimont ("Valimont") were employed at all relevant times by OCY as, respectively, a caseworker and a supervisor. (Id. at ¶¶ 8, 11.) Defendant Amy Jones, Esq. is an assistant solicitor for the County of Erie who represented OCY in matters pertinent to this litigation. (Id. at ¶ 14.)
On or about April 5, 2007, Defendant OCY began an investigation of alleged neglect on the part of Pearl and Ruby's biological mother, Peterson. (Complaint ¶ 20.) Three months later, in July of 2007, the children were taken into custody by OCY and placed into a foster home as the result of a judicial determination that continued placement in Peterson's home would be contrary to the children's welfare. (Id. at ¶¶ 21-22.)
Prior to these events and the involvement of OCY, Pearl had spent significant time with Rees and, with the agreement of her biological parents, had been cared for by Rees over a period of seven months. (Complaint ¶ 18.) During this same period of time, Peterson had denied Rees custody over Ruby on the ground that she did not believe Joseph Dombrowski to be Ruby's biological father. (Id. at ¶ 19.)
On August 4, 2007, shortly after the children had been placed into an OCY foster home, Joseph Dombrowski died unexpectedly. (Complaint ¶¶ 21, 24.) On or about that date, genetic tests were taken by the Domestic Relations Section of the Erie County Court of Common Pleas. (Id. at ¶ 25.)
A few days later, a court hearing was held concerning a Dependent Child Petition filed by OCY on behalf of the children. (Complaint ¶ 26.) At this hearing, Rees notified Defendant Jones and OCY that she wished to assume the responsibilities of her deceased son and care for the children. (Id. at ¶ 27.) In addition to Rees, several members of the children's biological family advised OCY that they wished to care for and/or adopt Ruby and Pearl. (Id. at ¶ 28.) Defendants nevertheless refused to allow Rees or other family members to care for or adopt the children on the ground that the paternity of the children had not been officially determined. (Id. at ¶ 29.)
On or about November 29, 2007, the results of the genetic tests revealed Joseph Dombrowski to be the biological father of both Pearl and Ruby. (Complaint ¶ 31.) Rees was then granted permission to visit the children each week for a period of one hour at the home of the foster parents. Later, these visits were expanded to include activities outside of the foster home for a period of up to one and one-half hours, including travel time. (Id. at ¶¶ 32-33.)
On December 12, 2007, Rees completed an Emergency Caregiver Kinship Authorization and Consent form and delivered the same to OCY. (Complaint ¶ 34.) Rees was subsequently notified by Defendants Vogt and Valimont that her form would remain on file and that the children would be placed with her only if they were not reunified with their biological mother. (Id. at ¶ 35.)
Two months later, in March of 2008, Valimont and Vogt advised Rees that her weekly visits would be reinstated under the conditions that they occur at the convenience of the foster parents and that they not exceed two and one-half hours. (Complaint ¶¶ 40-41.) Thereafter, Rees sought overnight visits with the children but was informed by Vogt that such visits would not be allowed as they would interfere with the reunification process between the children and Peterson. (Id. at ¶¶ 42-43.) Notwithstanding this, the children's foster mother gave Rees verbal approval of her request and indicated that Peterson had never made any attempt to see the children. (Id. at ¶ 44.)
On or around July 7, 2008, Rees was notified by OCY that the reunification process between the children and their mother had been terminated. (Complaint ¶ 45.) That same day, Defendant Valimont telephoned Rees about her interest in pursuing the Kinship Care process, and the process was re-initiated two days later on July 9. (Id. at ¶¶ 46-47.) In spite of the kinship care process having been renewed, Plaintiff was notified later that month by the children's foster mother that OCY had informed her it would require agency approval for each of Rees's visits with the children. (Id. at ¶ 48.)
On or around July 28, 2008, the Court of Common Pleas entered an order involuntarily terminating Peterson's parental rights. (Id. at ¶ 49.) At that hearing, the children's guardian ad litem recommended that the children be placed with Rees as next of kin; however, Defendant Vogt recommended adoption by the foster parents on the ground that the children's father, who had been raised by Rees, had committed suicide. (Id. at ¶¶ 50-52.) Notwithstanding these events, Rees's Kinship Care application was approved on or around August 28, 2008 (Id. at ¶ 53.)
Approximately two weeks later, Rees filed a formal grievance against OCY with Mary Ann Daniels, Director of the Erie County Department for Human Services, Office of Children and Youth Services. (Complaint ¶ 54.) The following day, Rees learned that OCY was cancelling her weekly visits with the children and that it had instructed the children's foster mother not to allow Rees any contact with them. (Id. at ¶ 55.) Rees avers that this action was taken in retaliation for the formal grievance she filed against the Defendants. (Id. at ¶ 56.) This cancellation of visits occurred notwithstanding Defendants' awareness that Rees was eligible to care for the children and that her kinship care application had been approved. (Id. at ¶ 57.) On or around September 22, 2008, OCY transferred responsibility for the matter to a new caseworker, Greg Phillips. (Complaint ¶ 58.)
The following month, Rees filed a second formal grievance against the Defendants, this time with the United States Department of Health and Human Services, which forwarded the grievance on to the Pennsylvania State Office of Children, Youth and Families. (Id. at ¶¶ 59-61.) By e-mail dated October 30, 2008, Ms. Daniels acknowledged that OCY had been directed to facilitate visitation with Rees and expressed her own uncertainty as to the reason for the "hold-up." (Id. at ¶ 62, Ex. E.)
On or around November 17, 2008, Rees was advised that, as the result of an investigation of OCY at the state level, her case would be assigned to a new caseworker, Nicole Duplanti, and a new supervisor, Kim Warchol. (Id. at ¶ 66.) Rees was further advised that she would have to once again recommence the process of submitting to a home study and undergo additional daily "random" drug screening. (Id. at ¶ 67.) Rees ultimately chose not to participate in the second home study based on her frustration with the process and her treatment by the agency.
Following a "lengthy and thorough review" of OCY's actions by the Pennsylvania Department of Public Welfare, Western Region Office of Children, Youth and Families, the latter agency issued a report of its findings as set forth in correspondence dated January 2, 2009 and appended to the Complaint. (Complaint ¶ 68, Ex. G.) That report states, in relevant part, as follows:
(Complaint Ex. G.)
Rees alleges that, despite their awareness that several members of the children's biological family wished to care for and/or adopt the children, the Defendants refused to allow herself or any other member of the children's family to adopt or care for them and instead "adamantly and aggressively opposed placement of the children with [her] in favor of the foster parents." (Complaint ¶¶ 28-29, 91.) This refusal of access, she claims, was without
As a result of the foregoing, Rees has alleged several claims premised on the violation of her rights or duties owed her under state and federal law. Counts I and II assert claims under 42 U.S.C. § 1983 for the alleged violation of her federal civil rights. Counts III and V assert state law claims for negligence and gross negligence, respectively. Count IV asserts a claim for negligence per se, based on alleged violations of the Adoption and Safe Families Act of 1997. Counts VI and VII assert respective state law claims for the alleged negligent and intentional infliction of emotional distress. Count VIII asserts a claim for municipal liability against OCY pursuant to 42 U.S.C. § 1983.
