ROUND v. CITY OF PHILADELPHIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DUNCAN ROUND, et al.,

Plaintiffs,

CIVIL ACTION

v. NO. 19-3513

CITY OF PHILADELPHIA, et al.,

Defendants.

OPINION

Slomsky, J. May 1, 2020

TABLE OF CONTENTS

I. INTRODUCTION ................................................................................................................ 3

II. BACKGROUND .................................................................................................................. 3

III. STANDARD OF REVIEW ................................................................................................ 10

IV. DISCUSSION .................................................................................................................... 12

The Two Claims Against the Philadelphia Police Department and Philadelphia DHS

in Counts VI and VII Will Be Dismissed .......................................................................... 12

The Two Claims Against the City of Philadelphia in Counts VI and VII

Will Be Dismissed ............................................................................................................ 13

1. Count VI Will Be Dismissed Because the City of Philadelphia Did Not Issue

the Removal Order ....................................................................................................... 15

2. Count VII Will Be Dismissed Because It Does Not State a Monell Claim Against

the City of Philadelphia ................................................................................................ 16

All Claims Against Police Commissioner Richard Ross, Jr. Will Be Dismissed ............. 21

1. All Section 1983 Claims Against Ross Will Be Dismissed Because

the Amended Complaint Does Not Allege His Personal or Supervisory

Involvement in the Alleged Constitutional Violations ................................................. 21

2. All Supplemental State Law Claims Against Ross Will Be Dismissed

Pursuant to 28 U.S.C. § 1367 ....................................................................................... 23

The Claim Against Suzann Morris in Count VI Will Be Dismissed ................................. 23

V. CONCLUSION .................................................................................................................. 28

I. INTRODUCTION

Plaintiffs Duncan Round and Kirsten Round bring this suit against various institutional and

individual defendants for alleged violations of their constitutional rights stemming from Duncan

Round’s arrest for sexual assault of two minors, and the removal of children from Sprouts Day

Care Center, a childcare center owned and operated by Plaintiffs. In their Amended Complaint,

Plaintiffs assert that Defendants committed several constitutional violations, triggering civil

liability under 42 U.S.C. § 1983, and two supplemental Pennsylvania state law claims.

Before the Court are two Motions to Dismiss. The first was jointly filed on October 16,

2019, by the City of Philadelphia and former Police Commissioner Richard Ross, Jr. (Doc. No. 8).

The second was filed on November 12, 2019 by Suzann Morris.1 (Doc. No. 21.) For reasons that

follow, the Court will grant both Motions in their entirety and Plaintiffs’ claims against the City of

Philadelphia, Police Commissioner Richard Ross, Jr., and Suzann Morris will be dismissed. The

Court will also dismiss sua sponte all claims against the Philadelphia Police Department and

Philadelphia Department of Human Services because these entities are not subject to suit under

Section 1983.

II. BACKGROUND

Plaintiff Duncan Round2 and his wife, Plaintiff Kirsten Round, owned and operated Sprouts

Day Care Center (“Sprouts”), a childcare center located in Philadelphia, Pennsylvania. (Doc. No.

6 at 6.) Sprouts opened in 2007 and operated until the events that led to the filing of this lawsuit.

(Id.)

1 Suzann Morris was the Deputy Secretary of the Pennsylvania Department of Human Services.

2 All references in this Opinion to “Plaintiff” or “Round” will refer to Duncan Round.

In July 2015, Colin and Heather Shearn enrolled at Sprouts their two children, a brother

and sister who are five-year-old twins (“A.S.” and “C.S.,” respectively). (Id. at 7.) The children’s

tenure was unremarkable until June 2017, when Heather Shearn contacted Plaintiffs and claimed

that one of her children had fractured an arm while at the daycare center and demanded $5,000 in

restitution.3 (Id.) Plaintiffs did not believe the allegation, considered the demand to be

extortionate, and refused to pay the requested amount. (Id.)

On July 24, 2017, about one month later, Heather Shearn contacted the Philadelphia

Department of Human Services (“Philadelphia DHS”) and complained that two Sprouts

employees, including Plaintiff, had sexually assaulted her children. (Id.) The next day,

Philadelphia DHS Investigator Jenifer Klepsky, Philadelphia Police Officer Toni Madgey, and

Colleen Getz of the Philadelphia Children’s Alliance interviewed Heather Shearn, Colin Shearn,

A.S., and C.S. (Id.) According to Plaintiffs, A.S. and C.S.’s statements to Klepsky, Madgey, and

Getz were contradictory, inconsistent, and in some circumstances, verged on the absurd.4 (Id. at

7-9.) Plaintiffs also contend “the circumstances clearly suggested the mother was coaching her

children.” (Id. at 8.) Apparently, Getz, in her interview notes, raised some concern about the

credibility of the children’s statements. (Id. at 9.)

The investigation quickly expanded. A.S. and C.S. underwent an evaluation at the

Children’s Hospital of Philadelphia (“CHOP”), and the Philadelphia Police Department conducted

a search of the premises of Sprouts Day Care Center. (Id. at 9-10.) It seems that neither avenue

3 The Amended Complaint does not specify which child allegedly suffered the injury. (See Doc.

No. 6 at 7.)

4 Plaintiffs allege that during the interviews the “allegations were inconsistent about who was

abused, the identify of the abusers, where the abuse occurred, who was present during the

abuse, and what actually occurred[.]” (Doc. No. 6 at 8.) Plaintiffs aver that C.S. stated that

the abuse occurred while she was at a museum with her parents and brother. (Id.)

of investigation yielded evidence of wrongdoing by Round. According to Plaintiffs, A.S. and C.S’s

examinations at CHOP yielded no evidence of physical trauma associated with sexual assault (see

id. at 9), nor did the search of Sprouts provide any evidence that would implicate Round (see id.

at 10). In fact, while semen was found in the bathroom at Sprouts, subsequent testing by the

Philadelphia Police Department’s Office of Forensic Science excluded Round and all other Sprouts

employees as the source. (Id.)

The following day, Philadelphia DHS Investigator Klepsky interviewed the other Sprouts

employee accused of sexual assault. (Id. at 10.) During that interview, the other employee denied

any wrongdoing and told Klepsky that C.S. had made false allegations of sexual and physical abuse

in the past. (Id. at 11.) Klepsky interviewed at least five other Sprouts employees and none of

them produced any evidence of wrongdoing by Round. (Id.)

