ROBERT C. MITCHELL, Magistrate Judge.
Plaintiff, Taylor F., individually and as parent and natural guardian of her son T.F., a minor, brings this action pursuant to 42 U.S.C. § 1983 and state law against Defendants, Lawrence County, Lawrence County Children and Youth Services ("LCCYS") and Lawrence County District Attorney Joshua Lamancusa. The Complaint arises out of a series of incidents during which T.F. was taken from Taylor F.'s custody and put in numerous foster homes (where he was subjected to abuse) until Taylor F. testified for the Commonwealth at a criminal trial, and also out of allegations that Lamancusa tried to force Taylor F. to act as a confidential informant for him and to provide him with sexual favors.
Defendants have filed a motion to dismiss (ECF No. 8), asserting a variety of grounds. Plaintiff has filed a brief in opposition (ECF No. 16) and the motion is now ripe for disposition. For the reasons that follow, the motion will be granted in part and denied in part.
In November 2013, Plaintiff (who was then seventeen years old) was with her infant son T.F. at an apartment in Ellwood City with Leon Platt, Laxavier Crumb, Heather Hall, Shane Mihalko and Richard Hogue when she witnessed Platt shoot Hogue. The other individuals fled, but Taylor F. stayed with Hogue, trying to keep him awake and hugging and holding him because he begged her not to leave. (Compl. ¶¶ 8-16.)
When she went to the police station, she was assaulted by police officers and taken to a juvenile facility in Oil City, Pennsylvania. (Compl. ¶¶ 23-30.)
After being released from the juvenile facility, Plaintiff attended a court proceeding and District Attorney Lamancusa brought her into his office. He had his secretaries search Taylor F. and take her cellphone, then brought her into his office, where he offered her a cigarette and they smoked. Lamancusa asked her to work for him as a confidential informant and promised her that she would get her son back soon if she complied. He also told her that she was "beautiful, smart and conniving" and that if she did him a favor, he would do a favor for her. She believed that he was asking for sexual favors and told him she was uninterested and he said "We will see about that." He then put his hand on her hair and ran it all the way down her back to her buttocks before allowing her to leave. (Compl. ¶¶ 39-46.)
Initially, Plaintiff was permitted visits twice a week for one hour with T.F. She noticed that he had cigarette burn marks on his back and many bruises and scratches. She showed them to an LCCYS caseworker and took photographs. The caseworker told Plaintiff that she needed more anger management because she did not speak nicely about the abuse her son was being put through. Shortly thereafter, the foster family did not want T.F. and he was given to another foster family. When T.F. was sent to visit with Plaintiff, she found that he had moldy bottles and she replaced them with new ones. The caseworker acknowledged that the bottles were "gross," but took no action to remedy the situation. In March 2014, Plaintiff removed T.F.'s diaper and found a rash so severe that it was bleeding, but LCCYS did not take T.F. to the hospital until the injury was almost healed. T.F. was given to a third foster family in April 2014, but when Plaintiff would visit, she found moldy sippy cups and T.F. smelled badly. Two months later, T.F. was given to a fourth foster family. Plaintiff found that T.F. was hungry during visits and mentioned to a nurse that T.F. was behind developmentally, so the nurse began to monitor T.F.'s weight. Only after the nurse demanded that T.F. be taken to Children's Hospital did LCCYS act and T.F. was admitted for malnutrition and constipation. After this incident, T.F. was placed with Plaintiff's elderly grandfather, who had cancer. LCCYS removed T.F. from his care four months later and T.F. was placed in a sixth foster home. (Compl. ¶¶ 47-68.)
At the end of April 2014, Lamancusa again brought Plaintiff into his office and made sexual advances to her. She walked out of his office and collected her belongings. (Compl. ¶¶ 69-73.) She indicates that she was complying with the instructions of the caseworker to get T.F. back, including moving out from her parents' house and renting a house at 304 Sims Street Rear, Ellwood City, because LCCYS instructed her that once she moved out of her parents' house, T.F. would be returned to her. Meanwhile, the sixth foster family informed Plaintiff that T.F. was behind on seventeen shots, that they had not been told T.F.'s last name or his birthday or race, nor did they receive a folder saying what he liked to eat or play with. He came with one book bag filled with some clothes and a note with a doctor's appointment on it. (Compl. ¶¶ 74-80.)
