Webb v. Columbia County

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JESSE LEE WEBB, JR., No. 4:22-CV-00292

Plaintiff, (Chief Judge Brann)

v.

COLUMBIA COUNTY, et al.,

Defendants.

MEMORANDUM OPINION

DECEMBER 27, 2023

This case has gone from dubious to frivolous due to counsel’s failure to create

a factual record. As a result, no dispute of fact exists as to many of this Plaintiff’s

most critical allegations, and this case can be resolved with minimal discussion of

its merits.

I. BACKGROUND

In February 2022, Jesse Webb filed a five-count complaint against Columbia

County, Columbia County Children and Youth Services (“CYS”), April M. Miller,

and Brittany Boyer (collectively, “Defendants”).1 In October 2022, this Court

granted Defendants’ partial motion to dismiss as to three counts of the complaint.2

Webb then filed an amended complaint in October 2022, and Defendants filed an

1 Doc. 1.

answer.3 Webb’s amended complaint alleges two causes of action against all

Defendants.4 Count I seeks damages for a “State Created Harm/Substantive Due

Process Violation” under 42 U.S.C. § 1983.5 Count II seeks damages for

“Unconstitutional Policies and Customs” under 42 U.S.C. § 1983.6 Both claims

allege an unspecified Fourteenth Amendment violation.7

Discovery concluded in July 2023.8 Defendants then moved for summary

judgment and filed a Statement of Facts (“SOF”) in compliance with Local Rule

56.1 in September 2023.9 Webb filed an Answer to the Statement of Facts (“ASOF”)

in October 2023.10

The motion is now ripe for disposition; for the reasons below, it is granted.

II. DISCUSSION

A. Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate

where “the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.”11 Material facts are those “that

could alter the outcome” of the litigation, “and disputes are ‘genuine’ if evidence

3 Docs. 13, 14.

4 Doc. 13.

5 Id. at 8.

6 Id. at 10.

7 Id. ¶¶53, 61.

8 Doc. 21.

9 Docs. 22, 24.

10 Doc. 26.

11 Fed. R. Civ. P. 56(a).

exists from which a rational person could conclude that the position of the person

with the burden of proof on the disputed issue is correct.”12 A defendant “meets this

standard when there is an absence of evidence that rationally supports the plaintiff’s

case.”13 Conversely, to survive summary judgment, a plaintiff must “point to

admissible evidence that would be sufficient to show all elements of a prima facie

case under applicable substantive law.”14

In assessing “whether there is evidence upon which a jury can properly

proceed to find a verdict for the [nonmoving] party,”15 the Court “must view the

facts and evidence presented on the motion in the light most favorable to the

nonmoving party.”16 Moreover, “[i]f a party fails to properly support an assertion of

fact or fails to properly address another party’s assertion of fact as required by Rule

56(c),” the Court may “consider the fact undisputed for purposes of the motion.”17

Finally, although “the court need consider only the cited materials, . . . it may

consider other materials in the record.”18

12 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010).

13 Clark v. Mod. Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993).

14 Id.

15 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (quoting Schuylkill & Dauphin Imp.

Co. v. Munson, 81 U.S. 442, 448 (1871)).

16 Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020).

17 Fed. R. Civ. P. 56(e)(2); see also Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613-14 (3d

Cir. 2018).

18 Fed. R. Civ. P. 56(c)(3).

B. Materials in the Record

Before moving to the undisputed facts, however, the Court must clarify which

materials it may rely upon at summary judgment. Webb’s reliance upon his amended

complaint is misplaced at the summary judgment stage, and because of his

noncompliance with Rule 56.1, the allegations in Defendants’ SOF are deemed

admitted. Webb creates no record himself, and his objections to Miller and Boyer’s

affidavits are meritless. The Court therefore relies upon the facts in Defendants’ SOF

along with the documents provided by Defendants, which include Webb’s

Deposition, Miller and Boyer’s Affidavits, and orders issued by the state court

overseeing Webb’s child custody case.

1. Webb’s Reliance on the Amended Complaint

Webb appears to largely rely on his amended complaint to craft his ASOF, as

many of his denials seem to mirror its allegations.19 He also relies on his amended

complaint to assert facts in his briefings.20 But this document cannot create a genuine

issue of fact. “A plaintiff cannot resist a properly supported motion for summary

judgment merely by restating the allegations of his complaint, but must point to

concrete evidence in the record that supports each and every essential element of his

case.”21

19 ASOF, Doc. 26 ¶¶20, 25, 27, 30, 33, 35, 37.

20 See Doc. 27 at 4, 10-12, 15, 19, 21.

21 Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995). See also 10A Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 2721 (4th ed. 2023) (“The importance

of going beyond the pleadings on a summary-judgment motion is emphasized by the

2. Local Rule 56.1

Defendants’ Reply Brief solely raises the issue of Webb’s noncompliance

with Middle District of Pennsylvania Local Rule 56.1.22 Middle District of

Pennsylvania Local Rule 56.1 governs summary judgment and is designed to

“structure a party’s summary judgment legal and factual theory into a format that

permits and facilitates the court’s direct and accurate consideration of the motion.”23