On July 28, 2017, Officer Madgey filed a criminal complaint against Round. (Id. at 11.)

According to Plaintiffs, the criminal complaint was filed before the Office of Forensic Science

issued their findings. (Id.) Additionally, Plaintiffs allege that Madgey’s affidavit of probable

cause, which supported the criminal complaint, was based solely on the statements of A.S., C.S.,

and Heather Shearn. (Id.)

After the criminal complaint was filed, Magistrate Judge Jane Rice issued a warrant for

Rounds’ arrest. (Id. at 13.) On August 2, 2017, he voluntarily surrendered to the Philadelphia

Police Department and was charged with rape of a child, involuntary deviate sexual intercourse

with a child, and several other felony and misdemeanor offenses. (Id. at 14.) Philadelphia Police

Officer William Brophy was the arresting officer. (Id.) Next, on August 3, 2017, Suzann Morris,

Deputy Secretary of the Pennsylvania Department of Human Services (“Pennsylvania DHS”),

issued an order (the “Removal Order”)5 pursuant to 55 Pa. Code § 20.376 removing all children

from the Center, which had the practical effect of closing Sprouts Day Care indefinitely.7 (Id. at

14.) It appears Plaintiffs did not avail themselves of their right to appeal the Removal Order,

including the right to further administrative and judicial review. (See Doc. No. 21-2.)

On August 30, 2017, a preliminary hearing was held before Judge James Murray Lynn in

the Philadelphia Court of Common Pleas. (Doc. No. 6 at 14.) During the hearing, A.S. and C.S.

testified. (Id.) According to Plaintiffs, their testimony was inconsistent with prior statements made

5 The Removal Order states, in pertinent part:

And now this 3rd day of August 2017, pursuant to 55 Pa. Code § 20.37, the Commonwealth of

Pennsylvania, Department of Human Services, hereby determines that the conditions existing

at:

Sprouts Preschool

604 South 9th Street

Philadelphia, PA 19147-2028

As described in Attachment A, constitute gross incompetence, negligence and misconduct in

operating a facility likely to constitute immediate and serious danger to the life or health of the

children in care.

Accordingly, the Department hereby orders that all children be removed from the facility

forthwith.

(Doc. No. 21-2 at 2.)

6 55 Pa. Code § 20.37 states, in pertinent part:

If the Department finds evidence of gross incompetence, negligence, misconduct in operating

the facility or agency, or mistreatment or abuse of clients, likely to constitute an immediate and

serious danger to the life or health of the clients, the Department will take immediate action to

remove the clients from the facility or agency.

55 Pa. Code § 20.37.

7 In their filings, Plaintiffs refer to the Removal Order as a “shutdown order.” (See e.g., Doc.

No. 24-1 at 12.) While the Removal Order may have had the practical effect of closing

Sprouts, in substance it is a removal order.

to investigators. (Id.) Plaintiffs claim that A.S. stated that nothing inappropriate had ever

happened between him and Round. Moreover, C.S. alleged that she was abused by Round both at

school and at her parent’s house, and that, incredibly enough, her parents, Heather and Colin

Shearn, witnessed the alleged abuse. (Id.)

Over the next few months, the Philadelphia Police Department and the Philadelphia DHS8

continued to investigative the claims against Round. Officers Madgey and Ferrell interviewed

other Sprouts employees and parents of other children enrolled at Sprouts. (Id. at 15.) According

to Plaintiff, “all those interviewed denied that [he] was ever engaged in inappropriate behavior

with any children, including A.S. and C.S.” (Id.)

On January 16, 2019, the Philadelphia District Attorney’s Office filed a motion to dismiss

the criminal case against Plaintiff. (Id. at 16.) The motion was granted by Judge Glynnis Hill.

(Id.) Round later filed a petition for expungement, which was consented to by the Philadelphia

District Attorney’s Office. (Id.) Sprouts, however, remains closed indefinitely pursuant to

Pennsylvania DHS’s Removal Order, dated August 3, 2017. (Id.)

On August 2, 2019, Plaintiffs initiated this federal case by filing a Complaint (Doc. No. 1)

against the following eight Defendants: (1) the City of Philadelphia, (2) the Philadelphia Police

Department, (3) Police Commissioner Richard Ross, Jr., (4) Officer William Brophy, (5) Officer

Toni Madgey, (6) Officer Carol Farrell, (7) Philadelphia DHS, (8) Deputy Secretary Suzann

Morris, and (9) Philadelphia DHS Investigator Jenifer Klepsky. (Id. at 1-2.) After the City of

8 It is unclear how Philadelphia DHS and Pennsylvania DHS interact in a situation involving an

allegedly abused child. Neither party had described the nature of the relationship. Moreover,

although the Court is bound by the allegations in the Amended Complaint, there is a concern

that Plaintiffs may be conflating Philadelphia DHS and Pennsylvania DHS throughout.

Despite this concern, the Court will rely on the Amended Complaint and refer to Philadelphia

DHS in the Background section, unless a conflation is evident by authentic exhibits or publicly

available documents that the Court is permitted to consider on a motion to dismiss.

Philadelphia and Police Commissioner Richard Ross, Jr. filed their initial motion to dismiss (Doc.

No. 2), Plaintiffs filed an Amended Complaint (Doc. No. 6), which is the operative pleading.9

In the Amended Complaint, Plaintiffs name the same Defendants and assert the following

seven claims:

Count I: Unlawful arrest under 42 U.S.C. § 1983 against all individual Defendants;

Count II: A supplemental state law claim for false imprisonment against all individual

Defendants;

Count III: Unjustified search under 42 U.S.C. § 1983 against all individual Defendants;

Count IV: Malicious Prosecution under 42 U.S.C. § 1983 against all individual

Defendants;

Count V: A supplemental state law claim for malicious prosecution against all individual

Defendants;

Count VI: Deprivation of Property Interest without Due Process under 42 U.S.C. § 1983

against all Defendants;10 and

Count VII: A Monell claim under 42 U.S.C. § 1983 against the Philadelphia Police

Department, the Philadelphia Department of Human Services and the City of Philadelphia.

(Id. at 19-26.)