Defendants have filed a motion which requests, among other things, that this Court dismiss all of the federal § 1983 claims on the basis that they fail to state a cognizable cause of action upon which relief can be granted. Plaintiff has filed a brief in opposition, and the issues are now ripe for disposition.
In reviewing a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), courts must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir.2010) (quoting Grammer v. John J. Kane Reg'l Ctrs.-Glen Hazel, 570 F.3d 520, 523 (3d Cir.2009)). Moreover,
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations, quotation marks and alterations omitted).
Counts I, II, and VIII all involve claims brought under 42 U.S.C. § 1983 to redress alleged violations of Rees's federal civil rights. That statute provides, in relevant part, that:
Section 1983 does not create substantive rights; instead, it "provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws." Gordon v. Lowell, 95 F.Supp.2d 264, 268-69 (E.D.Pa.2000) (quoting Kneipp v. Tedder, 95 F.3d 1199,
In Count I of the Complaint, Rees alleges that the Defendants have violated her constitutionally protected rights to privacy, familial association and integrity, and the maintenance, custody, care, and management of her grandchildren. In Count II, she alleges that Defendants violated her constitutional right under the Due Process Clause to equal access to the courts. Rees's theory of liability also incorporates allegations that the Defendants conspired together to deprive her of these rights. Counts I and II appear to be premised, respectively, on the Fourteenth Amendment's substantive and procedural guarantees against "depriv[ations] . . . of life, liberty, or property, without due process of law."
Where, as here, liberty interests are asserted as a basis for § 1983 liability, the court must initially address the "threshold issue" of "whether the plaintiff has alleged the deprivation of an actual constitutional right at all." McCurdy v. Dodd, 352 F.3d 820, 825-26 (3d Cir.2003) (internal quotations and ending citations omitted). See also Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.2000) (en banc) (citation omitted). The Supreme Court has observed that the liberty interests of parents in the care, custody, and control of their children "is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel, 530 U.S. at 65, 120 S.Ct. 2054. Rees contends that she enjoys that same constitutional protection relative to her grandchildren. Count I of her complaint may be understood as asserting three variations of this purported liberty interest: (i) Rees's interest in directing the upbringing (i.e., "maintaining custody, care and management") of her grandchildren; (ii) her interest in keeping her extended family intact (i.e. "family integrity") and (iii) her interest in enjoying the companionship of her grandchildren (i.e., "family association"). (See Complaint ¶ 98.)
We begin with Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), a case in which the Supreme Court struck down a housing ordinance that restricted occupancy of a dwelling unit to single families while defining "family" in such a way that the appellant, Inez Moore, could not lawfully reside with her son and two grandchildren (who were first cousins to each other).
Id. at 504-06, 97 S.Ct. 1932 (footnotes and internal citation omitted).
Rees argues that the Supreme Court's decision in Moore "carved out rights of familial integrity and privacy for grandparents and other non-traditional family types." (Br. in Opp. of Def.s' Mot. to Dismiss Compl. [9] at p. 8.) Yet such a reading overstates Moore's central holding. The narrow question resolved in Moore was the constitutionality of a city housing ordinance that, on the basis of land-use concerns, "intrude[d] on choices concerning family living arrangements." 431 U.S. at 499, 97 S.Ct. 1932. Neither matters of child welfare nor rights involving non-resident grandparents were at issue.
While the Third Circuit Court of Appeals has not defined the substantive due process rights of grandparents and other extended family members relative to custodial matters, several other federal circuit appeals courts have addressed this issue. In the cases which have been decided since Moore, courts addressing the purported due process rights of grandparents and other extended family members seem to place particular emphasis on several factors: to wit, whether the plaintiff is a custodial figure or is otherwise acting in loco parentis to the children; whether and for how long the children were residing with the plaintiff at the time of the alleged deprivation; whether the plaintiff has a biological link to the children; and whether there is a potential conflict between the rights of the plaintiff and the rights or interests of the children's natural parents. Some courts have also considered whether relevant state law would imbue the plaintiff with certain rights or expectations typically afforded to parents.
In Ellis v. Hamilton, 669 F.2d 510 (7th Cir.1982), the Seventh Circuit Court of Appeals considered the due process claims of plaintiffs Amy Ellis and Zella Frazier, who filed suit after various county welfare agents commenced proceedings that led to the removal of minor relatives from their homes and the children's eventual adoption by strangers. Mrs. Frazier was the natural mother, and Mrs. Ellis was the natural aunt, of the children's father, Larry, who had been adopted by Mrs. Ellis as a child. Thus, Mrs. Frazier was the children's biological paternal grandmother, and Mrs. Ellis was the children's adoptive (and legal) grandmother. After Larry and his wife proved to be unfit parents, their four children were taken in and cared for at various points by the plaintiffs. At the time of the alleged wrongdoing, two of Larry's children resided with Mrs. Ellis and two with Mrs. Frazier. The plaintiffs alleged that, after initially consenting to this placement, the defendant welfare officers had ordered the plaintiffs to surrender the children on two days' notice and without any explanation, after which time the children were placed in unsuitable foster care settings. It was further alleged that, following the termination of Larry's and his wife's parental rights, the defendants arranged for the adoption of the children by private parties and obstructed the plaintiffs' participation in those proceedings.
In considering the viability of the plaintiffs' claims on motions for summary judgment, the court began with the premise that "[i]t is plain . . . that the `liberty' protected by the due process clause of the Fourteenth Amendment includes the right to the custody of one's minor children and that it would be a deprivation of that liberty without due process of law for persons acting under color of state law permanently to separate the children from their parents without notice and hearing." Ellis, 669 F.2d at 512. However, the court
The Ellis court then went on to consider the liberty interests of Mrs. Ellis herself, noting that, while her liberty interest was stronger, the court was "not sure that even it should be accepted." Id., 669 F.2d at 512. Bypassing the fact that Mrs. Ellis was not a biological grandparent, the court considered the "more fundamental" question "whether even a natural grandparent's interest in the society of her grandchildren, though an interest rooted in powerful emotions, is a liberty interest under the due process clause." Id. at 513. The court declined to definitively rule out such a possibility, despite what it termed "the absence of compelling authority" to support such a liberty interest. Id. Although the court doubted that this kind of liberty interest could exist where the grandchildren remain in their parents' custody, 669 F.2d at 513, it distinguished Mrs. Ellis's situation, crediting the allegation that Mrs. Ellis had been in loco parentis to her grandchildren at the time the defendants took them away from her. Id. Under such circumstances, the court stated, it was "reluctant to conclude that a great-aunt, an adoptive grandmother, and a de facto mother and father all rolled up into one does not have a liberty interest sufficiently like that of a parent to support an action under section 1983." Id. Key to the court's analysis was the fact that Mrs. Ellis claimed to have had formal custody of her grandchildren when the defendants took them from her home. "As custodians," the court reasoned, the plaintiffs "might well have had a right of action if the children had been tortiously injured or killed while living with them . . ." Id. at 514. Thus, the Ellis court was prepared to assume the existence of a constitutionally protected liberty interest on the part of Mrs. Ellis relative to the continued custody and maintenance of her grandchildren. Nevertheless, it went on to hold that no due process violation had occurred because Indiana law provided adequate remedies for the correction of any errors which had occurred in the course of the legal proceedings. See generally 669 F.2d at 514-16.