The Rule provides:

A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall

be accompanied by a separate, short and concise statement of the

material facts, in numbered paragraphs, as to which the moving party

contends there is no genuine issue to be tried. The papers opposing a

motion for summary judgment shall include a separate, short and

concise statement of the material facts, responding to the numbered

paragraphs set forth in the statement required in the foregoing

paragraph, as to which it is contended that there exists a genuine issue

to be tried. Statements of material facts in support of, or in opposition

to, a motion shall include references to the parts of the record that

support the statements. All material facts set forth in the statement

required to be served by the moving party will be deemed to be admitted

unless controverted by the statement required to be served by the

opposing party.24

requirement in 56(c)(1) that a party either asserting that a fact cannot be or that it is genuinely

disputed “must” support that assertion by citation to materials in the record . . . . As a

consequence, the formal issues framed by the pleadings are not controlling on a motion for

summary judgment; the court must consider the issues presented by the other materials offered

by the parties on the motion to determine whether the Rule 56 request should be granted.”).

22 Doc. 28.

23 Savidge v. Donahoe, No. 3:08-CV-2123, 2011 U.S. Dist. LEXIS 89894, at *5 (M.D. Pa. Aug.

12, 2011) (quoting Hartshorn v. Throop Borough, No. 3:07-CV-01333, 2009 U.S. Dist. LEXIS

22372, at *3 (M.D. Pa. Mar. 19, 2009)).

24 M.D. Pa. L.R. 56.1.

It is obvious that Webb failed to comply with Local Rule 56.1, as his ASOF

contains no record citations at all. As noted, Webb accompanies some of his denials

with explanations which seem to mirror parts of his amended complaint.25 Other

denials state that “the Complaint and other documents speak for themselves.”26 And

still other denials refer to “information, reports and recommendations of the

Defendant,” or other vague collections of documents, without citation.27

“[T]he proper sanction for violating Rule 56.1 is within the district court’s

discretion.”28 Where nonmovants fail to support denials with record citations, a

common sanction is to deem these allegations admitted.29 Indeed, the failure to point

to support in the record itself is often a tacit admission that the record does not create

a dispute of material fact. That appears to be the case here. Webb’s vague denials

reflect no genuine effort to point to specific facts in the record creating an issue of

material fact. Nor do Webb’s briefings contain citations to any record materials,

which might otherwise assist the Court in locating the basis for Webb’s denials in

the record notwithstanding Webb’s noncompliance.

By way of example, Webb’s ASOF maintains that “the Court’s orders were

all based upon the information, reports and recommendations of the Defendant CYS

25 ASOF, Doc. 26 ¶¶20, 25, 27, 30, 33, 35, 37.

26 Id. ¶¶ 3.

27 Id. ¶¶15, 16, 17, 19, 30.

28 Hickley v. Merritt-Scully, No. 4:18-cv-01793, 2021 U.S. Dist. LEXIS 46550, at *2 (M.D. Pa.

Mar. 12, 2021) (Schwab, M.J.) (citing Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 614 (3d

Cir. 2018)).

29 See Smith v. Addy, 343 F.App’x 806, 808 (3d Cir. 2009).

and its named and unnamed individual officers, agents and representatives.”30 Yet,

Webb fails to clarify what information, reports and recommendations CYS provided

to the state court. So even if this Court forgave Webb’s noncompliance with Rule

56.1, there is no way to locate which information in the record supports his factual

claims.

This is illustrative of the larger issue that Webb has not created any record to

support his denials. According to Defendants, Webb’s counsel never deposed him,

or took any other deposition.31 And despite the exchange of written discovery, Webb

provides no such documents. The complete record available to the Court consists of

what is provided by the Defendants. So if this Court did not deem the SOF admitted,

the current record would have nearly the same effect.