On October 16, 2019, the City of Philadelphia and Police Commissioner Richard Ross, Jr.

filed a Second Motion to Dismiss for Failure to State a Claim. (Doc. No. 8.) In their Motion, the

City of Philadelphia and Ross argue that Plaintiffs’ Amended Complaint lacks sufficient factual

allegations to support the claims against them. (Id. at 3.) First, it is evident that neither the City

nor Ross issued the Removal Order which is the basis of the Count VI due process claim against

9 On October 2, 2019, the Court denied the initial motion to dismiss without prejudice as moot.

(Doc. No. 7.)

10 Although not titled as such, Count VI is a Monell claim because it asserts a claim under 42

U.S.C. § 1983 against the City of Philadelphia. Count VII is also a Monell claim.

them. Second, City argues that Plaintiffs’ Monell Claim in Count VII must be dismissed because

the Amended Complaint did not include factual averments of an unconstitutional policy, custom

or practice—nor an endorsement of an unconstitutional policy, custom or practice by a municipal

policymaker—which are both required to establish a Monell claim. (Id. at 5-9.) Instead, according

to the City, Plaintiffs simply set forth a series of conclusory allegations that paraphrased the

elements of a Monell claim. (Id.) Ross argues that Plaintiffs’ claims against him must be dismissed

because there is no vicarious or supervisory liability under 42 U.S.C. § 1983 and the Amended

Complaint does not assert that he was personally involved in the alleged violations. (Id. at 9-10.)

On October 28, 2019, Plaintiffs filed a Response (Doc. No. 18), arguing that the Amended

Complaint contains sufficient factual content to permit a reasonable inference of liability against

the City and Ross. They claim that Ross is a policymaker who endorsed the City’s unconstitutional

policies as the ultimate supervisor of the police and contend that this endorsement constitutes the

personal involvement needed to establish liability. (See generally, Doc. No. 18-1.)

On November 12, 2019, Suzann Morris filed her Motion to Dismiss. (Doc. No. 21.) At

the time, Morris was named as a Defendant in Counts I through VI, and in the Motion she sought

dismissal of all six Counts. Plaintiffs, however, filed a Notice of Voluntary Dismissal (Doc. No.

23) on December 10, 2019, dismissing Counts I through V against her. Therefore, at present,

Morris is named only in the due process claim in Count VI. Morris argues that she must be

dismissed as a Defendant because she is entitled to qualified immunity. (Doc. No. 21-1 at 9-13.)

On December 10, 2019, Plaintiffs filed a Response in Opposition to Morris’s Motion to

Dismiss. (Doc. No. 24.) In the Response, Plaintiffs assert that “Defendant Suzann Morris is not

entitled to qualified immunity on the Due Process claim related to issuing the order to shut down

[S]prouts.” (Doc. No. 24-1 at 9-15.) Plaintiffs provide a lengthy explanation of their due process

claim, arguing generally that they have a property interest in operating Sprouts and that the process

they were afforded did not provide due process of law because they could not “meaningfully

dispute the allegations [in the Removal Order] until the criminal proceeding against Plaintiff

Duncan Round concluded.” (Id. at 13.) Morris filed a Reply on December 17, 2019. (Doc. No.

25.) On January 24, 2020, the Court held a hearing on Defendants’ Motions to Dismiss during

which the parties recited their respective positions. (See Doc. No. 27.)

For reasons that follow, the Court will dismiss Plaintiffs’ claims against the City of

Philadelphia, the Philadelphia Police Department, Philadelphia DHS, Police Commissioner

Richard Ross, Jr., and Suzann Morris.

III. STANDARD OF REVIEW

The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) for failure

to state a claim is set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009). After Iqbal it is clear that

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice” to defeat a Rule 12(b)(6) motion to dismiss. Id. at 678; see also Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007). “To survive dismissal, ‘a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’”

Tatis v. Allied Interstate, LLC, 882 F.3d 422, 426 (3d Cir. 2018) (quoting Iqbal, 556 U.S. at 678).

Facial plausibility is “more than a sheer possibility that a defendant has acted unlawfully.” Id.

(quoting Iqbal, 556 U.S. at 678). Instead, “[a] claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678).

Applying the principles of Iqbal and Twombly, the Third Circuit in Santiago v. Warminster

Township, 629 F.3d 121 (3d Cir. 2010), set forth a three-part analysis that a district court in this

Circuit must conduct in evaluating whether allegations in a complaint survive a Rule 12(b)(6)

motion to dismiss:

First, the court must “tak[e] note of the elements a plaintiff must

plead to state a claim.” Second, the court should identify allegations

that, “because they are no more than conclusions, are not entitled to

the assumption of truth.” Finally, “where there are well-pleaded

factual allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an entitlement for

relief.”

Id. at 130 (quoting Iqbal, 556 U.S. at 675, 679). The inquiry is normally broken into three parts:

“(1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory

allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating

whether all of the elements identified in part one of the inquiry are sufficiently alleged.” Malleus

v. George, 641 F.3d 560, 563 (3d Cir. 2011).

A complaint must do more than allege a plaintiff’s entitlement to relief, it must “show”

such an entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.

2009) (citing Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). “[W]here the

well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,

the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal,

556 U.S. at 679 (alteration in original) (citation omitted). The “plausibility” determination is a

“context-specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Id.

When determining whether a claim is plausible, a district court may also consider any

affirmative defenses raised by the moving party. “Technically, the Federal Rules of Civil

Procedure require that affirmative defenses be pleaded in the answer.” Robinson v. Johnson, 313

F.3d 128, 135 (3d Cir. 2002) (citing Fed. R. Civ. P. 12(b)). However, the so-called “Third Circuit

Rule” allows affirmative defenses to be raised in a 12(b)(6) motion. Id.; see also Ball v. Famiglio,

726 F.3d 448, 459 n.16 (3d Cir. 2013) cert. denied, 134 S. Ct. 1547 (U.S. 2014) (“[A] number of

affirmative defenses that are not listed in Rule 12(b) [can] still be made by motion, provided that

the basis of the defense [is] apparent on the face of the complaint.”); Bethel v. Jendoco Const.

Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) (“[A]n affirmative defense may be raised on a 12(b)(6)

motion if the predicate establishing the defense is apparent from the face of the complaint.”). For

instance, “qualified immunity may be raised in a motion to dismiss at the pleading stage[.]” Eddy

v. Virgin Islands Water & Power Auth., 256 F.3d 204, 210 n.3 (3d Cir. 2001).