In February 2015, Plaintiff was arrested and placed in the Lawrence County Jail for approximately two months. The District Attorney's Office seized her parents' car, a television that Taylor F. bought for Christmas with money from her grandmother and a computer that she bought with money from her other grandmother. Although checks and receipts were provided, nothing was ever returned. Lamancusa became more brazen knowing that she was desperate to get her son back. He began to call Plaintiff's cell phone, wanting to meet with her and promising her the return of her son and a good future. Two months after Plaintiff got out of jail, LCCYS took away her visits with T.F. and minimized them to one visit every other week. In August 2015, Plaintiff met Gilberto Bobadilla and became pregnant in January 2016. Bobadilla witnessed phone calls and messages from Lamancusa in which he threatened Taylor F. that if she did not cooperate with him he would make sure that she would go to prison and never see her son again. Lamancusa again told her that if she did him a favor he would do one for her and she agreed in order to placate him although she had no intention of doing so. Lamancusa then dropped all of her drug charges down to disorderly conduct and she was permitted off of probation very early, and he offered to expunge her juvenile record. But when she failed to reciprocate with sexual favors, Lamancusa became angry and told her she had to leave the state. After Plaintiff gave birth to a daughter (N.F.) while she was living at her parents' house, Lamancusa came to the house at 2:00 a.m. in February 2017. He grabbed her and started kissing her neck all the down to her inner thigh. She was afraid to make him angry so she said her daughter was crying, woke her up and brought her into the kitchen so that he would leave. He made her delete messages and threatened to refile charges if she did not stage messages and act interested because he did not trust her. Previously, around June 2016, she testified at Platt's murder trial and almost immediately thereafter, T.F. was returned to her. (Compl. ¶¶ 81-100.)
Plaintiff alleges that T.F. struggles with everyday life and with functioning in society. He is afraid of new people and can be aggressive, and he becomes afraid whenever Taylor F. leaves him. He is petrified of closed doors because Taylor F. believes that he was locked in his bedroom by his last foster family. He does not function well in school or get along with his peers. He eats impulsively and is delayed socially, verbally and in his motor skills, and he has poor relationship skills, as psychologists have indicated. He struggles to get along with his sister N.F. T.F. thrives off negative attention, and has PTSD and suffers from various triggers related to the horrific things he has been through. When Taylor F. gives him a bath, T.F. says "Please mama don't put my head under the water" as if he had been drowned in a bathtub. Taylor F. had to give her then three-year old son a shower instead. (Compl. ¶¶ 101-10.)
Plaintiff filed this action on October 19, 2018. Federal question jurisdiction is premised upon the § 1983 claims, 28 U.S.C. § 1331. Supplemental jurisdiction is asserted over the state law claims, 28 U.S.C. § 1367. Count I alleges claims of procedural and substantive due process against all Defendants arising out of T.F.'s being taken from Taylor F. without reasonable grounds, kept in protective custody without benefit of a formal hearing and kept from Taylor F. until she testified in a criminal trial. Count II alleges a conspiracy claim against all Defendants for depriving Taylor F. and T.F. of their procedural and substantive due process rights. Count III alleges a claim under § 1983 for the County's and LCCYS's failure to protect T.F. in foster care. Count IV alleges a state law claim of assault against Lamancusa and Count V
On December 19, 2018, Defendants filed a motion to dismiss (ECF No. 8). On February 11, 2019, Plaintiff filed a brief in opposition (ECF No. 16).
The Supreme Court has issued two decisions that pertain to the standard of review for failure to state a claim upon which relief could be granted. The Court held that a complaint must include factual allegations that "state a claim to relief that is plausible on its face."