3. Defendants’ Affidavits

In his ASOF, Webb objects to assertions made in Miller and Boyer’s affidavits

several times due to their purportedly “self-serving” nature. The Court recognizes

that “because an affiant is not subject to cross-examination, the judge deciding the

motion must exercise considerable care in assigning weight to the affidavits

30 ASOF, Doc. 26 ¶15.

31 Doc. 28 at 1, 7 (“The discovery deadline was July 3, 2023. The parties exchanged written

discovery, but the only deposition taken was the defense deposition of the plaintiff . . . . Given

that only Webb’s deposition was taken in discovery, it is not surprising that Webb has no

statements from the named defendants or from his state parole officer to create an issue of

material fact that would justify a jury trial.”); Doc. 24-1 at 17 (following Attorney Geiger’s

deposition of Webb, Attorney Katsock states that he has no questions to ask).

presented.”32 Yet, while “more reliable forms of proof should be used in place of or

to supplement an affidavit when that is possible and appropriate,”33 a court is obliged

to take account of the entire setting of the case on a Rule 56 motion, including

affidavits prepared for the motion that meet the standard prescribed in Federal Rule

of Civil Procedure 56(c)(4).34 This Rule simply requires that the averments in the

affidavit are “made on personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant or declarant is competent to testify on the matters

stated.”35

So long as an otherwise admissible summary judgment affidavit complies

with these requirements, and the record indicates no specific reason to doubt its

credibility,36 this Court cannot refuse to credit that affidavit solely because it is “self-

32 10B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (4th ed.

2023).

33 Id.

34 10A Wright & Miller § 2721; U.S. v. U.S. Gypsum Co., 340 U.S. 76 (1950); Manetas v. Int’l

Petroleum Carriers, Inc., 541 F.2d 48 (3d Cir. 1976).

35 56(c)(4).

36 Of course, an affidavit may be excluded under the “sham-affidavit doctrine” “[w]hen a

nonmovant’s affidavit contradicts earlier deposition testimony without a satisfactory or

plausible explanation.” Daubert v. NRA Grp., LLC, 861 F.3d 382, 392 (3d Cir. 2017). See also

Williams v. Pa. State Univ., No. 4:20-CV-00298, 2023 U.S. Dist. LEXIS 183074, at *36 &

n.219 (M.D. Pa. Oct. 11, 2023) (excluding portions of self-serving deposition testimony, as

some portions baselessly disputed the authenticity of documents, while others were not

sufficient for a rational factfinder to credit Plaintiff’s testimony when juxtaposed with other

evidence); Johnson v. MetLife Bank, N.A., 883 F.Supp. 2d 542, 549 (E.D. Pa. 2012) (“[T]he

issue is not whether Plaintiff has relied solely on his own testimony to challenge the Motions,

but whether Plaintiff’s testimony . . . is sufficient for a rational factfinder to credit Plaintiff’s

testimony, despite its self-serving nature.”).

serving.”37 “[T]he testimony of a litigant will almost always be self-serving since

few litigants will knowingly volunteer statements that are prejudicial to their case.

However, that has never meant that a litigant’s evidence must be categorically

rejected by the fact finder.”38 Webb’s boilerplate denials of Miller and Boyer’s

affidavits because they are “self-serving” are therefore ineffective.39

C. Undisputed Facts

With this analysis setting the framework for the Court’s review, I now turn to

the facts established by the record.

Jesse Webb is a resident of Columbia County and the natural parent of C.P.40

Around 2017, Webb was engaged in the sale of crack cocaine and heroin and stored

these drugs in his home.41 After pleading guilty to these felonies, Webb was

incarcerated for three years.42 In late 2017, while Webb was incarcerated, his ex-

wife Victoria Perry gave birth to C.P.43 CYS first became involved with C.P. after

receiving a referral from a pediatrician at Geisinger.44 In early 2018, Perry was

37 See, e.g., Buie v. Quad/Graphics, Inc., 366 F.3d 496 (7th Cir. 2004) (reversing trial court and

holding that discounting “self-serving” affidavit was abuse of discretion).

38 Lupyan v. Corinthian Colleges Inc., 761 F.3d 314, 321 n.2 (3d Cir. 2012).

39 Doc. 25 ¶¶10-13, 18, 23, 26, 28, 31-32, 34, 38-41 (containing the following language: “The

Plaintiff objects to the consideration of the Defendants’ submission of self-serving declarations

and/or affidavits by the Defendants off alleged facts, which are both unknown to the Plaintiff

and disputed.”).

40 Amended Complaint, Doc. 13 ¶ 3; Answer, Doc. 14 ¶3.

41 SOF, Doc. 24 ¶5; ASOF, Doc. 26 ¶5.

42 SOF, Doc. 24 ¶4; ASOF, Doc. 26 ¶4.

43 SOF, Doc. 24 ¶9; ASOF, Doc. 26 ¶9.

44 SOF, Doc. 24 ¶11; Doc. 24-1 at 28, Miller Affidavit ¶8.

deemed unfit to care for C.P., and CYS assumed custody over the child until April

2021, when it granted custody to Webb.45

When Webb was released from prison on January 9, 2020, C.P. was two years

old.46 Webb then petitioned the Columbia County Court of Common Pleas for

custody of C.P.47 The state court issued Orders arranging a plan for Webb’s custody

under CYS’ supervision.48 Pursuant to this arrangement, CYS conducted

investigations and made reports to other governmental agencies about Webb,

including the Pennsylvania Board of Probation and Parole.49 Webb chiefly

complains of two conditions imposed upon him; one concerning drug tests, and one

concerning travel restrictions.