IV. DISCUSSION

The Two Claims Against the Philadelphia Police Department and Philadelphia

DHS in Counts VI and VII Will Be Dismissed

As an initial matter, the Court will dismiss the claims against the Philadelphia Police

Department and Philadelphia DHS, which are named Defendants in Counts VI and VII. (Doc. No.

6.) These entities are part of the City of Philadelphia—which is the proper Defendant—and

therefore cannot be sued.

Under Pennsylvania law,

[N]o such department shall be taken to have had, since the passage

of the act to which this is a supplement, a separate corporate

existence, and hereafter all suits growing out of their transactions,

and all claims to be filed for removing nuisances, together with all

bonds, contracts and obligations, hereafter to be entered into or

received by the said departments, shall be in the name of the city of

Philadelphia.

53 P.S. § 16257. In accordance with this statute, “[t]he Third Circuit has explained that, for

purposes of section 1983 liability, [a] municipality and [its] department[’s] are treated as a single

entity.” Brown v. Cohen, No. 09-2909, 2011 U.S. Dist. LEXIS 57330, at *10 (E.D.Pa. Apr. 21,

2011) (citing Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 n. 4 (3d Cir. 1997)). Thus, the

Philadelphia Police Department and Philadelphia DHS, which are departments of the City of

Philadelphia, are not amenable to suit. See e.g., Gremo v. Karlin, 363 F. Supp. 2d 771, 780-81

(E.D. Pa. 2005) (citing Baldi v. City of Philadelphia, 609 F. Supp. 162, 168 (E.D. Pa. 1985))

(dismissing a Section 1983 claim against the Philadelphia Police Department “because it does not

have a separate corporate existence”); Ali Abu Lumumba v. Philadelphia Dep’t of Human Servs.,

No. 98-5195, 1999 U.S. Dist. LEXIS 7904, at *7-8 (E.D.Pa. May 21, 1999) (concluding that

Philadelphia “DHS is not [a] legal entity which can be sued.”). Consequently, Plaintiffs’ claims

against the Philadelphia Police Department and Philadelphia DHS will be dismissed as a matter of

law. As noted, the City of Philadelphia, which has been sued in this case, is the properly named

Defendant.

The Two Claims Against the City of Philadelphia in Counts VI and VII

Will Be Dismissed

In Counts VI and VII of the Amended Complaint, Plaintiffs allege the City of Philadelphia

violated their rights under the Fourteenth Amendment, and the Fourth and Fourteenth

Amendments, respectively. (Doc. No. 6.) The City argues these claims should be dismissed

because Plaintiffs fail to plead facts plausibly establishing the elements of municipal liability.

(Doc. No. 8.) The Court agrees.

Plaintiffs raise their claims against the City pursuant to 42 U.S.C. § 1983. (Doc. No. 6.)

Section 1983 states in relevant part:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.11

In Monell v. Department of Social Services, the United States Supreme Court held that

municipal entities can be subject to Section 1983 liability in limited circumstances. 436 U.S. 658,

690 (1978). Under Monell, to state a Section 1983 claim against a municipality, a plaintiff must

establish that (1) a constitutionally protected right has been violated, and (2) the alleged violation

resulted from a municipal policy, custom, or deliberate indifference. Id. at 694-95; Andrews v.

City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). When lodging a Monell claim based on

policy or custom, the complaint must sufficiently “link the alleged offending policies or customs

to anyone . . . who had policy-making authority.” Rees v. Office of Children and Youth, 473 Fed.

App’x 139, 143 (3d Cir. 2012).

The gravamen of Monell and its progeny is that “recovery from a municipality is limited

to acts that are, properly speaking, acts ‘of the municipality’ – that is, acts which the municipality

has officially sanctioned or ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).

In other words, the constitutional deprivation must have its origin in the policy or custom of the

municipality, and liability based on the actions of city officials exists only where it can be shown

that the officials acted in accordance with that policy or custom. Monell, 436 U.S. at 694.

Accordingly, municipalities cannot be held liable under Section 1983 for the acts of its employees

based on the doctrine of respondeat superior or for other forms of vicarious liability. Monell, 436

U.S. at 692 (noting that the language of Section 1983 “cannot easily be read to impose liability

vicariously on government bodies solely on the basis of the existence of an employer-employee

11 Importantly, Section 1983 does not create substantive rights. Instead, it is a statutory

mechanism that allows persons to seek review of alleged state and local violations of federal

law in federal court. In fact, the purpose of the statute “was to interpose the federal courts

between the States and the people, as guardians of the people's federal rights[.]” Mitchum v

Foster, 407 U.S. 225, 242 (1972).

relationship with a tortfeasor”); see also Reitz v. County of Bucks, 125 F.3d 139, 146 (3d Cir.

1997) (“[L]iability simply cannot be predicated upon a showing of respondeat superior.”).

1. Count VI Will Be Dismissed Because the City of Philadelphia Did Not Issue

the Removal Order

In Count VI of the Amended Complaint, Plaintiffs allege that the City of Philadelphia

violated Section 1983 when it deprived them of their property interest in Sprouts without due

process of law. They allege that they had a constitutionally protected property interest in Sprouts,

which was improperly impinged upon when it ceased doing business as a result of the Removal

Order. This argument, however, is without merit because Pennsylvania DHS issued the Removal

Order, not the City of Philadelphia.

Plaintiffs’ due process claim against the City fails because they conflate Philadelphia DHS

with Pennsylvania DHS. In the Amended Complaint, Plaintiffs state that “[o]n August 3, 2017,

[the] Philadelphia Department of Human Services recklessly and without cause issued an Order

closing down Sprouts Preschool indefinitely . . . [and] Sprouts Preschool remains closed to date

pursuant to that Order.” (Doc. No. 6 at 14.) Count VI charges the City with violating Plaintiffs’

due process rights by issuing the Removal Order. (See id. at 24-26.) However, Pennsylvania

DHS—not Philadelphia DHS—issued the Removal Order in accordance with its authority under

55 Pa. Code § 20.37.12 (See Doc. No. 21-2.) As a result, Plaintiffs’ claim against the City for

12 In deciding whether Plaintiffs have pled a claim upon which relief may be granted, the Court

“must consider only the complaint, exhibits attached to the complaint, matters of public record,

as well as undisputedly authentic documents if the complainant’s claims are based upon these

documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). Extrinsic evidence is

usually not relevant to a motion to dismiss. “However, an exception to the general rule is that

a document integral to or explicitly relied upon in the complaint may be considered without

converting the motion to dismiss into one for summary judgment.” In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (internal citations and quotations

omitted). Therefore, in addition to the Amended Complaint, the Court will consider the

Removal Order issued by the Pennsylvania Department of Human Services on August 3, 2017,

which is attached to Defendant Suzann Morris’s Motion to Dismiss (Doc. No. 21-2). The

violating their due process rights is not viable. The City cannot be held liable for an order it did

not issue. Thus, the City of Philadelphia will be dismissed as a Defendant in Count VI.

