LOWE v. LANCASTER COUNTY CHILDREN AND YOUTH SOCIAL SERVICES

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

MELANIE LOWE and Z.C., A MINOR, BY AND :

THROUGH HIS MOTHER, MELANIE LOWE, :

Plaintiffs, :

:

v. : No. 5:20-cv-1413

:

LANCASTER COUNTY CHILDREN AND :

YOUTH SOCIAL SERVICES; KAITLIN GEISS; :

KAREN GARBER; and JOHN DOE, :

Defendants. :

__________________________________________

O P I N I O N

Motion to Dismiss, ECF No. 5 - Granted

Joseph F. Leeson, Jr. December 8, 2020

United States District Judge

I. INTRODUCTION

This action was brought pursuant to 42 U.S.C. § 1983 by Plaintiff Melanie Lowe on

behalf of herself and her minor son, Z.C., for the alleged constitutional violations Defendant

Lancaster County Child and Youth Social Services (“LCCYS”) committed in removing Z.C.

from his mother’s care. Defendants Kaitlin Geiss, Karen Garber, and John Doe are social

workers employed by LCCYS. The named Defendants have filed a Motion to Dismiss. For the

reasons set forth below, the Motion is granted, but Plaintiffs are given leave to amend.

II. BACKGROUND

A. Factual Allegations

The Complaint alleges as follows:

Lowe is the mother and primary caregiver of five minor children, including Z.C., who

was ten years of age at the time of the events giving rise to this action. See Compl. ¶¶ 14, 16,

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ECF No. 1. At that time, Z.C. spent alternate weekends with his father, James F. Campbell, in

Lancaster County. Id. ¶ 17.

On or about August 5, 2018, when Z.C. was staying with his father, Campbell called the

police to report that Z.C. molested his nine-year-old daughter and that he “want[ed Z.C.] out of

his house.” Id. ¶¶ 18-20. The police reported the incident to LCCYS, and both responded to

Campbell’s house. Id. Lowe also responded, but was prevented from taking custody of, or

talking to, Z.C. Id. ¶¶ 21-22. LCCYS, after having been made aware that Lowe was the primary

caregiver and that Z.C. was merely visiting his father’s house, took custody of Z.C. Id. ¶ 23.

Lowe repeatedly contacted LCCYS to inquire about her son’s wellbeing, but LCCYS did

not answer or return any of her telephone calls. Id. ¶ 24. LCCYS did not notify Lowe of the

emergency hearing in the Juvenile Court of Lancaster County on August 6, 2018. Id. ¶¶ 23, 24.

At this hearing, the court granted temporary custody of Z.C. to LCCYS. Id. ¶ 24.

On August 8, 2018, Lowe and Campbell attended a shelter care hearing, during which

LCCYS falsely represented to the court that Z.C. was living with his father, not his mother, and

that Z.C. had informed his mother of a prior incident of sexual abuse about which she had not

informed Campbell or the authorities. Id. ¶ 27. After the hearing, the court granted legal and

physical custody of Z.C. to LCCYS pending a disposition hearing on October 22, 2018. Id. ¶ 27.

Z.C. was thereafter moved to Bethany Children’s Home, which was fifty miles away from

Lowe’s home. Id. ¶ 28. LCCYS permanency caseworker, Defendant Geiss, and permanency

supervisor, Defendant Garber, initiated an investigation of Lowe. Id. ¶ 31.

On or about August 27, 2018, Z.C.’s aunt, Tiffany Zellers, delivered a “kinship care”

application to Geiss, in an effort to take custody of Z.C.; however, Geiss never responded to the

application. Id. ¶ 33. LCCYS again misrepresented facts to the court at an adjudicatory hearing

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in the Lancaster County Juvenile Court held on August 27, 2018, including the fact that Ms.

Zeller’s submitted an application for “kinship care.” Id. ¶ 33.

The investigation determined that the allegations were unfounded. Id. ¶¶ 30, 34. On

September 26, 2018, Garber informed Lowe of the same; however, LCCYS did not file a petition

to withdraw its petition for temporary custody of Z.C. until October 9, 2018. Id. ¶¶ 34-35. On

October 10, 2018, Z.C. was returned to the custody of Lowe, fourteen days after the investigation

was concluded. Id. ¶ 36. In total, Z.C. was separated from his mother for sixty-six days. Id. ¶

48.

LCCYS asked Chester County Children and Youth Social Services to open a case for

Lowe and continue monitoring her and her family. Id. ¶ 37. Chester County Children and Youth

Social Services closed the case on Lowe and her family on December 28, 2018. Id. ¶ 39.