The Second Circuit recognized a constitutionally protected liberty interest on the part of a biological relative in Rivera v. Marcus, 696 F.2d 1016 (2d Cir.1982), where the plaintiff was a half-sister to the children in question and had assumed care for them in her own home at the request of their mentally ill mother and pursuant to a foster care agreement. While recognizing that foster parents generally do not enjoy the same liberties as natural parents vis-a-vis the children in their care, the Second Circuit nevertheless concluded that the plaintiff, Dorothy Rivera, was more akin to a natural parent, given the fact that she was principally responsible for the care and upbringing of the children for a number of years, and had been since their infancy, prior to the state's involvement.
Citing to the Supreme Court's decision in Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977)—a case addressing the due process rights of foster parents, the Rivera court noted that foster parents typically are not afforded constitutional protection relative to their relationships with their foster families due to three considerations: first, there is usually no biological link between the foster parent and the children in their care; second, the source of the foster family relationship is a contract whereby the parties' rights are "carefully circumscribed by the
In a case distinguishable from Rivera, the Ninth Circuit Court of Appeals held that a biological grandmother had no constitutional interest in the adoption or society of her grandchildren where the grandmother had only maintained occasional contact with her grandchildren and lacked any emotional, financial or custodial history with them. In Mullins v. State of Oregon, 57 F.3d 789 (9th Cir.1995), the subject children were dependents of the state of Oregon when the plaintiffs (the grandmother and her husband) sought, unsuccessfully, to adopt them. Notwithstanding the plaintiffs' assertion that they possessed a constitutional right to keep their "family" intact, the court of appeals stated that the case was "[not] about breaking up an extant family unit," but rather "creating a new family unit where none existed before." 57 F.3d at 794. On the facts before it, the court found that the plaintiff grandmother was identical, in every material respect, to every other "prospective adoptive parent," save for her biological link. The court distinguished the ruling in Moore v. City of East Cleveland, supra, stating that "[a] negative right to be free of governmental interference in an already existing familial relationship does not translate into an affirmative right to create an entirely new family unit out of whole cloth." Id. It further stated that it was unaware of any authority "supporting the proposition that a grandparent, by virtue of genetic link alone, enjoys a fundamental liberty interest in the adoption of her grandchildren" for purposes of establishing a substantive due process claim. Id.
The Mullins court went on hold that the grandmother lacked any protected liberty interest for purposes of a procedural due process claim. Here, the court noted, the liberty interest at stake need not be "fundamental," since the procedural component of due process protects "all liberty interests that are derived from state law or
The Ninth Circuit subsequently revisited the issue of grandparents' substantive due process rights in Miller v. California, 355 F.3d 1172 (9th Cir.2004). The plaintiffs in Miller were the paternal grandparents of three young girls who had been removed from their parents' home by county welfare workers and subsequently declared dependents of the court. They were initially placed with the plaintiffs and remained there for a period of over two years until the children were removed from the plaintiffs' home in connection with efforts to reunify them with their mother. Thereafter, an investigation arose concerning possible sexual abuse committed by the plaintiff grandfather, and the plaintiffs' visitation rights were terminated. Eventually, after the case was transferred to another county, the mother resumed her neglectful ways and the plaintiffs again assumed the role of de facto parents and guardians of the children, taking custody of them for a period of years. After the plaintiff grandfather's name was placed on the State's Child Abuse Central Index in connection with the previous abuse investigation, the plaintiffs filed suit, asserting that the transferor county and certain of its officials had conspired to deprive them of their due process right to family integrity and association with their grandchildren.
The Miller court held that the plaintiffs possessed neither a substantive due process right to family integrity and association relative to their grandchildren nor a liberty interest in visitation with them. As to the right of family integrity and association, the court observed that "there was no existing family unit of which [the plaintiffs] were a part that Yuba County sought to break asunder; the grandchildren were, in fact, wards of the court at all relevant times." 355 F.3d at 1176. The court also found it significant that the plaintiffs' interests in that case conflicted with those of the girls' mother and maternal grandmother, both of whom were also seeking custody of the girls. Distinguishing the case from Moore, the Miller court concluded that "there was no basis for holding that the Millers had a substantive due process right to visit their grandchildren when those children were dependents of the court, and CPS and the children's biological mother agreed that visitation should cease." Id. Nor did the court consider the plaintiffs' status under California law as "de facto parents" sufficient to create a constitutionally protected liberty interest in contact with the children. Noting that it was "appropriate to ascertain from state law the expectations and entitlements of the parties," 355 F.3d at 1176 (quoting Smith, supra, 431 U.S. at 845-46, 97 S.Ct. 2094), the Miller court observed that California law affords de facto parents—defined as those who, "on a day-to-day basis, assume[ ] the role of parent, seeking to fulfill both the child's physical needs and his psychological need for affection and care," id. (citation omitted)—"only the right to be present, to be represented and to present evidence in a dependency proceeding." Id. (citation omitted). Because the plaintiffs' status as de facto parents "conferred no other, or weightier interest of constitutional dimension," id., other than their right to appear at the dependency hearings—a right which had not been denied them, the Miller court concluded that they had not established the deprivation
The First Circuit Court of Appeals has similarly expressed doubt as to whether non-resident grandparents have a constitutionally protected interest in their grandchildren under substantive due process principles. In Brown v. Ives, 129 F.3d 209 (1st Cir.1997), the plaintiff grandfather filed a § 1983 action after a state case agent identified him as an "untreated sex offender" in connection with child protection proceedings. The plaintiff claimed that this accusation, made without the benefit of a thorough investigation, deprived him of his right to maintain contact with his grandchildren and violated (among other things) his due process rights of family integrity. The First Circuit Court of Appeals affirmed the district court's dismissal, on qualified immunity grounds, of the lawsuit, concluding that, even if the plaintiff possessed a constitutionally protected interest in visitation with his non-resident grandchildren, the plaintiff had proffered "no precedent to show that the circumstances of his case come even close to a due process violation," based on the facts involved. 129 F.3d at 212.