2. Count VII Will Be Dismissed Because It Does Not State a Monell Claim

Against the City of Philadelphia

In Count VII of the Amended Complaint, Plaintiffs attempt to bring another Monell claim

against the City of Philadelphia. They allege that Round was arrested without probable cause in

violation of the Fourth and Fourteenth Amendments. (Doc. No. 6 at 26-27.) They further argue

that these violations are systemic, and reflect the policy or custom of the City—thereby opening

the City up for suit under Section 1983—because it has “maintained for many years a recognized

and accepted policy, custom and/or practice of . . . failing to properly investigate criminal matters

before filing charges[.]” (Id.) They also contend that the City is liable under Section 1983 for

“remaining deliberately indifferent” to the resulting abuses and “failing to properly train . . . its

officers, agents, and/or investigators . . . regarding the appropriate procedures for protecting the

constitutional rights of individuals[.]” (Id. at 27-28.)

In their Motion to Dismiss, the City argues that Count VII must be dismissed because the

Amended Complaint does not allege facts that establish the second prong of a Monell claim, which

requires a showing that the alleged violations resulted from a municipal policy, custom, or the

deliberate indifference of the City. The City contends that the Amended Complaint is deficient in

this regard for two reasons. First, the Amended Complaint does not sufficiently assert an

unconstitutional policy, custom or practice. (Doc. No. 8 at 5.) Second, and in the alternative, the

Amended Complaint does not state that a municipal policymaker endorsed the allegedly

unconstitutional policy or custom. (Id.) The Court will consider each of the City’s arguments in

Removal Order is reviewable under either the exception for public records or the exception for

an integral document that the claims are based upon.

turn, and for reasons that follow, concludes that Plaintiffs did not sufficiently plead a Monell claim

in Count VII.

a. The Amended Complaint Does Not Allege A Municipal Policy,

Custom, or Deliberate Indifference

First, in this case, Count VII must be dismissed because Plaintiffs have not pled sufficient

facts to establish that a municipal policy or custom was the cause of the alleged constitutional

violations. To plead a Monell claim, a plaintiff must allege sufficient facts showing that a

municipal policymaker established a policy or custom that was the moving force behind the

constitutional violation experienced. See Monell, 436 U.S. at 694. The Third Circuit has explained

that a policy is made when a decisionmaker with final authority to establish municipal policy issues

an official proclamation, policy, or edict. Wright v. City of Philadelphia, 685 Fed. Appx. 142, 146

(3d Cir. 2017) (citing Andrews v. Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). Custom,

however, is not specifically endorsed or authorized by law. Id. Rather, custom results from

policymakers’ “acquiescence in a longstanding practice or custom, which constitutes the ‘standard

operating procedure’ of the local government entity.” Id. (quoting Jett v. Dallas Indep. Sch. Dist.,

491 U.S. 701, 737 (1989).

There are numerous ways a plaintiff can sufficiently allege the existence of a municipal

policy or custom needed to establish a Monell claim. For example, a plaintiff can cite the official

policy. See Monell, 436 U.S. at 690 (stating that a municipality may be sued under Section 1983

when it “implements or executes a policy statement, ordinance, regulation, or decision officially

adopted and promulgated by that body’s officers.”). Alternatively, a plaintiff can make specific

reference to “multiple incidents” implicating a particular custom. See Harris v. City of

Philadelphia, 171 F. Supp.3d 395, 401-02 (E.D. Pa. 2016) (finding a custom where there were

“multiple incidents” of police officers using reckless and excessive force in their use of batons).

A plaintiff can also establish custom by conducting a statistical analysis of lawsuits against a

municipality for a violation of a particular constitutional right. See Simpson v. Ferry, 202 F. Supp.

3d 444, 452 (E.D. Pa. 2016) (permitting a Monell claim to proceed following a review of the

plaintiff’s statistical analysis about the number of lawsuits brought against the Philadelphia Police

Department for use of excessive force).

It is insufficient, however, for a plaintiff to merely state the “phraseology” of an alleged

policy or custom if the allegations are unaccompanied by supporting facts. Saleem v. Sch. Dist.,

No. 12-3193, 2013 U.S. Dist. LEXIS 152740, at *9 (E.D. Pa. Oct. 24, 2013) (explaining that

pleadings that are “bereft of any assertions of relevant facts,” containing only the “plaintiff’s bare

allegations . . . are insufficient to show his entitlement to relief.”). Conclusory and general claims

that simply paraphrase Section 1983 will not satisfy federal pleading requirements because they

“fail[] to satisfy the ‘rigorous standards of culpability and causation’ required to state a claim for

municipal liability.” Wood v. Williams, 568 F. App’x 100, 104 (3d Cir. 2014) (quoting McTernan,

564 F.3d at 658-59).

In this case, the Amended Complaint’s bare and conclusory allegations are insufficient to

state a claim under Monell. Aside from the City’s alleged conduct surrounding Round’s

investigation and arrest, the Amended Complaint is devoid of any facts suggesting that the City

has a policy or custom of arresting citizens without probable cause. The allegations in the

Amended Complaint concern only Plaintiffs’ alleged experience. Absent some showing of

comparable instances evidencing a pattern, the Court cannot conclude that Plaintiffs’ allegations

reflect a larger policy or custom. It is an untenable stretch to extrapolate from an isolated

accusation involving Plaintiff alone that his allegations reflect a City practice.

Second, to the extent Plaintiffs attempt to establish a custom based upon a theory that the

City was deliberately indifferent to systemic Fourth and Fourteenth Amendment abuses, this

attempt fails, too.13 In certain circumstances, a municipality may be liable under Section 1983

when it decides “not to train certain employees about their legal duty to avoid violating citizens’

rights,” Connick v. Thompson, 563 U.S. 51, 61 (2011), and this failure “amount[s] to ‘deliberate

indifference’ to the rights of persons with whom the [untrained employees] come into contact,” Id.