B. Procedural Background

Plaintiffs commenced this action on March 13, 2020. The Complaint asserts: (1) all

Defendants violated Plaintiffs’ substantive due process rights by removing Z.C. from his

mother’s custody and retaining custody without reasonable suspicion of abuse or imminent

danger of abuse; (2) LCCYS, Geiss, and Garber violated Plaintiffs’ procedural due process rights

by failing to advise Lowe of the same and, also, by putting false information in the petition filed

with the court seeking custody of Z.C. and by failing to include relevant exculpatory and

explanatory information in the petition thereby denying Lowe the right to an informal ruling by

the court; and (3) LCCYS violated Plaintiffs’ constitutional rights by developing and maintaining

policies or customs of removing children from their natural families and placing them in

institutions, as well as failing to properly supervise and train caseworkers. See Compl. ¶¶ 46-47,

52, 56-58 (Monell claim).

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LCCYS, Geiss, and Garber filed a Motion to Dismiss Plaintiffs’ Complaint under Federal

Rule of Civil Procedure 12(b)(6), arguing that Plaintiffs failed to assert a cause of action upon

which relief may be granted and, additionally, that Defendants Geiss and Garber are entitled to

either absolute or qualified immunity. The Motion has been fully briefed. To date, Defendant

John Doe has not been identified or served with the Complaint.

III. LEGAL STANDARDS

A. Motion to Dismiss Under Rule 12(b)(6)

In rendering a decision on a motion to dismiss, this Court must “accept all factual

allegations as true [and] construe the complaint in the light most favorable to the plaintiff.”

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche

Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (internal quotation marks omitted). Only if

“the ‘[f]actual allegations . . . raise a right to relief above the speculative level’” has the plaintiff

stated a plausible claim. Id. at 234 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 540, 555

(2007)). “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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, “the tenet that a court must accept as true

all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id.

(“[W]hether a complaint states a plausible claim for relief . . . [is] a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense.”). The

defendant bears the burden of demonstrating that a plaintiff has failed to state a claim upon

which relief can be granted. See Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005)

(citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

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B. Section 1983 Claims for Civil Rights Violations

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege:

1. violation of a right secured by the Constitution and laws of the United States;1 and

2. that the violation was committed by a person acting under color of state law.

See West v. Atkins, 487 U.S. 42, 48 (1988). To determine if a person is “acting under color of

state law” (a state actor), the court looks at whether there is “such a ‘close nexus between the

State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of

the State itself.’” Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005) (internal quotations

omitted).

A “defendant in a civil rights action must have personal involvement in the alleged

wrongs; liability [under § 1983] cannot be predicated solely on the operation of respondeat

superior.” See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). “[B]ecause vicarious

liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official

defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal,

556 U.S. at 676.

C. Due Process Claims

“The touchstone of due process is the protection of the individual against arbitrary action

of the government.” Wolff v. McDonnell, 418 U.S. 539, 558 (1974). The Due Process Clause

“prohibits the government from interfering in familial relationships unless the government

adheres to the requirements of procedural and substantive due process.” Croft, 103 F.3d at 1125.

1 Section “1983 is not itself a source of substantive rights, but merely provides a method

for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94

(1989) (internal quotations omitted).

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1. Substantive Due Process

To state a claim for a violation of substantive due process rights, a plaintiff must show:

1. the interest at issue is protected by the substantive due process clause; and

2. “the government’s deprivation of that protected interest shocks the conscience.”

Kane v. Barger, 902 F.3d 185, 192 (3d Cir. 2018). As to the first element, there is a

“fundamental liberty interest of natural parents in the care, custody, and management of their

child.” Santosky v. Kramer, 455 U.S. 745, 753 (1982). As to the second element, the

defendant’s conduct “must exceed both negligence and deliberate indifference, and reach a level

of gross negligence or arbitrariness that indeed ‘shocks the conscience.’” Miller v. City of Phila.,

174 F.3d 368, 375-76 (3d Cir. 1999) (applying the shocks-the-conscious standard to substantive

due process claims against a child welfare agency). In cases against a child welfare agency or its

workers, that “standard is met only if they lacked ‘reasonable and articulable evidence giving

rise to a reasonable suspicion that [the minor had] been abused or [was] in imminent danger of

abuse’ at the time of the challenged action.” See A.J. v. Lancaster Cty., No. 20-1154, 2020 U.S.

App. LEXIS 29451, at *3 (3d Cir. Sep. 16, 2020) (quoting Mulholland v. Gov’t Cnty. of Berks,

706 F.3d 227, 241 (3d Cir. 2013)). “‘[O]nly the most egregious official conduct’ violates

substantive due process.” J.R. v. Lehigh Cty., 534 F. App’x 104, 108 (3d Cir. 2013) (quoting

Miller, 174 F.3d at 375 (“To generate liability, executive action must be so ill-conceived nor

malicious that it ‘shocks the conscience.’”)).