1. Drug Tests

The state court’s orders authorized CYS to conduct random drug screens on

Webb, and required that Webb “inform [CYS] of any change in address or phone

number within 24 hours.”50 CYS also periodically asked Webb to wear drug patches,

which was also authorized by the state court’s supervision order.51 While Webb

45 Doc. 24-1 at 35-36, 39-40 (mother’s drug use found to pose threat to child), 42-44 (order

temporarily placing child within CYS’ custody), 47, 51, 55, 59, 64, 68, 72, 76, 80 (orders

continuing CYS’ custody of child), 84 (order returning child to Webb’s custody).

46 SOF, Doc. 24 ¶¶6, 14; ASOF, Doc. 26 ¶¶6, 14.

47 SOF, Doc. 24 ¶15; ASOF, Doc. 26 ¶15.

48 Id.

49 Amended Complaint, Doc. 13 ¶13; Answer, Doc. 14 ¶13.

50 SOF, Doc. 24 ¶17; ASOF, Doc. 24 ¶17; Doc. 24-1 at 50.

51 SOF, Doc. 24 ¶19; ASOF, Doc. 24 ¶19.

testified that CYS “made him” wear the drug patches, he never refused to wear them

when asked.52

The state court orders did not require CYS to identify any reason for a test,

but CYS, according to Miller, had received confidential reports that Webb may have

been using drugs.53 Webb denies the existence of any such report with more generic,

unsubstantiated, boilerplate denials,54 but again, nothing in the record supports these

denials.

Webb passed every drug test, yet CYS maintained an open case as to C.P.

until 2023.55 In addition to CYS, the Board of Probation also conducted random drug

tests on Webb.56 As of Webb’s deposition, the Board of Probation continued to

require Webb to take drug tests.57 Webb believes that an allegedly stricter level of

supervision imposed on him by CYS caseworkers was due to his race.58

52 SOF, Doc. 24 ¶20; Doc. 24-1 at 14. In his ASOF, Webb maintains that his consent to wear the

patch was invalid, as he “fear[ed] that such refusal would be used as another pretext to deny

his custody and/or visitation with [C.P.]” ASOF, Doc. 26 ¶20. But this is not reflected in

Webb’s testimony, so this allegation is unsupported by the record. However, Webb’s testimony

does establish that he believed wearing the patch to be mandatory.

53 SOF, Doc. 24 ¶18; Doc. 24-1 at 29, Miller Affidavit ¶18.

54 ASOF, Doc. 26 ¶18.

55 Amended Complaint, Doc. 13 ¶16; Answer, Doc. 14 ¶16; Doc. 24-1 at 11-12, Webb Deposition

at 38, 42. This excludes a positive drug test which was excused due to a fentanyl prescription.

Id.

56 SOF, Doc. 24 ¶21; ASOF, Doc. 26 ¶21.

57 Doc. 24-1 at 16, Webb Deposition at 60.

58 SOF, Doc. 24 ¶¶ 27-29; Doc. 24-1 at 8, Webb Deposition at 29.

2. Travel Restrictions

The state court also required Webb to notify CYS of any change of address

within 24 hours.59 Webb owed the same obligation to his probation officer.60 Since

Webb’s release from prison in January 2020, he only left Pennsylvania on one

occasion to visit family in North Carolina for about three days.61 According to April

Miller’s affidavit, CYS never restricted Webb’s travel; it only insisted that Webb

provide it with an address for his North Carolina trip when he left the state.62 Miller

avers that CYS later learned that the address Webb provided did not exist.63

3. Searches

Webb also complains that CYS conducted unlawful searches of his

possessions. Although he claimed in his amended complaint that an unidentified

CYS caseworker and a police officer had searched his house,64 Webb clarified in his

deposition that the house across the street from his was the house searched.65 In his

deposition, Webb seems unsure of who was involved in the search.66 Miller and

Boyer both state in their affidavits that they were not involved.67

59 SOF, Doc. 24 ¶36; ASOF, Doc. 26 ¶36.

60 Doc. 24-1 at 17, Webb Deposition at 63.

61 Id. at 11, Webb Deposition at 41.

62 Doc. 24-1 ¶35; Doc. 24-1 at 31, Miller Affidavit ¶28.

63 Id.

64 SOF, Doc. 24 ¶24; ASOF, Doc. 26 ¶24; Amended Complaint, Doc. 13 ¶21.

65 SOF, Doc. 24 ¶25; ASOF, Doc. 26 ¶25; Doc. 24-1 at 10, Webb Deposition at 34-36.

66 Webb first indicates that Boyer may have been involved, then indicates that he cannot recall

who was involved. Doc. 24-1 at 10, 14, Webb Deposition at 34-36 (“Brittany, yes. She came

there to the house that wasn’t my residence,”), 52 (Q. Okay. Which Children and Youth

workers? A. I don’t recall the names at that time.”).