Although the Brown court was willing to indulge in an assumption of the asserted constitutional right for purposes of its discussion, it expressed some skepticism on the point. The court recognized that, in Watterson v. Page, 987 F.2d 1 (1st Cir. 1993), it had spoken of the possibility that grandparents may, in certain cases, have some constitutionally protected rights in associating with their grandchildren. Significantly, however, the Brown court pointed out that its remarks in Watterson had been limited to grandparents who were residing with the grandchildren, see 129 F.3d at 211 (citing Watterson, 987 F.2d at 8 n. 6); "[p]rotection of nonresident grandparents," the court noted, "has an even slimmer pedigree in the case law." Id. (citing cases).
Two Circuit Courts of Appeals, however, have ruled that even non-resident grandparents possess a constitutionally protected liberty interests in participating in the upbringing of their grandchildren. In Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir.2002), the Sixth Circuit considered the constitutionality of an ordinance which banned individuals arrested for or convicted of drug crimes from entering certain areas designated as "drug exclusion zones." Because of her prior arrest on marijuana trafficking charges, the plaintiff, Patricia Johnson, was prohibited from entering a particular drug exclusion zone where one of her daughters and five of her minor grandchildren resided and attended school. Prior to her arrest, the plaintiff had helped care for her five grandchildren and had regularly taken two of them to school, although she had not lived with the family. Following her exclusion from the zone, she was discovered there by city officials and charged with criminal trespass. That charge was eventually dismissed and Mrs. Johnson later filed a lawsuit alleging that the ordinance infringed upon, among other things, her constitutional right to freedom of association.
The question confronted by the Sixth Circuit Court of Appeals in Johnson was "whether a grandmother has a fundamental freedom of association right to participate in the upbringing of her grandchildren." 310 F.3d at 500. The court opined that prior circuit precedent, as set forth in Thompson v. Ashe, 250 F.3d 399 (6th Cir. 2001), counseled against recognizing a fundamental right on the part of grandparents to merely visit their grandchildren. In Thompson, the Sixth Circuit had rejected the plaintiff's constitutional challenge to a "no trespass" list that had barred the
The Tenth Circuit Court of Appeals has gone further by recognizing a "clearly established" constitutional right to familial association as between grandparents and their grandchildren. In Suasnavas v. Stover, 196 Fed.Appx. 647, 2006 WL 2458678 (10th Cir.2006), the plaintiffs were Angela Suasnavas, the natural daughter of plaintiff Margaret Luethje and the step-daughter of plaintiff Arnold Luethje, and Evie Burris, the natural daughter of the Luethje's and Angela Suasnavas' half-sister. Angela Suasnavas was the mother of a child named Shari Kay Phillips, whom Suasnavas had sometimes left in the Luethje's care. Evie Burris likewise had children whom she had occasionally entrusted to her parents. The plaintiff's § 1983 lawsuit arose out of a series of state court child welfare proceedings involving various officials from the Oklahoma Department of Human Services during which, according to the complaint, the defendants had (i) falsely accused Arnold Luethje of having sexually molested Suasnavas when she was a child, (ii) removed Phillips from Suasnavas' custody based on false accusations that Suasnavas had endangered her daughter by leaving her in the Luethjes' home, and (iii) threatened Burris and Suasnavas that their children would be taken from them and/or not returned if either woman continued to associate with the Luethjes or entrust them with the children. The plaintiffs alleged that these actions had deprived them of their right to associate with other members of their family.
On the defendants' appeal from the district court's denial of qualified immunity, the Tenth Circuit Court of Appeals affirmed and held, in relevant part, that the Luethjes had a constitutionally protected liberty interest in associating with their grandchildren that was clearly established at the time of the defendants' challenged conduct. In arriving at this ruling, the Suasnavas court relied on the Tenth Circuit's prior decision in Trujillo v. Board of County Commissioners, 768 F.2d 1186 (10th Cir.1985), a case in which the plaintiff mother and her adult daughter claimed that they had been deprived of their constitutional right of familial association with their adult son/brother by virtue of his wrongful death while incarcerated at the Santa Fe County Jail. The Trujillo court had recognized a liberty interest in familial relationships that would encompass adult siblings, stating that "[m]any courts have recognized liberty interests in familial relationships
768 F.2d at 1189 n. 5.
Insofar as the Luethje's relationship with their grandchildren was concerned, the Tenth Circuit agreed with the district court's finding that the complaint alleged the violation of a clearly established substantive due process right. "Although Trujillo did not explicitly recognize a right of familial association between grandparents and grandchildren," the court wrote,
196 Fed. Appx. at 657. Accordingly, the Suasnavas court concluded, "Trujillo gave defendants `fair warning that their [alleged] conduct was unconstitutional.'" Id. (alteration in the original).
As the foregoing survey of case law demonstrates, the various circuit courts of appeals have not been uniform in their method of analyzing substantive due process claims involving asserted liberty interests on the part of grandparents or other extended family members relative to their minor kin. Nevertheless, certain common themes seem to figure prominently in the cases, most notably the courts' emphasis on whether the plaintiff was a custodial figure or otherwise acting in loco parentis to the children at the time of the state's involvement in their lives; whether and for how long the children had been residing with the plaintiff prior to state intervention; whether the plaintiff has a biological link to the children; whether there is a potential conflict between the rights of the plaintiff and the rights or interests of the children's natural parents;
Based on the foregoing authorities, I conclude that Rees lacks any constitutionally protected liberty interest in associating with her granddaughters. Insofar as her relationship to her younger granddaughter Ruby is concerned, Rees is in a position somewhat similar to the plaintiffs in Mullins, supra, where, at the time of the state's involvement in their lives, the grandparents' most significant link to their grandchildren was biological. The complaint alleges that, in the time leading up to OCY's investigation into neglectful conditions in Carrie Peterson's home, Ruby had been withheld from Rees's custody on the basis of her disputed paternity. There is no allegation of a significant emotional, financial, or custodial history as between Rees and Ruby prior to the time the children were removed from their mother's home. As with the Mullins plaintiffs, the interest asserted here is in "a potential, still undeveloped familial relationship with [a] prospective adopted child[ ]." 57 F.3d at 794. Yet "[a] negative right to be free of governmental interference in an already existing familial relationship does not translate into an affirmative right to create an entirely new family unit out of whole cloth." Id. (citation omitted).
Rees's relationship to her older granddaughter Pearl presents a closer call. On one hand, certain factors are present here that weigh in favor of recognizing a fundamental liberty interest on the part of Rees relative to the custody, care and management of Pearl. Beyond Rees's biological relationship to her granddaughter, she has alleged that the two spent significant time together to the extent that, at one point, Rees had cared for Pearl over a period of seven months with the agreement of the child's parents prior to the County's involvement in their lives. In addition, given the mother's unavailability to the children and the subsequent termination of her parental rights coupled with the father's premature death, this case does not present a situation where the rights of the natural parents were in serious conflict with Rees's interest in taking custody of Pearl.