2. Procedural Due Process

To state a claim for deprivation of procedural due process rights, a plaintiff must allege:

1. the deprivation of an individual interest that is encompassed within the Fourteenth

Amendment’s protection of “life, liberty, or property,” and

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2. the procedures available did not provide “due process of law.”

See Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006) (citing Alvin v. Suzuki,

227 F.3d 107, 116 (3d Cir. 2000)). As mentioned above, there is a “fundamental liberty interest

of natural parents in the care, custody, and management of their child” so as to satisfy the first

element. See Santosky, 455 U.S. at 753 (“When the State moves to destroy weakened familial

bonds, it must provide the parents with fundamentally fair procedures.”). As to the second

element, the “fundamental requirement of due process is the opportunity to be heard at a

meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 335

(1976). Additionally, to assert a procedural due process claim against a state actor, the plaintiff

“must, at a minimum, prove recklessness or ‘gross negligence’ and in some instance may be

required to show a ‘deliberate decision to deprive’ the plaintiff of due process.’” Mulholland,

706 F.3d at 238 (quoting Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1277 (3d

Cir. 1994)). A “state may cure a procedural deprivation by providing a later procedural remedy.”

Bonilla v. City of Allentown, 359 F. Supp.3d 281, 297 (E.D. Pa. 2019) (referencing Marchionni

v. SEPTA, No. 98-6491, 2000 WL 730348, at *2 (E.D. Pa. June 7, 2000)).

D. Monell Claims

“[A] municipality cannot be held liable solely because it employs a tortfeasor -- or, in

other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). “[A] municipality can be found liable

under § 1983 only where the municipality itself causes the constitutional violation at issue.” City

of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing Monell, 436 U.S. at 694-95). “[I]t is when

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execution of a [municipality’s] policy[2] or custom,[3] whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983.” Monell, 436 U.S. at 694. The plaintiff

“must identify a custom or policy and specify what exactly that custom or policy was.”

McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009).

Under Monell, a local government entity may be liable under 42 U.S.C. § 1983 if the

plaintiff can show either:

1. an employee acted pursuant to a formal policy or a standard operating procedure;

2. the alleged violations were taken by a person with policy-making authority; or

3. an official with such authority has ratified the unconstitutional actions of a

subordinate.

See Phillis v. Harrisburg Sch. Dist., 430 F. App’x 118, 123 n.7 (3d Cir. 2011). Under the second

and third showing above, the fact that the individual “-- even a policymaking official -- has

discretion in the exercise of particular functions does not, without more, give rise to municipal

liability based on an exercise of that discretion. The official must also be responsible for

establishing final government policy respecting such activity before the municipality can be held

liable.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83 (1986). “[W]hether an official had

final policymaking authority is a question of state law.” Id. (“We hold that municipal liability

under § 1983 attaches where -- and only where -- a deliberate choice to follow a course of action

2 “A municipal policy, for purposes of Section 1983, is a statement, ordinance, regulation,

or decision officially adopted and promulgated by a government body’s officers.” Torres v. City

of Allentown, No. 07-1934, 2008 U.S. Dist. LEXIS 50522, at *10-11 (E.D. Pa. June 30, 2008)

(citing Monell, 436 U.S. at 690). A “policy cannot ordinarily be inferred from a single instance

of illegality.” Losch v. Parkesburg, 736 F.2d 903, 911 (3d Cir. 1984).

3 A custom, although not authorized by written law, has the force of law because it is such

a permanent and well-settled practice. Monell, 436 U.S. at 690.

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is made from among various alternatives by the official or officials responsible for establishing

final policy with respect to the subject matter in question.”).

Failing to train municipal employees can also be a source of liability, but “[o]nly where a

municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate

indifference’ to the rights of its inhabitants can such a shortcoming be properly thought of as a

city ‘policy or custom’ that is actionable under § 1983.” City of Canton, 489 U.S. at 388, 390.

See also Kneipp by Cusack v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996). A three-part test has

been formulated to determine whether a municipality’s failure to train or supervise amounts to

deliberate indifference. See Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999). It

must be shown:

1. municipal policymakers know that employees will confront a particular situation;

2. the situation involves a difficult choice or history of employees mishandling; and

3. the wrong choice by an employee will frequently cause deprivation of

constitutional rights.

Id. See also Connick v. Thompson, 563 U.S. 51, 62 (2011) (holding that a “pattern of

constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate

deliberate indifference for purposes of failure to train”).

E. Absolute Immunity Defense for Government Workers

Child welfare workers taking actions “on behalf of the state . . . in preparing for,

initiating, and prosecuting dependency proceedings” are entitled to absolute immunity. Ernest v.