(quoting City of Canton, 489 U.S. at 388).14 “A pattern of similar constitutional violations by

untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes

of failure to train.” Id. at 62 (quoting Brown, 520 U.S. at 409).

The Third Circuit considers the following factors in determining whether the deliberate

indifference standard is met:

(1) municipal policymakers know that employees will confront a

particular situation[,] (2) the situation involves a difficult choice or a

history of employees mishandling[,] and (3) the wrong choice by an

employee will frequently cause deprivation of constitutional rights.

Estate of Roman, 914 F.3d at 798 (quoting Doe v. Luzerne Cty., 660 F.3d 169, 180 (3d Cir. 2011)).

13 Plaintiffs’ factual allegations in the Amended Complaint are primarily focused on alleging an

unconstitutional policy or custom. But in Count VII, Plaintiffs make several buzzword-laden

averments, including conclusory statements that the City’s failed to train its officers

appropriately. (Doc. No. 6 at 27-28.) For this reason, the Court also will consider whether the

Amended Complaint states a Monell claim against the City for failing to train its officers.

14 The idea behind the failure-to-train theory is that when “city policymakers are on actual or

constructive notice that a particular omission in their training program causes city employees

to violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the

policymakers choose to retain that program.” Connick, 563 U.S. at 61 (citing Brown, 520 U.S.

at 407). A city’s “policy of inaction” in the face of such notice is functionally equivalent to a

decision to violate the Constitution and thus, in effect, becomes the city’s custom. Id. at 61-

62.

In the Amended Complaint, Plaintiffs’ provide no facts to support any of these three factors.

Other than conclusory allegations that the City was “deliberately indifferent to the systemic abuses

which occurred in accordance with and as a direct and proximate result of the . . . [unconstitutional]

practice,” (Doc. No. 6 at 28), Plaintiffs proffer no facts to support an inference that the City was

on notice that it has failed to train its officers to handle known, constitutionally-difficult

circumstances involving investigations of sexual assault of children. As a result, Plaintiffs have

not properly alleged that the City of Philadelphia has a custom of deliberate indifference.

Accordingly, for all the above reasons, Count VII will be dismissed.

b. The Amended Complaint Does Not Allege Involvement

of a Municipal Policymaker

Even if Plaintiffs sufficiently pled the existence of a municipal policy or custom, their

Monell claim still fails because it does not even allege that a municipal policymaker was aware of

the municipal policy or custom at issue. A plaintiff seeking to establish municipal liability under

Section 1983 “must show that an official who has the power to make policy is responsible for

either the affirmative affirmation of a policy or acquiescence in a well-settled custom.” Bielevicz

v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (citing Andrews, F.2d at 1480). To classify an

individual as a municipal policymaker, a plaintiff must show they possess “final, unreviewable

discretion to make a decision or to take an action.” Andrews, 895 F.2d at 1481. Absent

identification of such a “decisionmaker possess[ing] final authority to establish municipal policy,”

a plaintiff cannot establish as a matter of law that a municipality should be subject to liability under

Section 1983. Id. at 1480.

Plaintiffs argue that the allegedly unconstitutional policies were issued by a policymaker

because the Philadelphia Police Department’s Manual of Directives—which contains the

Department’s rules, policies, and procedures—is issued by the Police Commissioner. (Doc. No.

18 at 16.) Plaintiffs allege that Ross, as Police Commissioner, “approved,” “endorsed” and

“implement[ed]” the official policy. However, to establish liability under Monell, Plaintiffs must

do more than simply note that the Philadelphia Police Department does, in fact, employ an official

policymaker. Instead, they must show that a policymaker knew about or directed the allegedly

unconstitutional policy or custom. That has not been shown here.

In the Amended Complaint, Plaintiffs cite no policy and, more specifically, do not cite to

any portion of Philadelphia Police Department’s Manual of Directives. As a result, the fact that

the Police Commissioner issues these policies provides no support to Plaintiffs’ claim that a

policymaker endorsed a policy of arresting persons without probable cause. Furthermore, to the

extent that Plaintiffs’ claim relies on the proposition that the City of Philadelphia has a particular

unconstitutional custom, they fail to allege the existence of a policymaker responsible for that

custom. Without a policymaker tied to the conduct underlying the alleged harm, Plaintiffs’ claim

against the City of Philadelphia in Count VII is untenable at best.

All Claims Against Police Commissioner Richard Ross, Jr. Will Be Dismissed

1. All Section 1983 Claims Against Ross Will Be Dismissed Because

the Amended Complaint Does Not Allege His Personal or Supervisory

Involvement in the Alleged Constitutional Violations

Counts I, III, IV, and VI of the Amended Complaint contain Section 1983 allegations

against former Police Commissioner Richard Ross, Jr. based on his position of as the ultimate

supervisor of Officers Brophy, Madgey, and Ferrell and as the Philadelphia Police Department’s

ultimate policymaker. (See Doc. No. 6 at 17.) Ross contends that Plaintiffs’ claims must be

dismissed because there is no evidence that he was personally involved in the alleged violations

and no evidence to assert supervisory liability against him. (Doc. No. 8 at 9.) The Court agrees.

To state a claim against a defendant in his individual capacity under Section 1983, a

plaintiff must establish that the defendant had personal involvement in committing the alleged

violations. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor,

451 U.S. 527, 537 n.3 (1981)); see also Agresta v. City of Philadelphia, 801 F. Supp. 1464, 1468

(E.D. Pa. Aug. 11, 1992) (explaining that the liability of an individual officer must “be based on

his own acts or omissions, not those of [other] individual officers.”). Further, because there can

be no vicarious liability claims under Section 1983, the mere fact that a named defendant is in a

supervisory position is insufficient to establish liability. Reaves v. Vaugh, No. 00-2786, 2001 U.S.

Dist. LEXIS 12186, at *4 (E.D. Pa. Aug. 10, 2001).