Nevertheless, certain countervailing factors are also present in this case which, in my opinion, have dispositive importance. Most significantly, this is not a case in which Rees had physical or legal custody of Pearl at the time that the Defendants commenced their child welfare proceedings. (See Complaint ¶ 18 ("Pearl Dombrowski had spent significant time with and was cared for by Plaintiff over a period of seven months prior [to] any involvement by OCY.").) Rather, as Plaintiff's counsel has laudably and candidly clarified, Pearl had been returned to her mother's custody for a period of 1 or 2 months prior to her removal from Carrie Peterson's home, and Ms. Peterson was therefore the children's legal guardian and custodian at the time of the agency's intervention. After being removed from their mother's home, both children, according to the complaint, were placed in an OCY foster home where they remained following the juvenile court's determination that a return to their mother's residence would be contrary to the children's welfare. Thus, there is no allegation that Rees was acting in loco parentis to Pearl
I find that these circumstances collectively weigh against recognition of a fundamental liberty interest on the part of Rees. Like the situation in Miller, and quite unlike the situations in Moore, Ellis, and Rivera, "there was no existing family unit of which [the plaintiffs] were a part that [the Defendants] sought to break asunder; the grandchildren were, in fact, wards of the [county] at all relevant times." Miller, 355 F.3d at 1176. While Moore clearly recognizes a protected liberty interest for extended family members to reside together where matters of custody and child welfare are not at issue, that principle does not control the outcome of this case which presents materially distinguishable facts.
Although there is little law on the point within this circuit, support for my conclusion can be found in the District Court's decision in Gordon v. Lowell, 95 F.Supp.2d 264 (E.D.Pa.2000). In that case, the plaintiffs were the biological grandmother and non-biological step-grandfather of a 7-year old girl who was declared a dependent of the court following her mother's arrest. Having been declared a dependent, the child came under the legal custody of Berks County Children and Youth Services and was initially placed by that agency with the plaintiffs, who had previously cared for her for a period of six months when she was 2 years old. After the plaintiffs voluntarily relinquished custody of the child back to CYS, she was placed in foster care but the plaintiffs maintained visitation. Eventually, the child was adopted by her foster parents with the recommendation of a court-appointed therapist. Although the plaintiffs never tried to adopt the girl, they later filed suit against Berks County, CYS, and certain of its employees, claiming that the agency had actively discouraged the plaintiffs' relationship with the child and, in the process,
On review of the defendants' Rule 56 motion, the U.S. District Court for the Eastern District of Pennsylvania granted summary judgment in favor of the defendants, ruling, in relevant part, that the plaintiffs lacked any constitutionally protected liberty interest in the care, custody, and management of their grandchildren. 95 F.Supp.2d at 269-70. The court acknowledged the "long-recognized fundamental liberty interest" which parents have in the care, custody and management of their children as protected by substantive due process principles, id. at 269, but it ruled that this protection is limited to parents. See id. at 269 ("Grandparents have no similar liberty interest under the Fourteenth Amendment, and are therefore accorded no constitutional protection.") (citing Mullins v. State of Oregon, supra, at 797).
To the extent my conclusion as to Rees's lack of a constitutionally protected liberty interest is contradicted by the decisions of the Sixth and Tenth Circuits in Johnson and Suasnavas, I decline to follow those rulings.
In Johnson, it will be recalled, the court distinguished between the idea of a fundamental associational right to merely visit one's family verses an associational right to participate in child-rearing, giving recognition to the latter but not the former. See 310 F.3d at 501. The Sixth Circuit found support for such a right in Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (striking down Oregon's Compulsory Public Education Act, which mandated attendance at public schools for children between the ages of 8 and 16 and finding that the statute "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control"), and Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (striking down as unconstitutional a state law prohibiting the teaching of any subject in any language other than the English language in any school, or the teaching of languages other than the English language below the eighth grade).
More persuasive, in my view, is the dissenting opinion authored by Judge Gilman, who would have held that nonresident, noncustodial grandparents like Mrs. Johnson lack a fundamental liberty interest in visiting or assisting in the upbringing of their grandchildren. In Judge Gilman's view, the majority's reliance on Moore v. East Cleveland, as well as Pierce and Meyer, to support the existence of such a right was misplaced. As Judge Gilman explained,
310 F.3d at 514 (citing Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)). As for the Supreme Court's rulings in Pierce and Meyer, Judge Gilman viewed these as "cases recognizing that parents or guardians have a fundamental right `to direct the education and upbringing of one's children.'" Id. (citation omitted) (emphasis in the original). As Judge Gilman explained, "[n]one of the pertinent Supreme Court
I am similarly unpersuaded by the reasoning of the Tenth Circuit Court of Appeals as set forth in Suasnavas, supra. In that case, the court's analysis relative to the associational rights of the grandparents was brief, but the court did indicate its reliance on Trujillo v. Board of County Commissioners, 768 F.2d 1186 (10th Cir. 1985), and two cases cited therein—Moore, supra, and Drollinger v. Milligan, 552 F.2d 1220, 1226-27(7th Cir. 1977)—which the Suasnavas court described as "specific legal authority recognizing the importance of the familial relationship between grandparents and grandchildren." 196 Fed. Appx. at 657. Trujillo, however, did not involve the rights of grandparents at all, and, for reasons previously discussed, I do not agree with the suggestion that Moore supports recognition of the type of liberty interests asserted either in Suasnavas or in this case. As for Drollinger, that was a case wherein the Seventh Circuit Court of Appeals held that a grandfather had an actionable § 1983 claim relative to state conduct which allegedly deprived him of his relationship with his granddaughter. See 552 F.2d at 1226-27. However, Drollinger has been criticized by the Ninth Circuit Court of Appeals in Miller, see 355 F.3d at 1175-76 (commenting that Drollinger is "not helpful" in that the court "never explained its decision"), and the Seventh Circuit has itself questioned Drollinger's precedential value. See Ellis, 669 F.2d at 513-14 (after acknowledging Drollinger, the court references the "absence of compelling authority for holding that grandparents . . . ever have a liberty interest under the due process clause," but then goes on to assume the existence of such a right on the part of a custodial grandmother).
In sum, the conclusion that Rees lacked any substantive due process right relative to her associational interest with her granddaughters is, in my view, consistent with the prevailing position among the federal courts of appeals. I also consider this result to be consistent with the Supreme Court's admonition that courts should proceed cautiously when entertaining claims that would broaden the scope of substantive due process protection. As the Court has previously stated,
Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). See also Nunez 578 F.3d 228, 232 (3d Cir.2009) (noting that courts have been "reluctant to expand" the constitutional right of privacy). Accord Johnson, 310 F.3d at 508 (Gilman, J., dissenting) ("I believe that this court, like the Supreme Court, must proceed with caution before expanding previously recognized liberty interests to encompass situations that have not yet been encountered."). For all of these reasons, I conclude that Count I of the Complaint does not state a viable cause of action under § 1983 because it fails to allege the deprivation of a substantive due process right.