Child & Youth Servs. of Chester Cty., 108 F.3d 486, 495 (3d Cir. 1997). This includes “actions

in petitioning and in formulating and making recommendations to the state court because those

actions are analogous to functions performed by state prosecutors.” Id. at 493. Granting

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absolute immunity to caseworkers protects social workers from “execut[ing] their duties with

one eye constantly regarding the possibility of incurring liability for their conduct” and thus,

taking away from the “public interest in protecting abused or neglected children.” Fanning v.

Montgomery Cty Children and Youth Servs., 702 F. Supp. 1184, 1187 (E.D. Pa. 1988) (internal

quotations omitted). However, absolute immunity has been used as a “rare exception” to

qualified immunity, only available in “exceptional situations where it is demonstrated that

absolute immunity is essential for the conduct of the public business.” Fanning, 702 F. Supp. at

1189 (quoting Meyers v. Contra Costa Cty. Dept. of Social Servs., 812 F.2d 1154, 1158 (9th Cir.

1987)) (internal quotations omitted).

F. Qualified Immunity Defense for Government Workers

“[S]tate officials performing discretionary functions are entitled to qualified immunity for

civil damages so long as their conduct does not violate clearly established constitutional rights of

which a reasonable person would have known.” Puricelli, 2000 WL 760522, at *7 (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Supreme Court has developed a two-step

test in determining if qualified immunity applies. See Saucier v. Katz, 533 U.S. 194, 201 (2001),

overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). A court must

consider whether:

1. “[t]aken in the light most favorable to the party asserting the injury, do the facts

alleged show the [defendant’s] conduct violated a constitutional right,” and

2. was the “right is clearly established.

See id. As to the second step, the “relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable [person] that his conduct was

unlawful in the situation he confronted.” Id. See also Plumhoff v. Rickard, 134 S. Ct. 2012, 2023

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(2014) (“[A] defendant cannot be said to have violated a clearly established right unless the

right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes

would have understood that he was violating it.”); Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083

(2011) (stating that “existing precedent must have placed the statutory or constitutional question

beyond debate”). Under qualified immunity, an official is protected from liability for “mere

mistakes in judgment.” Fanning, 702 F. Supp. at 1189 (citing Butz v. Economou, 438 U.S. 478,

507 (1978)) (internal quotations omitted).

IV. ANALYSIS

A. Count I: Violation of Substantive Due Process

Count I is brought against all Defendants and alleges a violation of Plaintiffs’ substantive

due process rights for removing Z.C. from his mother’s custody and retaining custody of Z.C.

without reasonable suspicion of abuse or imminent danger of abuse.

Initially, the Court finds that under the Complaint’s allegations Defendants Geiss, Garber,

and Doe are caseworkers employed by LCCYS, a county agency, and are state actors for

purposes of § 1983. However, the allegations are insufficient to show that the decision of these

Defendants to remove Z.C. from Lowe’s home shocked the conscience.

Child Protective Services Law imposes a duty on a county agency to investigate all

claims of child abuse. See 23 Pa.C.S. § 6368; Maldonado v. City of Phila. Dep’t of Human

Servs., No. 18-1492, 2020 U.S. Dist. LEXIS 178540, at *15 (E.D. Pa. Sep. 29, 2020) (finding

that consistent with DHS policy “to investigate every report of abuse regardless of previous

unfounded reports,” the caseworker “had a duty and objectively reasonable suspicion” to

reinvestigate the plaintiff for her child’s renewed complaints of abuse). It further provides that

“the county agency shall ensure the safety of the child and any other child in the child’s home.”

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23 Pa.C.S. § 6368(a). See also 23 Pa.C.S. § 6368(c)(3) (providing that child protective workers

may take “[a]ny action necessary to provide for the safety of the child or any other child in the

child’s household”).

Here, Defendants were advised by Z.C.’s father that Z.C. molested the father’s nine-year-

old daughter and wanted Z.C. out of his house. LCCYS also knew that Lowe, who wanted

custody of Z.C., had other minor children in her home. There are no allegations that Z.C.’s

father misrepresented his daughter’s claim of abuse or that Defendants had any reason to suspect

the same. Thus, unlike the caseworker in Croft who removed a child based on a “six-fold

hearsay report by an anonymous informant,” Defendants here relied on the report of abuse made

by Z.C.’s own father, who had been caring for Z.C. on a bi-monthly basis, that Z.C. molested

another child in his home. Accord Croft v. Westmoreland Cty. Children & Youth Servs., 103

F.3d 1123, 1127 (3d Cir. 1997) (reasoning that the caseworker was not entitled to rely “on the

unknown credibility of an anonymous informant unless she could corroborate the information

through other sources which would have reduced the chance that the informant was recklessly

relating incorrect information or had purposely distorted information”).