67 SOF, Doc. 24 ¶26; Doc. 24-1 at 30, Miller Affidavit ¶26; Doc. 24-1 at 32, Boyer Affidavit ¶4.

4. Individual Defendants

In addition to CYS, Webb brings suit against two individual defendants. April

Miller was the Director of CYS, while Brittany Boyer was a caseworker for CYS.68

Were the Court to consider Webb’s deposition, it would do little to flesh out

his claims against Miller. Webb believes that Miller may have testified in some of

his court proceedings, but he is not sure, and he does not recall what she testified

about, which proceedings she testified at, or when.69 Webb testifies that at some

point, he reached out to talk to Miller to discuss his case.70 But he cannot recall if he

ever personally spoke to Miller.71 Webb also states that while he has no personal

knowledge that Miller required him to wear a drug patch, two unidentified CYS

employees, Sarah and Felicia, told him that the drug patch requirement “came from

April Miller.”72 He first testified that Miller is racist,73 then testified that he does not

personally know whether she is racist.74

Boyer had previously been involved in dependency cases involving two of

Webb’s other children.75 Boyer states in her affidavit that she was not involved in

C.P.’s case, however, and nothing in the record creates a dispute as to this fact.76

68 SOF, Doc. 24 ¶¶1-3; ASOF, Doc. 26 ¶¶1-2.

69 Doc. 24-1 at 15-16, Webb Deposition at 57-58.

70 Id. at 6, Webb Deposition at 19.

71 Id., Webb Deposition at 20.

72 Id.

73 Id., Webb Deposition at 20-21.

74 Id., Webb Deposition at 21.

75 SOF, Doc. 24 ¶10; Doc. 24-1 at 32, Boyer Affidavit ¶2.

76 Id.

Webb does not even testify that Boyer was involved in C.P.’s case. When asked

about Boyer, Webb initially testified that he “can’t recall her at the moment.”77 He

subsequently explained that he was suing her for “violating [his] rights,” which

included performing drug tests—but he does not indicate that Boyer performed those

drug tests.78 Webb did not appear to recall whether Boyer told him anything he

considered to be racist, yet maintained: “[in] my personal opinion, all of it had to be

with me just being black.”79 Nor could Webb recall whether Boyer ever testified at

any of his court hearings.80

77 Doc. 24-1 at 9, Webb Deposition at 33.

78 Id. at 10, Webb Deposition at 35.

79 Id. at 9-10, Webb Deposition at 33-34.

80 Id. at 16, Webb Deposition at 58.

5. CYS Policies and Training

The parties agree that all of Miller and Boyer’s actions were consistent with

CYS policies.81 But Webb is not aware of any other people who were discriminated

against by CYS because they were black.82 He does not know what kind of training

caseworkers generally, or Boyer specifically, received at CYS.83 And he states that

while he has read some of CYS and Columbia County’s policies on the Internet, he

did not save them, nor does he recall them.84 Undisputed by any of this testimony,

Miller avers that CYS caseworkers receive regular training on Pennsylvania child

protective services laws, and their work is reviewed by supervisors to ensure

compliance with CPS laws.85

D. Analysis

One word describes Webb’s case: vague. As it has developed, this is

principally a case decided on the summary judgment standard itself. Given the

undisputed facts, resolving the merits requires modest analysis.

1. Claims against CYS and Columbia County

Section 1983 provides a procedural vehicle for private plaintiffs to enforce the

Constitution when they suffer violations under color of state law.86 The first hurdle

81 SOF, Doc. 24 ¶42; ASOF, Doc. 26 ¶42.

82 Id. at 17, Webb Deposition at 64.

83 Id. at 11, Webb Deposition at 40-41.

84 Doc. 24-1 at 16-17, Webb Deposition at 61-62.

85 Doc. 24-1 at 30, Miller Affidavit ¶21.

86 Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002).

to a Section 1983 claim against a municipality is to show that “the constitutional

deprivation was caused by a person acting under state law.”87 As set out in Monell

v. New York Department of Social Services, a municipal body is a “person” who can

be liable under Section 1983.88 But a municipality can only be liable for its own

actions; it cannot be vicariously liable for the actions of its employees. A municipal

body acts through “a policy statement, ordinance, regulation, or decision officially

adopted and promulgated by that body’s officers.”89 This includes unconstitutional

practices which are “so permanent and well settled as to constitute a custom or usage

with the force of law,”90 as well as acts by the municipal body itself,91 and a failure

to train demonstrating “deliberate indifference” towards the constitutional violations

caused by its employees.92

That standard makes disposing of Webb’s claims quite simple—since the

record does not reflect any policy at all. Webb states in his brief in opposition to

summary judgment that CYS’ inadequate supervision enables constitutional

violations through a “code of silence,” creating the practice of “conduct[ing] a

minimal investigation designed to exonerate the caseworker involved [in

87 Phillips v. Cnty of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008).

88 436 U.S. 658, 690 (1978).