In Count II of her complaint, Rees alleges that the Defendants collectively violated her rights under the Due Process Clause by denying her equal access to the courts. Although the complaint does not elaborate on this theory, it is clear from Rees's brief in opposition to the pending motion that her claim is intended to be construed as a procedural due process claim.
When analyzing a procedural due process claim, a court's first step is to determine whether the nature of the interest is encompassed within the Fourteenth Amendment's protection. Pressley v. Blaine, 352 Fed. Appx. 701, 705 (3d Cir.2009) (citing Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972)). Once it is determined that the interest is protected, the question becomes what process is due to protect it. Id. (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). See also Solomon v. Philadelphia Housing Authority, 143 Fed.Appx. 447, 452 (3d Cir.2005) (explaining the "bifurcated" procedural due process inquiry: "We first must determine whether the asserted interest is encompassed within the Fourteenth Amendment's protection of life, liberty, or property; if so, we then ask whether the procedures available provided the plaintiff with adequate due process.") (citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.2000)).
Procedural due process rights are triggered by the deprivation of a legally cognizable liberty or property interest. See Pressley v. Blaine, 352 Fed.Appx. at 705. Unlike substantive due process rights, which are founded upon "`deeply rooted notions of fundamental personal interests derived from the Constitution,'" Nunez v. Pachman, 578 F.3d 228, 233 (3d Cir.2009) (quoting Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir.1995)), the liberty rights protected by procedural due process are somewhat broader and may be created either by state law or by the federal constitution itself. E.B. v. Verniero, 119 F.3d 1077, 1105 (3d Cir.1997) (citing Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)).
Nevertheless, "[t]he procedural component of the Due Process Clause does not protect everything that might be described as a "benefit." Town of Castle Rock, Colorado v. Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005). The Supreme Court has said that "the most common manner in which a State creates a liberty interest is by establishing `substantive predicates' to govern official decision-making, . . . and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met." Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 462, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (internal citation omitted). Thus, a benefit is not a protected entitlement if government officials may grant or deny it in their
Here, the asserted liberty interest is the right to family integrity. Rees complains in her brief in opposition to the pending motion that she was not afforded any proper proceeding regarding her suitability as a custodian or as a candidate for the children's adoption. (See Pl.'s Br. in Opp. [9] at p. 16 ("[N]o dependency hearing or any other similar process occurred to determine whether or not Ms. Rees was suitable as a candidate for adoption of the children. . . . . These denials of procedures, particularly those related to gaining custody of the children in the face of established rights, amount to violations of due process.").)
Rees's allegations, however, do not establish the deprivation of any constitutionally protected liberty interest. For the reasons previously explained at length, I do not find support in the case law for the proposition that Ms. Rees had a liberty interest in the custody and care of her grandchildren arising from the Fourteenth Amendment itself.
Moreover, while Pennsylvania law does afford grandparents certain rights vis-a-vis their grandchildren, these rights do not support the type of constitutionally protected liberty interest being asserted here. For example, under § 5311 of what is sometimes referred to as Pennsylvania's Custody and Grandparents Visitation Act, 23 Pa.C.S.A. §§ 5301 et seq., when a child's parents are deceased, the parent of the deceased parent may petition the court for partial custody or visitation relative to the child. See 23 Pa.C.S.A. § 5311.
These "rights," however, do not amount to a constitutionally protected interest in family integrity, nor do they guarantee any particular outcome relative to the grandparent's custody, visitation or adoption request. In any case, the state trial court has the authority to grant or deny the grandparent's request as the best interests of the child dictate. See § 5311 (allowing reasonable partial custody or visitation rights to grandparents conditioned upon a court finding that such partial custody and/or visitation "would be in the best interest of the child and would not interfere with the parent-child relationship"); § 5313(b) (permitting the court to award physical and legal custody to the grandparent "if it is in the best interest of the child" to be with the grandparent rather than with either parent); In re Adoption of Hess, 608 A.2d at 14 (noting "it is clear from [Pennsylvania's Adoption] Act that the court's concern [in adoption proceedings] is not the will of the agency but the best interests of the child"). Thus, the rights which Pennsylvania law affords grandparents to petition for custody or visitation do not create the type of entitlement which gives rise to a protected liberty interest for federal due process purposes. See Faust v. Messinger, 345 Pa.Super. 155, 497 A.2d 1351, 1353 (1985) (plaintiff's entitlement merely to seek visitation with her grandchild pursuant to the Custody and Grandparents Visitation Act "does not amount to one which must be protected by the due process clause.").
Even if the foregoing state law provisions did create rights entitled to protection under the federal due process clause, however, Rees has not alleged an actionable deprivation of those rights. Despite the fact that Rees had standing to petition for custody and/or visitation rights with her granddaughters, she never filed a petition in that regard. According to the complaint, she eventually abandoned her efforts to obtain custody through a kinship care appointment, and she apparently never attempted to adopt the children.
At oral argument Rees's counsel refined her theory somewhat by claiming that the Defendants, in effect, prevented her from filing custody and/or visitation petitions, thus interfering with her right to access the courts. It is alleged that the Defendants accomplished this by baiting Rees into pursuing the kinship care process, all the while knowing that they would never support her appointment as a placement source.
Even accepting this averment as true, however, I still find that Rees's legal theory fails to state a viable constitutional tort. "[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances." Woodford v. Ngo, 548 U.S. 81, 122, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). To state a claim for denial of access to the courts, a plaintiff must demonstrate "actual injury," meaning the defendant "took or was responsible for actions that `hindered [a plaintiff's] efforts to pursue a legal claim.'" Beckerman v. Susquehanna Twp. Police & Admin., 254 Fed.Appx. 149, 153 (3d Cir.2007) (citation omitted) (alteration in the original). See also Roberts v. Mentzer, 382 Fed.Appx. 158, 162-64 (3d Cir. May 27, 2010). Here, despite the suggestion of Rees's counsel that she was baited into foregoing her rights under the Custody and Grandparent Visitation Act, it is acknowledged that Rees had access to other legal counsel
Although Rees has cited no precedent to support her denial-of-access-to-the-courts claim, this Court has located one potentially instructive opinion. In Whisman v. Rinehart, 119 F.3d 1303 (8th Cir. 1997), the Eighth Circuit Court of Appeals ruled that the plaintiff grandparents stated a viable § 1983 claim against certain juvenile officers and county social workers based on allegations that the plaintiffs had been denied, without due process of law, their right to intervene in state juvenile court proceedings relative to their grandson. In that case, the defendants had taken custody of a mother's young son for a period of seventeen days, during which time neither the child's mother nor his grandparents were afforded a hearing concerning the propriety of the detention. Although the defendants had allegedly been notified on the day of the child's removal that the mother consented to signing custody over to her parents, the defendants allegedly held the child for the first twelve days without the benefit of any filed court order authorizing the detention. Although the Whisman court appears not to have sanctioned the plaintiff's claim that they had a fundamental liberty interest in the custody of their grandchild, see generally 119 F.3d at 1311-12, the court did recognize a viable cause of action based on the alleged denial of the plaintiffs' clearly established right under Missouri law to petition the juvenile court for custody of their grandson. Critical to the court's ruling was the fact that the defendants had allegedly intentionally failed to initiate juvenile court proceedings for a period of twelve days, during which time the grandparents were powerless to exercise their right of intervention. As the court explained, "[t]he Missouri statute did not authorize grandparents to initiate any custody proceeding"; instead, the statute merely "authorized [the plaintiffs'] intervention and defendants blocked such right by refusing to act to initiate the proceeding." Id. at 1313.