Further, Lowe’s contention that “[i]f, as Defendants argue, Z.C. truly posed a threat to

other children, it defies logic that LCCYS would authorize his placement in a shelter with a

number of other children,” see Resp. 5 n.1, is unavailing. Unlike Lowe’s home where there was

no safety plan in place or guaranteed supervision of Z.C., shelters are equipped to deal with the

dangers the children it houses might pose.

Because Defendants had a duty to “ensure the safety of the child and any other child in

the child’s home,” 23 Pa.C.S. § 6368(a) (emphasis added), Plaintiffs have failed to show that

their decision to remove Z.C. from Lowe’s custody was either ill-conceived or malicious. See

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Miller, 174 F.3d at 375 (“To generate liability, executive action must be so ill-conceived or

malicious that it ‘shocks the conscience.’”). Rather, the allegations show that Defendants had

“reasonable and articulable evidence” that Z.C. abused another child and that the four other

minor children in Lowe’s home were in imminent danger if Z.C. was allowed to remain in his

mother’s custody.

The fact that the abuse allegations against Z.C. were later determined to be unfounded

does not alter this conclusion. See Croft v. Westmoreland Cty. Children & Youth Servs., 103

F.3d 1123, 1126-27 (3d Cir. 1997) (“We realize there may be cases in which a child services

bureau may be justified in removing either a child or parent from the home, even where later

investigation proves no abuse occurred.”). Nor does the Court find that Defendants’ failure to

return Z.C. to the custody of Lowe for approximately two weeks after the investigation

concluded the allegations were unfounded was deliberately indifferent, let alone conscience

shocking. See Miller v. Office of Children, Youth, & Families of Allegheny Co., No. 13-315,

2013 U.S. Dist. LEXIS 149318, at *13-16 (W.D. Pa. Oct. 17, 2013) (rejecting the substantive

due process claim based on the defendants’ failure to take any affirmative steps over a period of

two months toward returning the minor to his father following the completion of the family

service plan and concluding that the defendants’ conduct did not demonstrate at least gross

negligence or arbitrariness), aff’d by 2015 U.S. App. LEXIS 4836 (3d Cir. Pa., Mar. 25, 2015).

The Complaint therefore fails to state a substantive due process claim against Defendants Geiss

and Garber.

Although these Defendants have also moved to dismiss based on immunity grounds,

absolute immunity only applies to those actions Defendants took in a prosecutorial role. See

Ernst v. Child & Youth Servs., 108 F.3d 486, 495-96 (3d Cir. 1997) (holding that child welfare

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workers “are entitled to absolute immunity for their actions on behalf of the state in preparing

for, initiating, and prosecuting dependency proceedings”). Qualified immunity appears to

protect Defendants’ other conduct alleged in the substantive due process claim. See Bayer v.

Monroe Cty. Children & Youth Servs., 577 F.3d 186, 190 (3d Cir. 2009) (holding that the

caseworkers, who did not return the children to their father for more than three weeks after the

abuse allegations were deemed unfounded, were entitled to qualified immunity for the

substantive due process claim); Fanning, 702 F. Supp. at 1189-90 (holding that qualified

immunity, not absolute immunity, may protect social workers that remove children from

situations of imminent danger and, further, in the absence of malice, case workers are protected

by qualified immunity as to the substantive due process claim that the minor was not allowed to

contact his parents after being removed from their custody). However, it would be premature to

determine which, if either, immunity applies because leave to amend the Complaint is granted.

See Guest v. Allegheny Cty., No. 20-130, 2020 U.S. Dist. LEXIS 125812, at *29 (W.D. Pa. July

17, 2020) (explaining that it would be premature to decide whether the defendants’ conduct was

investigatory or taken in a prosecutorial capacity).

“[I]f a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a

curative amendment, unless an amendment would be inequitable or futile.” Phillips, 515 F.3d at

236. It is unclear whether an amendment would be futile here and must therefore be permitted as

to Defendants Geiss and Garber. See id.

As to Defendant LCCYS, although “it is possible for a municipality to be held

independently liable for a substantive due process violation even when none of its individual

employees is liable, . . . in order for municipal liability to exist, there must still be a violation of

the plaintiff’s constitutional rights.” Sanford, 456 F.3d at 314. The claim against LCCYS

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therefore fails for the reasons set forth above. Additionally, LCCYS can only be held liable if

the harm resulted from the execution of a “policy or custom,” see Monell, 436 U.S. at 694, and

no such policy or custom is alleged in Count I. Consequently, this Count is dismissed without

prejudice as to LCCYS and with leave to amend.