Defendants argue that: 1) the civil rights claims asserted by Taylor F. on her own behalf are untimely because they were filed more than two years after T.F. was returned to her custody; 2) the substantive due process claim in Count I fails to meet the "shocks the conscience" standard because, even according to the allegations of the Complaint, T.F. was removed from Taylor F.'s custody after he was present at the scene of a homicide and after she was placed in a juvenile detention facility; 3) the procedural due process claim in Count I should be dismissed because she points only to state statutes that were not followed; 4) Count II fails to allege a conspiracy because it contains only vague allegations and it is legally impossible for the County to conspire with its own agency (LCCYS) and a County official (Lamancusa); 5) Count III appears to allege a claim under the state-created danger theory but it fails to meet the elements of such a claim; and 6) after the federal claims are dismissed, the state law claims should be dismissed pursuant to 28 U.S.C. § 1367(c)(3).
Plaintiff responds that: 1) as Defendants acknowledge, the statute of limitations would not bar claims on behalf of T.F., a minor, and Taylor F. did not obtain full custody of him back until December 2016, and there was an ongoing conspiracy to keep him from his mother; 2) the substantive due process claim has been adequately pleaded—just because T.F. was unfortunately at the scene of a homicide does not mean that he should have been taken from Taylor F.'s care and the Complaint does not allege that she was placed in a juvenile facility for a good reason (on the contrary, it alleges that the charges against her were dropped) and there was no evidence of abuse, therefore no basis for removing T.F. from her custody; 3) the procedural due process claim has been adequately pleaded—no notice or opportunity to be heard was given prior to T.F. being taken and unlike the case Defendants cite, no post-deprivation hearing was held within 72 hours; 4) the intracorporate conspiracy doctrine upon which Defendants rely has not been applied to a situation in which a county and its agency are alleged to have conspired with a county official, who is also being sued in his individual capacity; 5) Count III does not allege a state-created danger theory but a claim of failure to protect a child in foster care; and 6) the state law claims should not be dismissed because even Defendants acknowledge that they are not seeking dismissal of all the federal claims and in addition they do not involve complex or novel issues of state law.
The Court of Appeals has stated that:
Because Congress did not establish a statute of limitations for civil rights claims, federal courts "borrow" state statutes of limitations governing analogous causes of action.
Unlike the selection of the limitations period, the date the cause of action accrues is governed by federal law.
The Complaint in this case was filed on October 19, 2018. Thus, the events upon which it is based must have accrued on or after October 19, 2016. Defendants argue that Taylor F. must have been aware of the improper removal of T.F. and the series of placements thereafter by June 2016, when she indicates that T.F. was returned to her custody. Plaintiff responds that she did not obtain full custody of T.F. until approximately six months later (December 2016) and there was an ongoing conspiracy and thus her claims would be timely.
According to the allegations of the Complaint, T.F. was removed from Taylor F.'s custody in late 2013 and the placements with foster families ended in June 2016 when T.F. was returned to Taylor F. On the face of the Complaint, Taylor F.'s claims accrued more than two years before she filed this action.
On the other hand, as Defendants admit, the claims she brings on behalf of T.F. are not time barred because T.F. is a minor and Pennsylvania has a statute that tolls causes of action until a minor reaches the age of majority. 42 Pa. C.S. § 5533(b)(1)(i).
It is provided in 42 U.S.C. § 1983 that:
The Supreme Court has held that § 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes."
The Fourteenth Amendment provides that states shall not "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV. In Count I, Plaintiff alleges that Defendants deprived Taylor F. and T.F. of their liberty interests, privileges and immunities, particularly: the liberty and privacy interest in maintaining custody of T.F. without undue interference including removing T.F. from the home without notice and a hearing, the right of familial association, the right to freedom of association and the right to substantive and procedural due process secured by the Fourteenth Amendment. In Count II, Plaintiff alleges a conspiracy to deprive Taylor F. and T.F. of these constitutional rights and in Count III, Plaintiff alleges that the County and LCCYS acted with deliberate indifference to T.F.'s right to bodily integrity by placing him in at least three foster homes where he was mistreated.
"The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment."
In Count I, Plaintiff alleges procedural and substantive due process claims arising out of Defendants' acts of taking T.F. from Taylor F.'s custody and keeping them separated until Taylor F. testified against Platt at a criminal trial. Defendants move to dismiss Count I on the grounds that the substantive due process claims fails to allege "conscience shocking" behavior and the procedural due process claim is based solely on state statutes. Plaintiff responds that she has alleged conscience-shocking behavior and that her claims is not based solely on failure to comply with state statutes.