“A plaintiff can show the personal involvement of a supervisor through allegations of

personal direction or actual knowledge and acquiescence, so long as those allegations are made

with particularity.” Davenport v. City of Phila., No. 16-6397, 2018 U.S. Dist. LEXIS 183746, at

*18 (E.D. Pa. Oct. 26, 2018) (citing Rode, 845 F.2d at 1207). Conclusory allegations and formulaic

recitations of law, however, are insufficient to establish that a supervisor was personally involved

in the deprivation of constitutional rights underlying a Section 1983 claim. Santiago v. Warminster

Twp., 629 F.3d 121, 131 (3d Cir. 2010).

In the instant case, Plaintiffs fail to state a claim against Ross because they do not allege

that he was personally involved in committing the alleged constitutional violations. Instead,

Plaintiffs rely entirely on Ross’s supervisory position as the basis his liability. The crux of

Plaintiffs’ claims against Ross is that

[t]he Philadelphia Police Departments [sic] policies[,] which are

approved and endorsed by Police Commissioner Richard Ross, Jr. .

. . contain no protection for an accused where the evidence is clear

that the claims against the accused were baseless . . . because the

policies do not in any way caution the police to ensure there is

probable cause before making [ ] an arrest. In this way,

[Commissioner Ross] was implementing an official policy, custom

or practice . . . that was carried out by the Defendant Officers.”

(Doc. No. 18-1 at 16-17.)

But Plaintiffs do not allege any facts suggesting that Ross directed Officers Brophy,

Madgey, or Ferrell to investigate or arrest Round. They offer no facts that Ross even knew about

the investigation or arrest of Round. Without any showing that Ross was personally involved in

the decision-making or in the events that led to Plaintiffs’ alleged injuries, there is no claim under

Section 1983. Therefore, all Section 1983 claims against Ross will be dismissed.

2. All Supplemental State Law Claims Against Ross Will Be Dismissed

Pursuant to 28 U.S.C. § 1367

In Counts II and V of the Amended Complaint, Plaintiffs bring state law claims against

Ross for false imprisonment and malicious prosecution, respectively. (Doc. No. 6.) According to

28 U.S.C. § 1367(c)(3), a federal district court may “decline to extend supplemental jurisdiction”

over a plaintiff’s state law claims if the court has already dismissed all federal claims over which

it had original jurisdiction. 28 U.S.C. § 1367(c)(3). Since the Court will dismiss Plaintiffs’ federal

claims against Ross, it will decline to extend jurisdiction over Plaintiffs’ supplemental state law

claims against him under § 1367(c)(3). Consequently, Plaintiffs’ state law claims against Ross will

be dismissed.

The Claim Against Suzann Morris in Count VI Will Be Dismissed

In Count VI—the only count in which Suzann Morris remains as a Defendant—Plaintiffs’

claim that by issuing the Removal Order she deprived them of their property, Sprouts Day Care

Center, in violation of their procedural and substantive due process rights under the Fourteenth

Amendment. Because Morris is cloaked with the affirmative defense of qualified immunity, this

claim will be dismissed.

Under the doctrine of qualified immunity, government officials performing discretionary,

non-prosecutorial functions are shielded from liability insofar as their conduct does not violate

clearly established constitutional rights that a reasonable person would have known. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether a government official is entitled to

qualified immunity, district courts must engage in a two-step analysis. See Saucier v. Katz, 533

U.S. 194, 201 (2001) (explaining the two-step analytical process for determining when qualified

immunity has been overcome). “First, a court must decide ‘whether the facts that a plaintiff has

… shown make out a violation of a constitutional right.’” Spady v. Bethlehem Area Sch. Dist.,

800 F.3d 633, 637 (3d Cir. 2015) (alteration in original) (quoting Pearson v. Callahan, 555 U.S.

223, 232 (2009)). “And second, the court must determine ‘whether the right at issue was “clearly

established” at the time of defendant’s alleged misconduct.’” Id. A district court has discretion to

approach these steps in the sequential order that it deems “most appropriate for the particular case

before [it].” Santini v. Fuentes, 795 F.3d 410, 418 (3d Cir. 2015). Failure to establish either step

is fatal to an attempt to overcome the defense of qualified immunity.

Since the Court has discretion to perform the two-pronged qualified immunity analysis in

the order it deems appropriate, Pearson, 555 U.S. at 236, it will proceed first with the “clearly

established” inquiry. As explained recently by the Third Circuit Court of Appeals,

Qualified immunity’s second prong “shields officials from civil

liability so long as their conduct ‘does not violate clearly established

statutory or constitutional rights of which a reasonable person would

have known.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)

(quoting Pearson, 555 U.S. at 231).

“Clearly established means that, at the time of the officer’s conduct,

the law was sufficiently clear that every reasonable official would

understand that what he is doing is unlawful.” District of Columbia

v. Wesby, 138 S. Ct. 577, 589 (2018) (internal quotation marks and

citation omitted). The inquiry is an “objective (albeit fact-specific)

question,” under which “[an officer]’s subjective beliefs . . . are

irrelevant.” Anderson v. Creighton, 483 U.S. 635, 641 (1987).

Because the inquiry is from the perspective of a reasonable officer,

we “consider[] only the facts that were knowable to the defendant

officer[].” White v. Pauly, 137 S. Ct. 548, 550 (2017) (citation

omitted).

[ . . .]

[I]n most cases, a plaintiff must show that a right is clearly

established because “the violative nature of particular conduct [was]

clearly established.’” Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017)

(quoting Mullenix, 136 S. Ct. at 308). In other words, “settled law,”

Wesby, 138 S. Ct. at 590, must “‘squarely govern[]’ the specific facts

at issue,” see Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)

(quoting Mullenix, 136 S. Ct. at 309). The Supreme Court has

explained that a plaintiff may satisfy this standard by “identify[ing]

a case where an officer acting under similar circumstances as [the

defendant officer] was held to have violated the [constitutional

provision at issue].” White, 137 S. Ct. at 552.

For qualified-immunity purposes, “clearly established rights are

derived either from binding Supreme Court and Third Circuit

precedent or from a ‘robust consensus of cases of persuasive

authority in the Courts of Appeals.’” Bland v. City of Newark, 900

F.3d 77, 84 (3d Cir. 2018) (citation omitted); see Wesby, 138 S. Ct.

at 589–90 (“To be clearly established, a legal principle must . . . [be]

dictated by controlling authority or a robust consensus of cases of

persuasive authority[.]” (citations and internal quotation marks

omitted)).

James v. N.J. State Police (In re Gibbons), No. 18-1432, 2020 U.S. App. LEXIS 12707, at *7-9

(3d Cir. Apr. 21, 2020).