Aside from naming Doe as a defendant and in Count I, the Complaint contains absolutely

no allegations pertaining to Defendant Doe. The allegations against him are therefore

insufficient to state a substantive due process claim. Generally, the court may not sua sponte

dismiss a defendant if an amendment could cure the pleadings. See Conley v. Gibson, 355 U.S.

41, 45-46 (1957) (providing that sua sponte dismissal can only be granted if “no set of facts” in

support of the claim could entitle the plaintiff to relief). However, because all claims will be

dismissed, the case may not proceed as to Defendant Doe alone. See Hindes v. FDIC, 137 F.3d

148, 156 (3d Cir. 1998) (holding that Doe defendants are deemed dismissed if all named

defendants are dismissed); Hepp v. Facebook, Inc., No. 19-4034-JMY, 2020 U.S. Dist. LEXIS

136972, at *20 n.5 (E.D. Pa. Aug. 3, 2020) (dismissing the amended complaint in its entirety,

including the claims against the Doe defendant, because all named defendants were dismissed).

Accordingly, Count I is dismissed against Doe, but with leave to amend if an amended claim is

also refiled against any named defendant.

B. Count II: Violation of Plaintiffs’ Procedural Due Process

In Count II, Plaintiffs allege Defendants Geiss, Garber, and LCCYS violated their

procedural due process rights by failing to notify Lowe of her rights, by failing to include

relevant exculpatory and explanatory information in the petition seeking custody of Z.C, which

was filed with the court, and by placing false and misleading information in said petition.

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As to Lowe’s assertion that she was not notified of her procedural due process rights, the

allegations do not support the claim. To the extent Lowe complains that she was not notified of

the emergency hearing on August 6, 2018, at which time the court gave custody of Z.C. to

LCCYS, she had no due process right to such notice. For these types of hearings, the need to

protect children outweighs the interests of the parents. See Miller, 174 F.3d at 374 (dismissing

the procedural due process claim for not including a parent in the emergency pre-deprivation

hearing because such a requirement could delay these time-sensitive hearings that are intended to

protect children who are in imminent danger of harm and “would create a burden on the state

that would not be justified by commensurate relief to the affected parents’ rights”). Further, the

court held a prompt second hearing on August 8, 2018, about which Lowe was notified.

Accordingly, had there been a due process violation, this hearing would have cured any

violation. See 42 Pa. C.S.A. § 6332(b) (providing that if the child is not released at the informal

hearing and a parent was not notified of the same, the court “shall rehear the matter without

unnecessary delay . . .”). Notably, this hearing was held within 72-hours after Z.C. was first

removed from Lowe’s custody. See 42 Pa. C.S.A. § 6332(a) (requiring a hearing, with notice, be

held within 72 hours after a child is placed in detention or shelter care). Consequently,

Defendants never refused to provide Lowe with the opportunity to be heard in a meaningful time

and manner as constitutionally required. Accordingly, the allegations show that Plaintiffs’

procedural due process rights were satisfied in this regard.

As to the remaining procedural due process claims, the Court initially finds that the

allegations in Count II are insufficient and not entirely consistent with the allegations of the

Complaint. They are insufficient to the extent Plaintiffs do not identify the allegedly exculpatory

and explanatory information missing from the petition. Also, the specific allegations in Count II

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do not identify the allegedly false or misleading information. This leads to the inconsistency

because the allegations in the Complaint prior to the individual counts, which are incorporated

therein, about false and/or misleading information make no reference to any statements

Defendants made in the petition. Rather, Plaintiffs allege that LCCYS provided false

information to the court at the shelter care hearing on August 8, 2018, that Z.C. was living with

his father and that Z.C. had informed Lowe of a prior incident of sexual abuse about which Lowe

had not informed Campbell or the authorities. Plaintiffs also allege that LCCYS misrepresented

facts to the court at the adjudicatory hearing on August 27, 2018, regarding Ms. Zeller’s “kinship

care” application.

Regardless, whether the allegedly false information was presented in the petition or

presented to the court at the hearing, Defendants Geiss and Garber would be absolutely immune.

See Hughes v. Long, 242 F.3d 121, 125 (3d Cir. 2001) (holding that social workers are entitled to

“absolute immunity for actions involving the initiation and prosecution of child custody or

dependency proceedings”); Dennis v. DeJong, 867 F. Supp. 2d 588, 629 n.194 (E.D. Pa. 2011)

(explaining that “under Pennsylvania law, both the filing of a petition and taking a child into

protective custody pursuant to court order commence a proceeding under the Juvenile Act”

(citing 42 Pa.C.S.A. § 6321)). In either situation, Defendants were performing their

prosecutorial roles. See Hughes, 242 F.3d at 125-26 (holding that child welfare workers are

entitled to absolute immunity for actions involving the initiation and prosecution of child custody

or dependency proceedings because, like prosecutors, they are advocates for the state).