89 Id.

90 City of St. Louis v. Prapotnik, 485 U.S. 112, 117 (1988).

91 See Watson v. Abington Twp., 478 F.3d 144, 155 (3d Cir. 2007) (quoting Bielvicz v. Dubinon,

915 F.2d 845, 850 (3d Cir. 1990)).

92 Reitz v. Cnty. of Bucks, 125 F.3d 139, 145 (3d Cir. 1997).

constitutional violations] rather than discover the true facts of the incident.”93 This

conclusory allegation is completely bereft of any record support or citation and can

be dismissed out-of-hand. Nothing in the record supports any pattern of violations,

and nothing in the record reflects upon CYS policy at all. At most a few vague

allegations relate to CYS caseworkers’ handling of Webb’s case. One case is not a

policy, a practice, or a pattern of violations.

Webb explains the failure to cite any evidence by stating: “[t]he moving

defendants are in exclusive control and possession of all records, courses and

documents concerning the training of CYS caseworkers when filing handling child

custody and dependency matters. The only thing the public, and the plaintiff, know

is what is provided to them by the government in discovery.”94 But Webb has not

stated that he requested such records but was unable to obtain them—his argument

is solely that these records are in the defendants’ control. The Court does not follow

this argument. Discovery is the mechanism through which counsel obtain such

documents. Attorneys make discovery requests to build a record. Their opponents

do not have a duty to provide unrequested documents. Webb seems to confuse a

motion to dismiss, which is judged based on the allegations in a complaint, with a

motion for summary judgment, for which discovery is complete.

93 Doc. 27 at 11.

94 Id. at 12.

2. Claims against Miller and Boyer

In order to be liable for a Section 1983 violation, an individual defendant must

have been personally involved in the deprivation of the plaintiff’s rights.95 Webb’s

claims against Miller and Boyer are much like his claims against CYS and Columbia

County; the record does not tie them to the alleged conduct.

Boyer’s statement that she was not even involved in Webb’s case is

unrebutted. Even if the Court found a dispute of fact over Boyer’s involvement in

the supposed illegal search, it would be irrelevant to showing her personal

involvement in any restriction upon Webb’s substantive due process rights.96

Miller’s involvement in this matter is also minimal. For purposes of Section

1983, a supervisor’s personal involvement may be shown by establishing either that

they (1) “with deliberate indifference to the consequences, established and

maintained a policy, practice or custom which directly caused [the] constitutional

harm,” or (2) “if he or she participated in violating the plaintiff’s rights, directed

95 Robinson v. City of Pittsburgh, 120 F.3d 1286, 194 (3d Cir. 1997).

96 This conduct could only support liability if it actually caused the alleged constitutional

violation, and the record does not substantiate how this search restricted Webb’s parental or

travel rights. Even given such causation, Webb’s case would be suspect. See Armendariz v.

Penman, 75 F.3d 1311 (9th Cir. 1996) (“Because explicit textual provisions of constitutional

protection [the Fourth and Fifth Amendments] cover the areas of conduct challenged by the

plaintiffs, substantive due process provides the plaintiffs no additional relief.”); Ramirez v.

Butte-Silver Bow Cnty, 298 F.3d 1022, 1029 (9th Cir. 2022) (quoting Graham v. Connor, 490

U.S. 386, 394-95 (1989)) (“[P]laintiffs cannot ‘double up’ constitutional claims . . . [w]here a

claim can be analyzed under ‘an explicit textual source’ of rights in the Constitution, a court

may not also assess the claim under another, ‘more generalized,’ source.”).

others to violate them, or, as the person in charge, had knowledge of and acquiesced”

in the subordinate’s unconstitutional conduct.”97

Webb’s allegations do not establish Miller’s involvement in the decisions to

require his drug testing or ensure that he notify CYS of any change of residence. “It

is not sufficient . . . for a plaintiff to allege that an individual had constructive

knowledge of his or her subordinates’ unconstitutional conduct simply by virtue of

his or her supervisory position,”98 or to allege liability via respondeat superior.99

Nothing in the record creates any dispute as to Miller’s allegation that she was not

personally involved in Webb’s case.100

3. Substantive Due Process

It is clear that no official act, policy, or practice ties CYS or Columbia County

to the alleged acts, and Webb has failed to create an issue of fact as to Boyer and

Miller’s personal involvement. Nevertheless, the Court will briefly explain that no

constitutional violation has been alleged either.