To the extent the Whisman case is instructive here, I find it to be materially distinguishable from the case at bar. In this case, there is no allegation of circumstances that functionally prohibited Rees from exercising her right to independently petition the court for custody and/or visitation rights. At all relevant times, those legal avenues remained open to her. Moreover, despite counsel's representations that Rees was baited into foregoing those options, it is clear from her own allegations that she retained legal counsel during this period relative to her interests in the children. Under these circumstances, I find Whisman to be distinguishable and I find Rees's allegations insufficient to establish a viable denial-of-court-access claim.
Rees's due process claim also appears to be premised on nebulous rights supposedly guaranteed by the federal Adoption and Safe Families Act and the County's Kinship Care Policy. On further questioning by the Court, however, Plaintiff's
Finally, Rees states in her brief in opposition that she was also denied any proceeding "to handle the complaints alleged in her two grievances." (Br. in Opp. [9] at p. 16.) I do not construe this passing allegation as a separate basis for the assertion of a due process violation. To the extent it is, however, it fails to state a legally cognizable claim. Fundamentally, such a claim fails to identify any underlying liberty or property right which is supposedly clothed with constitutional protection. No entitlement is identified that arises to the level of a constitutionally protected interest. See Whisman, 119 F.3d at 1312 ("Constitutional significance may attach only to certain interests created by state law and it is clear that not every transgression of state law may do double duty as a constitutional violation.").
Even if Rees's claims did not fail on their own merits, they would have to be dismissed as against the individual Defendants under the doctrine of qualified immunity. "The doctrine of qualified immunity protects government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). This immunity applies regardless of whether the official's conduct results from a mistake of law, mistake of fact, or mistake based on mixed questions of law and fact. Montanez v. Thompson, 603 F.3d 243, 250 (3d Cir.2010).
"The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Montanez, 603 F.3d at 251 (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). "Because this inquiry focuses on the official's actual situation, the analysis `must be undertaken in light of the specific context of the case, not as a broad general proposition. . . .'" Id. (quoting Saucier, 533 U.S. at 201, 121 S.Ct. 2151) (ellipsis in the original). Our analysis therefore "turns on the `objective legal reasonableness of the [official's] action, assessed in light of the legal rules that were clearly established at the time it was taken.'" Id. (quoting Pearson, 129 S.Ct. at 822). Immunity should be granted so long as "the
Insofar as Count I of the complaint is concerned, there is no controlling law within the Third Circuit concerning grandparents' substantive due process rights, if any, relative to the custody and care of their non-resident grandchildren. The one pertinent district court which I have located, Gordon v. Lowell, supra, holds that grandparents do not possess such rights. See 95 F.Supp.2d at 269 (holding that grandparents had no constitutionally protected liberty interest in the care, custody or control of their granddaughter for purposes of their due process claim). The primary Supreme Court case relied on by Rees, Moore v. City of East Cleveland, supra, is materially distinguishable in that it addresses the living arrangements of a pre-existing family unit where matters of child welfare and custody were not at issue and, therefore, it does not control the outcome of this case.
As for the other circuit court decisions which touch on this issue, the rulings have been mixed. The Ninth Circuit Court of Appeals has held that the mere biological link which grandparents share with their grandchildren is insufficient to invoke due process protection. See Mullins, 57 F.3d at 794. That court has further held that, even where grandparents have been accorded "de facto parent" status under state law and have acted as past custodians of the children, due process principles might not afford them a right to continued contact with the grandchildren. See Miller, 355 F.3d at 1176-77. Three courts of appeals have held or suggested that resident grandparents or other extended family members may have protected liberty interests in the custody and/or society of the minor relatives in their care, particularly where the plaintiff caregiver is acting in loco parentis. See Ellis, 669 F.2d at 512-14; Rivera, 696 F.2d at 1024-25; Brown, 129 F.3d at 211. However, these authorities are not helpful to Rees, since they involved situations that are materially distinguishable from this case.
As I have previously discussed, the Sixth and Eighth Circuits have each rendered opinions which can be read as supporting the rights which Rees asserts in the present action. See Johnson, supra; Suasnavas, supra. However, it would not have been clear to a reasonable officer confronting the circumstances of this case that the Third Circuit Court of Appeals would follow the rulings of Johnson and Suasnavas or that the holdings of those opinions would govern the outcome of this situation. Accordingly, the individual Defendants are entitled to qualified immunity relative to Count I of the complaint.
I reach the same conclusion with respect to Rees's due process claim based on lack of access to the courts under Count II. Rees has provided no relevant precedent showing that her theory of liability was clearly established law within the circuit and I have found none. The one case which is arguably instructive, Whisman, supra, is not binding authority within this circuit and is materially distinguishable in any event for the reasons previously discussed. Although the constitutional right of access to courts may itself have been well established within the Third Circuit, our inquiry focuses on "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Montanez, 603
In Count VIII of her complaint, Rees has asserted a municipal liability claim under § 1983 against OCY. Fundamentally, Rees's claims against OCY fail as a matter of law because, given the facts contained in the complaint, no predicate constitutional violation has been alleged. See Bittner v. Snyder County, PA, 345 Fed.Appx. 790, 792-93 (3d Cir.2009) ("It is well settled that before a municipality may be found liable under § 1983, there must be a constitutional violation.") (citing Monell, supra, 436 U.S. at 694, 98 S.Ct. 2018).
Moreover, even assuming the existence of an underlying constitutional tort, Rees has failed to sufficiently allege liability on the part of OCY. "When a suit against a municipality is based on § 1983, the municipality can only be liable when the alleged constitutional transgression implements or executes a policy, regulation or decision officially adopted by the governing body or informally adopted by custom." Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir.1996) (citing Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).
For purposes of § 1983 liability, a municipality may be liable for either its policy or custom:
McTernan v. City of York, 564 F.3d 636, 658 (3d Cir.2009) (citations, internal quotation marks, and brackets omitted). "Custom requires proof of knowledge and acquiescence by the decision maker." Id.