As the Supreme Court has explained, it is "the substantive component of the Clause that protects individual liberty against `certain government actions regardless of the fairness of the procedures used to implement them.'"
"To generate liability, executive action must be so ill-conceived or malicious that it `shocks the conscience.'"
Plaintiff disputes both Defendants' unsupported legal argument and their reading of the Complaint. She argues that no case has held that a minor child who—through no fault of the parent—was present at the scene of a homicide should be removed from the parent's custody. Moreover, the Complaint does not allege that Taylor F. was placed in a juvenile facility for a reason that was presumably not benign. On the contrary, the Complaint alleges that the charges against her were dropped at the preliminary hearing.
At this stage of the proceedings, the allegations of the Complaint must be taken as true. Thus, the Complaint alleges that T.F. was accidentally present at the scene of a homicide, that Taylor F. was placed in a juvenile facility on the basis of charges that were dropped at the preliminary hearing and that there was no allegation of abuse. In this scenario, the removal of T.F. from Taylor F.'s custody could rise to the level of conscience-shocking behavior. Moreover, Plaintiff has also alleged that Defendants kept T.F. apart from her until she testified against Platt at a criminal trial and Defendants have not even suggested that such an allegation is not conscience-shocking.
"Once it is determined that due process applies, the question remains what process is due."
Plaintiff responds that, unlike the situation in
In Count II, Plaintiff alleges a conspiracy to deprive Taylor F. and T.F. of their rights. Defendants argue that the allegations of the Complaint are too vague to allege a conspiracy and that it is legally impossible for the County, LCCYS and Lamancusa to conspire with each other.
Plaintiff alleges that LCCYS told her immediately after the charges were dropped at the preliminary hearing that T.F. would be returned to her if she cooperated with the District Attorney's Office and testified against Platt. She also alleges that Lamancusa told her that she would get her son back sooner if she worked for him as a confidential informant, threatened to keep her son from her if she did not cooperate and said he would do her a favor if she did him a favor. She has also alleged that her son was returned to her after she testified against Platt. These allegations are specific enough to allege a conspiracy to keep T.F. from Taylor F. until she testified against Platt.
With respect to Defendants' argument that they could not conspire with one another because they are the same entity, it is true that LCCYS is a County agency that acts on the County's behalf.
In Count III, Plaintiff alleges a claim against the County and LCCYS for failing to protect T.F. in foster care. Defendants argue that Plaintiff is attempting to state a claim under the state-created danger theory but fails to allege the elements of this claim.
As a general proposition, the government does not have a duty to protect individuals from private violence. A duty may arise out of certain "special relationships."
The Court of Appeals has held that "when the state places a child in state-regulated foster care, the state has entered into a special relationship with that child which imposes upon it certain affirmative duties. The failure to perform such duties can give rise, under sufficiently culpable circumstances, to liability under section 1983."
In Counts IV and V, Plaintiff alleges state law claims against Lamancusa for assault and battery. Defendants move to dismiss these claims pursuant to 28 U.S.C. § 1367(c)(3).
The supplemental jurisdiction statute provides that:
28 U.S.C. § 1367(a). Plaintiff's state law claims in Counts IV and V arise out of the same circumstances and are so related to their federal claims that they form part of the same case or controversy.
Subsection (c) provides that a district court may, in its discretion, decline to exercise jurisdiction if any of four conditions are met. One of these conditions is if "the district court has dismissed all claims over which it has original jurisdiction." § 1367(c)(3). However, for the reasons explained above, the claims in Counts I, II and III should not all be dismissed. Therefore, dismissing the state law claims is not appropriate at this time.
For these reasons, the Motion to Dismiss filed by Defendants (ECF No. 8) will be granted in part and denied in part.
An appropriate order follows.
AND NOW, this 28th day of May, 2019, for the reasons explained above,
IT IS HEREBY ORDERED that the Motion to Dismiss filed by Defendants (ECF No. 8) is granted with respect to Taylor F.'s individual claims in Counts I, II and III and denied in all other respects.
IT IS FURTHER ORDERED that Defendants file an answer to the Complaint by June 11, 2019.