Defendants are therefore absolutely immune for making any false statements or

misrepresentations in either the petition or during the hearings. See Dennis, 867 F. Supp. 2d at

629 n.194 (concluding that the employees of CYS were absolutely immune for misstatements of

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law and fact included in a memorandum to the court); Walthour v. Child & Youth Servs., 728 F.

Supp. 2d 628, 642-43 (E.D. Pa. 2010) (determining that the CYS caseworkers were absolutely

immune for making false statements to the judge and initiating the proceedings surreptitiously).

Similarly, Defendants may be absolutely immune for failing to advise the court of the kinship

care application. Geiss chose not to place Z.C. in the care of his aunt, exercising her discretion

in the course of providing the court with a recommendation. See Dennis, 867 F. Supp. 2d at 628

(concluding that a “social worker’s decision to place a child in protective custody with a foster

family rather than the child’s grandparents or a family friend was protected by absolute

immunity”). Finally, the Third Circuit Court of Appeals has rejected that procedural due process

requires child protective agencies to report exculpatory information, regardless of whether notice

was given for the hearing, because of the appeal process provided by Pennsylvania Child

Protective Services Law. See Mulholland, 706 F.3d at 239.

Count II is therefore dismissed as to Defendants Geiss and Garber. Although under the

current allegations it appears that leave to amend would be futile, in light of the inconsistencies

in Count II and the fact that absolute immunity is only applicable to actions these Defendants

took in a prosecutorial role, the Court cautiously grants Plaintiffs leave to amend. See Phillips,

515 F.3d at 236. However, Plaintiffs are advised not to replead this Count unless they can

include sufficient allegations to not only state a procedural due process violation, but to also

avoid immunity. See Puricelli v. Houston, No. 99-2982, 2000 U.S. Dist. LEXIS 7976, at *23

(E.D. Pa. June 12, 2000) (explaining that even where the social worker was not entitled to

absolute immunity, qualified immunity applied).

In the absence of a procedural due process violation, the claim necessarily fails as to

Defendant LCCYS. See Morrison v. Schultz, 270 F. App’x 111, 119 n.7 (3d Cir. 2008)

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(affirming dismissal of the municipal liability claim because the plaintiff did not suffer a

constitutional violation). Further, Count II contains no allegations of a custom or policy. See

Dennis, 953 F. Supp. 2d at 594-95 (dismissing claims against the municipality based on alleged

misrepresentations in protective custody proceedings because there were no allegations that such

misrepresentations were made by a policy-making official or made as a matter of policy or

custom). Count II is dismissed without prejudice as to LCCYS and with leave to amend.

C. Count III: Monell Claim

Count III (Monell claim) asserts that Defendant LCCYS violated Plaintiffs’ constitutional

rights through its customs or policies, as well as failing to properly supervise and train

caseworkers. Initially, the Court notes that if there is no underlying constitutional violation,

Monell liability cannot exist. See Bridges v. Scranton Sch. Dist., 644 F. App’x 172, 178 (3d Cir.

2016) (“Appellants cannot recover from the School District under Section 1983 for a failure to

train because there was no underlying constitutional violation.”). Furthermore, Plaintiffs’

allegations are nothing more than legal conclusions and boilerplate accusations, such as LCCYS

“developed and maintained policies or customs exhibiting deliberate indifference to the

constitutional rights of families. . .” and “[i]t was the policy and/or custom of Defendant LCCYS

to inadequately supervise and train its caseworkers. . . .” See, e.g. Compl. ¶¶ 54, 58. As such,

they are woefully insufficient. See Wood v. Williams, 568 F. App’x 100, 104 (3d Cir. 2014)

(affirming the district court’s dismissal of the Monell claim because the “complaint made

conclusory and general claims of failure to screen, train, or supervise employees. . .”). A

plaintiff cannot satisfy the pleading standard by alleging misconduct through “legal

conclusion[s] styled as factual allegation[s].” Kingsmill v. Szewczak, 117 F. Supp. 3d 657, 672

(E.D. Pa. 2015) (finding that the plaintiff failed to allege well-pled facts in support of his Monell

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claim with respect to a policy or custom because the plaintiff’s allegation regarding a police

officer’s prior misconduct and the City’s alleged knowledge of it was merely “a legal conclusion

styled as a factual allegation”). The Complaint must, but fails to, provide factual support for the

alleged policies and customs. See Lee v. City of Phila., No. 18-05332, 2019 U.S. Dist. LEXIS

107633, at *13, 17 (E.D. Pa. June 27, 2019) (dismissing the Monell claim because the plaintiff

“failed to plead with sufficient specificity and factual support a policy that directly caused the

alleged constitutional violations”). Such support cannot be based on the alleged failure of

LCCYS to provide Lowe with notice of the hearing because the Third Circuit Court of Appeals

has determined that “a one-time failure to do so would not subject the County to municipal

liability under § 1983 because it does not show that the failure resulted from an agency policy or

custom.” See Mulholland, 706 F.3d at 239. See also Losch, 736 F.2d at 911 (holding that a

“policy cannot ordinarily be inferred from a single instance of illegality. . .”).