Here, there has been no allegation that the individual Defendants' alleged
Rees's municipal liability claim is better understood as alleging the existence of an unofficial custom or practice which was the "moving force" behind her injury. See Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir.2000) ("Once a § 1983 plaintiff identifies a municipal policy or custom, he must demonstrate that, through its deliberate conduct, the municipality was the moving force behind the injury alleged.") (internal quotation marks and citation omitted). To that end, she alleges that "[a]t all times relevant hereto, Defendant OCY developed and maintained policies or customs that exhibited deliberate indifference to the Constitutional rights of individuals that directly resulted in the deprivation of Plaintiff's constitutional rights." (Complaint ¶ 133.) "Alternatively," she claims, "Defendant OCY failed to enforce said policies that were intended to protect Plaintiff and those similarly situated." (Id. at ¶ 134.) However, such boilerplate allegations, which merely parrot the standard for § 1983 liability, are insufficient. See McTernan, 564 F.3d at 658 ("To satisfy the pleading standard, McTernan must identify a custom or policy, and specify what exactly that custom or policy was.") (citation omitted) (holding that complaint, which gave no notice as to the defendants' improper conduct, was not sufficient where it merely alleged that the plaintiff's rights were violated "due to the City's policy of ignoring First Amendment rights"); Muller v. Bristol Township, Civil Action No. 09-1086, 2009 WL 3028949 at *4 (E.D.Pa. Sept. 17, 2009) (allegation of municipal liability which was little more than a recitation of § 1983 itself was insufficient, as a "[f]ormulaic recitation of the elements of a cause of action will not do") (alteration in the original) (quoting McTernan, 564 F.3d at 659).
Rees's more substantive allegations of municipal liability are as follows:
Also lacking is any allegation that an official with final policy-making authority established the alleged custom or policy. Notably, the named individual Defendants—a caseworker, her supervisor, and an attorney representing OCY at court proceedings—were not (and are not alleged to be) decisionmakers possessing final policy-making authority for the agency. The only ostensible policy maker for OCY identified in the complaint—Marianne Daniels, the director of OCY—has not been named as a Defendant in this case and is affirmatively identified only in two paragraphs of the complaint. Paragraph 54 alleges that, "[o]n or about September 12, 2008, Plaintiff filed a formal grievance against Defendant OCY with [Daniels], and Paragraph 62 alleges that, on or about October 30, 2008, Daniels sent Rees an email "expressing concern about the `hold up' within OCY concerning Plaintiff's visitation."" (Complaint ¶¶ 54, 62.) The actual email, which is appended to the complaint, as Exhibit E, indicates that Daniels copied a member of her own staff, as well as Ms. Gariepy from the state agency, in the same email and essentially directed her own staff member to act upon the state agency's directive to facilitate Rees's visitation with her grandchildren. (See Complaint Ex. E[1-2] at p. 29.)
These allegations are insufficient to establish any misconduct on the part of Daniels that could be attributed to OCY as a "policy" or "custom" of deliberate indifference toward the constitutional rights of those serviced by OCY staff. Simply stated, the complaint fails to link the alleged offending "policies" or "customs" to anyone within OCY with policy-making authority. See McTernan, 564 F.3d at 659 (where plaintiff did not adequately plead a custom or policy, or a link between the challenged governmental action and a municipal decisionmaker, court found that the allegedly unconstitutional conduct "cannot `fairly be said to represent official policy,' warranting the imposition of municipal liability") (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)); Wicks v. Lycoming County, 2010 WL 456776 at *5 (M.D.Pa. Feb. 02, 2010) (granting county's motion to dismiss § 1983 claim where complaint failed to allege conduct by a municipal decisionmaker); Rodriguez v. City of Camden, Civil Action No. 09-cv-1909 (NLH)(KMW), 2010 WL 186248 at *4-5 (D.N.J. Jan. 13, 2010) (plaintiff's allegation against policy-making official, for purposes of establishing municipal liability, were deficient where plaintiff failed to allege facts suggesting that policy-maker effectuated or otherwise approved of an impermissible policy or that he knew of and acquiesced to an improper custom); Muller v. Bristol Township, 2009 WL 3028949 at *5 and n. 8 (in suit against township and its police department, allegations were deficient to establish municipal liability where plaintiff failed to allege policy or custom causing his injuries or that the actions were attributable to municipal decision-makers). Accordingly, Rees cannot establish a viable claim against OCY under a theory of § 1983 municipal liability.
Rees's complaint also includes numerous state law theories of liability, as set forth in Counts III (negligence), Count IV (negligence per se), Count V (gross negligence), Count VI (negligent infliction of emotional distress), and Count VII (intentional infliction of emotional distress). As the parties here are not diverse for purposes of 28 U.S.C. § 1332, the Court's sole basis of jurisdiction over these claim is 28 U.S.C. § 1367, which provides that "the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). A district court may decline to exercise supplemental jurisdiction over a claim if "the district court has dismissed all claims over which it has original jurisdiction." Id. at § 1367(c)(3). See Elkadrawy v. Vanguard Group, Inc., 584 F.3d 169, 174 (3d Cir.2009) (once the District Court dismissed the plaintiff's federal claims, leaving only the state claim, the prerequisites for § 1367(c)(3) were met). Accordingly, this Court declines to exercise supplemental jurisdiction over the remaining state law claims and those causes of action will be dismissed without prejudice.
For the reasons set forth above, I conclude that Rees has failed to state a viable § 1983 claim under Counts I, II, and VIII. I find that the complaint fails to allege the deprivation of a constitutional right for purposes of Counts I and II. For the same reason, the complaint fail to state a predicate for municipal liability as against OCY under Count VIII. Alternatively, I conclude that Rees's § 1983 claims against the individual Defendants must fail because the individual Defendants are entitled to qualified immunity as set forth above. I further conclude that Rees's claims against the County are independently insufficient under § 1983 in that they fail to allege that an official policy, practice or custom was the "moving force" behind her injury. Thus, there is no federal cause of action remaining in this case.
As to the remaining state law claims, I decline to exercise supplemental jurisdiction for the reasons set forth above. Accordingly, those claims will be remanded to state court for further adjudication.
An appropriate order follows.
AND NOW, to wit, this 30th day of September, 2010, for the reasons set forth
IT IS ORDERED that the Defendants' Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) [4] be, and hereby is, GRANTED in part, as follows:
1. Said motion is granted with respect to Counts I, II, and VIII of the Complaint; and
2. In all other respects, the motion is DENIED as moot.
IT IS FURTHER ORDERED that the above-captioned case shall be REMANDED, forthwith, to the Erie County Court of Common Pleas for further proceedings.
Peters v. Costello, 586 Pa. 102, 891 A.2d 705, 710 (2005) (citation omitted).
23 Pa.C.S.A. § 5311.
23 Pa.C.S.A. § 5313(b).