When considering whether the constitutional right Plaintiffs’ rely upon was clearly

established, the Court is guided by the Third Circuit’s direction to “first frame the precise contours

of that right.” Spady, 800 F. 3d at 638. This requires the Court to “frame the right at issue in a [ ]

particularized . . . sense . . . in light of the case’s specific context[,]” id., and determine whether

“existing precedent . . . placed the statutory or constitutional question beyond debate,” Ashcroft

v. al-Kidd, 563 U.S. 731, 741 (2011). In other words, district courts must determine whether

“factually similar precedent exists that would have placed the defendant on notice that [her]

specific conduct was constitutionally unlawful.” Johnston v. Wetzel, No. 16-268, 2019 U.S. Dist.

LEXIS 221856, at *14 (W.D.Pa. Dec. 27, 2019).

In the instant case, Plaintiffs’ claims derive from the Fourteenth Amendment’s due process

clause, which provides that “[n]o state shall . . . deprive any person of life, liberty, or property,

without due process of law[.]” U.S. Const. amend. XIV, § 1. Plaintiffs claim they were deprived

of their Fourteenth Amendment procedural due process protections when the Removal Order was

issued without prior notice, a hearing, or in exchange for just compensation. (Doc. No. 6 at 25.)

In addition, Plaintiffs claim that their Fourteenth Amendment substantive due process rights were

violated because it was outrageous to issue the Removal Order without affording them the

procedural protections under the due process clause. (Id.) Mindful, however, of the Third Circuit’s

direction to frame the right at issue in the case’s specific context, the question before the Court for

purposes of the “clearly established” inquiry is whether, at the time the Removal Order was issued,

there was settled law that issuing a statutorily-authorized removal order following the arrest of an

owner and operator of a daycare center for rape of a child and other regulatory violations

contravene the owners’ Fourteenth Amendment due process rights.

In their filings, Plaintiffs have not offered any relevant, context-specific precedent

supporting their position. They have not cited any law, albeit decisional or statutory, that would

put Morris on notice that after her review of the facts she was not permitted to issue the Removal

Order. Instead, in their Response in Opposition to Morris’ Motion to Dismiss (Doc. No. 24-1),

Plaintiffs rely on an analysis of individual’s property interest in their driver’s license, welfare

benefits, and state-funded public education. (See id. at 9-11.) Given the context-specific nature

of the “clearly established” inquiry, these precedents do not provide the “robust consensus,” Bland,

900 F.3d at 84, required to overcome qualified immunity.

Plaintiffs’ inability to provide any supportive precedent is not surprising since this Court’s

independent search of case law from the Supreme Court, Third Circuit, and other circuit courts

reveals no such precedent. Indeed, given the lack of precedent, Morris’s actions were not only

constitutionally compliant, but objectively reasonable. Morris issued the Removal Order pursuant

to 55 Pa. Code § 20.37. That section states, in pertinent part,

If the [Pennsylvania] Department [of Human Services] finds

evidence of gross incompetence, negligence, misconduct in

operating the facility or agency, or mistreatment or abuse of clients,

likely to constitute an immediate and serious danger to the life or

health of the clients, the Department will take immediate action to

remove the clients from the facility or agency.

55 Pa. Code § 20.37.15

It is evident that Pennsylvania law supported Morris’ emergency action. When she issued

the Removal Order, Morris was aware that Round had recently been arrested for “involuntary

deviate sexual intercourse, unlawful contact with a minor, endangering the welfare of children,

corruption of minors, indecent exposure, indecent assault, and recklessly endangering another

person,” (Doc. No. 21-2 at 3) (capitalization revised), against two five-year-old enrollees at

Sprouts. (See id.) In addition, she was also presented with numerous childcare center regulatory

violations, identified during inspections conducted by the Southeastern Region Office of Child

Development and Early Learning.16 (See id.) These facts would constitute “negligence . . . [or]

15 In fact, since Plaintiffs opted not to challenge at all the Removal Order in state court, they

forfeited their due process rights afforded them under state law. See Zinermon v. Burch, 494

U.S. 113 (1990) (dismissing a plaintiff’s 1983 claim after finding that a state’s statutory post-

deprivation appeal process constituted due process); Alvin v. Suzuki, 227 F.3d 107, 116 (3d

Cir. 2000) (stating that there is no due process violation when “procedural protection[’s] [were]

available and the plaintiff has simply refused to avail himself of them.”).

16 According to the Removal Order’s Attachment, the Southeastern Region Office of Child

Development and Early Learning inspected Sprouts on July 26, 2017 and July 27, 2017. (Doc.

No. 21-2 at 2.) Those inspections revealed numerous regulatory violations, including that “the

basement door, which led to hazards, was not closed and locked,” and “an upstairs window was

open and without a screen.” (Id. at 3-4.)

abuse of clients [] likely to constitute an immediate and serious danger” under 55 Pa. Code § 20.37.

Issuing the Removal Order was prudent and authorized by law.

Accordingly, under all the circumstances confronting her, Morris performed her duties in

accordance with law and not in violation of a clearly established right.17 Morris is entitled to

qualified immunity and for this reason Plaintiffs’ claim against her in Count VI for violation of

their due process rights will be dismissed.

V. CONCLUSION

For reasons set forth above, the Court will grant the City of Philadelphia and Police

Commissioner Richard Ross, Jr.’s Motion to Dismiss the Amended Complaint (Doc. No. 8) and

Suzann Morris’s Motion to Dismiss (Doc. No. 21). The City of Philadelphia, Police Commissioner

Richard Ross, Jr., and Suzann Morris will be dismissed as Defendants in this case. In addition, the

Philadelphia Police Department and Philadelphia DHS also will be dismissed as Defendants in this

case. An appropriate Order follows.18

17 Since Plaintiffs have not satisfied the “clearly established” inquiry, the Court need not consider

if Plaintiffs’ allegations made out a violation of a constitutional right, the other prong of the

qualified immunity analysis.

18 In the interest of clarity, William Brophy, Toni Madgey, Carol Farrell, and Jenifer Klepsky

remain as Defendants in this case. All remaining Defendants have filed Answers to the

Amended Complaint. Brophy, Madgey and Ferrell filed their joint Answer on October 16,

2019. (Doc. No. 9.) Klepsky filed an Answer on October 23, 2019. (Doc. No. 17.)