97 A.M. ex rel. J.N.K. v. Luzerne Cnty Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004).

98 McQueen v. Phila. Hous. Auth., No. 02-8941, 2003 U.S. Dist. LEXIS 19844, at *10 (E.D. Pa.

Sept. 26, 2003) (citing Regan v. Twp. of Lower Merion, No.98-2945, 1999 U.S. Dist. LEXIS

17219, at *15 (E.D. Pa. Oct. 28, 1999)); see also Robinson, 120 F.3d at 1295 (although the

plaintiff complained to assistant chief of police about harassment, there was no evidence that

chief of police had actual knowledge of harassment).

99 See, e.g., Rizzo v. Goode, 423 U.S. 362, 368 (1976).

100 See Doc. 24-1 at 2, Miller Affidavit ¶3. The only thing that comes close is Webb’s allegation

that Miller might have testified in a court hearing, or his allegation that the drug patch

requirement “came from Miller,” and Webb cites to neither of these deposition statements in

his ASOF. As the discussion below indicates, however, even this testimony could not prevent

summary judgment because no constitutional violation has been alleged.

The Due Process Clause of the Fourteenth Amendment to the United States

Constitution provides that “[n]o State shall . . . deprive any person of life, liberty, or

property, without due process of law.”101 This language incorporates both

“procedural” and “substantive” components.102 The Due Process Clause’s

substantive component includes both the liberty interest in familial integrity, and a

qualified right to travel.

As to familial integrity, the United States Court of Appeals for the Third

Circuit has recognized “the constitutionally protected liberty interests that parents

have in the custody, care and management of their children.”103 But because courts

“must balance the fundamental liberty interests of the family unit with the

compelling interests of the state in protecting children from abuse,” this right is “not

absolute.”104 “A child welfare agency abridges an individual’s substantive due

process rights when its actions ‘exceed both negligence and deliberate indifference,

and reach a level of gross negligence or arbitrariness that indeed “shocks the

conscience.”’”105 Negligence is insufficient to support such a claim.106 A violation

101 U.S. Const. amend. xiv.

102 Cnty of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1988).

103 Croft v. Westmoreland Cnty Children & Youth Servs., 103 F.3d 1123, 1125.

104 Id. at 1125.

105 Mulholland v. Gov’t Cnty of Berks, 706 F.3d 227, 241 (3d Cir. 2013) (quoting Miller v. City of

Phila., 174 F.3d 368, 375-76 (3d Cir. 1999)).

106 See Daniels v. Williams, 474 U.S. 327, 332-34 (1986).

only results “if the child is removed without ‘an objectively reasonable suspicion of

abuse,’ based on the information available at the time.”107

Webb’s briefings assert the following argument to connect CYS’ drug tests to

an interference with his parental rights:

Due to the actions of the Defendants, Mr. Webb has stated of-record

that he has been prejudiced in legal and public forums and forced to

overcome erroneous credibility issues in the eyes of the courts and the

community. This error has directly caused and laid the very foundation

for minor child’s separation from his Father under false pretenses. He

testified that he has been subjected to an enormous amount of stress and

anxiety, due to false drug allegations and the illegal search. In the same

way, it has affected by his reputation among certain members of the

community.108

Webb’s citation to non-existent record materials and testimony is concerning,

as is his reference to facts never produced to this Court. Webb’s alleged prejudice in

legal forums, credibility issues in courts and the community, separation from C.P.

under false pretenses, and resulting stress and anxiety cannot be found anywhere in

the record, and therefore there is no need to reach the questionable merits of whether

such a scenario even could raise a substantive due process claim.109

107 Id. at 241 (quoting Croft, 103 F.3d at 1126).

108 Doc. 27 at 8.

109 Causing a parent’s custody of his child to be revoked through fabricated claims has been

recognized to constitute “an abusive, malicious, and oppressive use of governmental power”

that shocks the conscience and gives rise to a substantive due process claim. See Morris v.

Dearborne, 181 F.3d 657, 668 (5th Cir. 1999). Even taking these allegations at face value,

Webb’s situation is too vague to apply this theory. Because it does not create an issue of fact

that Defendants’ conduct is responsible for “setting in motion a series of acts by others which

the actor knows or reasonably should know would cause others to inflict the constitutional

injury.” Burnsworth v. PC Lab., 364 F.App’x 772, 775 (3d Cir. 2010) (unpublished).

Webb’s brief also states that “his custody of the minor child was limited,

removed, denied and suspended by the CYS and other defendants.”110 This

allegation, too, appears out of thin air—no citation is provided, and Webb himself

does not even testify to it.