Plaintiffs suggest for the first time in response to the Motion to Dismiss that “Defendants

Geiss, Garber and Doe acted as policymaking officials pursuant to Pennsylvania law and/or

through delegation of authority from the LCCYS.” Resp. 11. However, Plaintiffs did not

include this allegation in the Complaint. See Santiago v. Warminster Twp., 629 F.3d 121, 135

(3d Cir. 2010) (affirming dismissal of the Monell claim where the complaint failed to allege that

the police chief, whose alleged plan was to use excessive force, had policymaking authority).

Moreover, there are no allegations in either the Complaint or the Response that would support

such a conclusory statement. See Rees v. Office of Children & Youth, 744 F. Supp. 2d 434, 464

(W.D. Pa. 2010) (finding that the Office of Children & Youth (“OCY”) caseworker, her

supervisor, and an attorney representing the OCY at court proceedings were not decisionmakers

possessing final policy-making authority for the agency). Rather, Plaintiffs’ claim that LCCYS

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failed to adequately supervise and train its caseworkers contradicts the suggestion that these

same caseworkers are final policy-making officials, who would then be responsible for failing to

supervise and train themselves. Plaintiffs’ suggestion is further refuted by Pennsylvania law.

See 55 Pa. Code 3130.21; Dunsmore v. Chester Cty. Children & Youth Servs., No. 92-3746,

1994 U.S. Dist. LEXIS 11773, at *6 (E.D. Pa. Aug. 17, 1994) (rejecting the plaintiffs “attempt to

denominate caseworkers as final policymakers, [as] those roles, under Pennsylvania law, must be

accorded to [the] County’s executive officers, that is, the county commissioners and the director

of the agency” (citing 55 Pa. Code 3130.21)).

Finally, the Complaint fails to allege sufficient facts to impose liability on LCCYS based

on failure to supervise or to train. Plaintiffs did not allege that LCCYS had knowledge of its

employees’ unconstitutional conduct, that there was a history of misconduct, or specify the

specific area employees needed more training in. See Connick, 563 U.S. at 62 (holding that a

“pattern of constitutional violations by untrained employees is ‘ordinarily necessary’ to

demonstrate deliberate indifference for purposes of failure to train”); Carter, 181 F.3d at 357

(holding that where the policy in question concerns a failure to train or supervise municipal

employees, the plaintiff must show, inter alia, that (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”). Once again, Plaintiffs’ allegations that LCCYS

“inadequately supervise[d] and train[ed] its caseworkers,” see Compl. ¶ 58, are nothing more

than general labels and conclusions.

Count III is dismissed without prejudice and with leave to amend.

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V. CONCLUSION

Plaintiffs failed to state a claim for a substantive due process violation because

Defendants’ decision to remove Z.C. from his mother’s custody, where he resided with other

children, after receiving a complaint from Z.C.’s father that Z.C. had molested another child in

the father’s home was not conscience shocking. Further, there are insufficient allegations that

the decisions were made pursuant to a policy or custom. Count I is dismissed as to Defendants

Geiss, Garber, and LCCYS with leave to amend. Because all named Defendants are dismissed,

Count I is also dismissed as to Doe and with leave to amend.

Count II is also dismissed with leave to amend. There are insufficient allegations to

support a procedural due process claim against Defendants Geiss and Garber because Lowe

received the protections to which she was entitled. For this reason, and in the absence of

allegations that a policy or custom caused harm, Count II is also dismissed as to LCCYS.

Although, in an abundance of caution, Plaintiffs are granted leave to amend, they are advised not

to replead this claim unless they can include sufficient allegations to not only state a procedural

due process violation, but to also avoid immunity.

Finally. Count III, asserting Monell liability against LCCYS, is dismissed because

Plaintiffs fail to plead specific factual allegations of a policy or custom and, instead, make only

conclusions and boilerplate accusations. The dismissal is without prejudice and with leave to

amend.

A separate order follows.

BY THE COURT:

/s/ Joseph F. Leeson, Jr._________

JOSEPH F. LEESON, JR.

United States District Judge

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