Finally, Webb’s deposition testimony reflects his complaint that continuing to

carry out the drug tests despite his positive results violates his rights. The burden on

Webb’s parental rights here is unclear at best. Rather than revoking custody of C.P.,

all CYS did was impose conditions of supervision upon Webb’s care of C.P., which

included his drug tests. “The right to family integrity clearly does not include a

constitutional right to be free from child abuse investigations.”111 The right to family

integrity then almost certainly does not extend to a right to be free from drug testing,

which poses a far more attenuated burden, if any burden at all, upon parental

rights.112 Nor could any reasonable jury infer negligence, and certainly not gross

negligence, from the drug test requirements.113

110 Doc. 27 at 3.

111 Watterson v. Page, 987 F.2d 1, 8 (1st Cir. 1993) (citing Stanley v. Illinois, 405 U.S. 645, 745

(1972)); Croft, 103 F.3d at 1125 (citing Watterson for this proposition).

112 Nor does Webb alert the Court to any case stating the contrary, or indeed any examples from

case law at all.

113 CYS initially revoked custody from C.P.’s mother because of her drug use, and subsequently

awarded custody to Webb after he was released from prison for selling crack cocaine and

heroin from his residence, despite confidential reports suggested that he may have been using

drugs. Under these conditions, awarding custody with the court-approved condition of drug

testing, even when the drug testing is prolonged for two years, is not only a far cry from

conscience-shocking; it is generous.

As to the right of travel, being charged with a crime “necessarily qualif[ies]

[the] right” to interstate travel.114 This Court addressed the right to travel in its

previous Memorandum Opinion. Little has changed regarding Webb’s amended

complaint, so I reproduce my analysis at length:

Parolees “do not enjoy ‘the absolute liberty to which every citizen is

entitled, but only . . . conditional liberty properly dependent on

observance of special [parole] restrictions.’” Therefore, “despite the

fundamental nature of this right [to interstate travel], there nonetheless

are situations in which a State may prevent a citizen from leaving. Most

obvious is the case in which a person has been convicted of a crime.”

Typically, violations of the right to travel are charged against the State

or the United States, or the State or federal agency supervising the

parolee . . . . Webb has not sued the Board or the Columbia County

agency responsible for his supervision. Nor has he alleged that

Defendants had any control or influence over the Board’s or the county

agency’s actions. His allegation that the Board acted as a result of

Defendants’ communications to the Board about his drug use is

conclusory at best. Even if Defendants had sufficient influence to cause

the Board to restrict Webb’s out-of-state travel, the restriction is

justified. The Court notes that Webb was convicted of manufacture or

possession of controlled substances and conspiracy to flee

apprehension, among other crimes. His 2015 flight conviction alone

serves to show that the Board’s restriction on his out-of-state travel

[does] not violate his limited right to travel.115

On this record and with Defendants’ SOF deemed admitted, little has changed.

The record shows that CYS required Webb to inform it of his change of address

when he traveled. It does not reflect that CYS restricted his right of travel in any

way. Regardless, Webb’s allegations remain vague as to what influence CYS

114 Jones v. Helms, 452 U.S. 412, 420-21 (1981).

115 Doc. 11 at 9.

exercised over the Parole Board, he does not know what was communicated to his

parole officer or by whom,116 and any right to travel claim is likely meritless for the

same reason.117

III. CONCLUSION

Making a record is much more than making allegations. It requires lawyers to

diligently lay the groundwork for each claim to be supported by evidence. To ensure

that only cases premised upon reliable evidence proceed to trial, this price must be

paid for allegations to become facts. Here, the undisputed facts establish no

involvement by any defendant in Webb’s alleged constitutional injuries, nor do they

establish any injury at all. Accordingly, neither of Webb’s claims survive, and

Defendants’ motion for summary judgment is granted in full.

116 Webb allegedly received a text message from his probation officer explaining that because of

what a CYS caseworker had told the probation officer, Webb was not allowed to travel. Doc.

24-1 at 8, 12, Webb Deposition at 26, 44. Webb further alleges that the information contained

some misrepresentation or omitted some information. But he is “not sure” what that

misrepresentation or omission is; his probation officer allegedly “wouldn’t tell [him] all the

details” aside from the fact that he “wasn’t cooperating.” Id. Webb may later testify that the lie

was that he faked his drug tests; it is not clear from the deposition whether this lie was what

resulted in the travel restriction, or whether it was something else. Id. at 8, 10, Webb Deposition

at 28, 37. Nor does Webb know who at CYS contacted the probation officer. Id. at 13, Webb

Deposition at 46.

117 Since this Court’s last memorandum opinion, an additional, unpublished opinion from our

Court of Appeals also rejected a similar right to travel claim by a parolee. See United States v.

Fattah, No. 23-2396, 2023 U.S. App. LEXIS 24767, at *2 (3d Cir. Sep. 19, 2023) (per curiam).

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge