GAJAROV v. ALLEGHENY COUNTY OFFICE OF CHILDREN, YOUTH AND FAMILIES

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KENAN GAJAROV, et al., )

)

Plaintiffs, ) 2:20-cv-01017

)

v. ) Chief Judge Mark R. Hornak

)

ALLEGHENY COUNTY OFFICE )

OF CHILDREN, YOUTH, & )

FAMILIES, et al., )

Defendants.

OPINION

Mark R. Hornak, Chief United States District Judge

This case involves an eight-month-old child who was removed from the care and custody

of his parents for eighteen (18) days after a Children’s Hospital of Pittsburgh (“Hospital”)

physician suspected child abuse when the child’s parents brought the child to the Hospital

emergency room with a fractured leg. The Hospital reported the injury to Allegheny County’s

(“County”) child welfare officials. The parents, who speak little English, regained custody about

three (3) weeks later when an independent physician provided an alternative explanation for the

child’s injury—an explanation that the parents claim they had offered to the physician and child

welfare employees all along. The parents have now sued the Hospital, the physician, the County

child welfare agency, several individual child welfare employees, and the County.

The questions for the Court at this stage of litigation are whether the Plaintiff-parents have

pled enough facts to state a plausible claim for relief against each Defendant, and, even if they did,

whether any Defendant is immune from potential liability or should otherwise be dismissed from

the case.

For the reasons that follow, the Court concludes that the Allegheny County Defendants’

Motion to Dismiss (ECF No. 28) will be granted, with limited leave to amend. The Court will hold

in abeyance further proceedings as to the Motion to Dismiss (ECF No. 30) and Motion to Strike

(ECF No. 32) filed by UPMC Defendants.

I. BACKGROUND

A. Procedural Background

On May 12, 2020, Plaintiffs filed a Complaint in the Allegheny County Court of Common

Pleas, alleging federal constitutional claims and state law tort claims against Allegheny County;

the Allegheny County Office of Children, Youth & Families (“CYF”); Mr. Marc Cherna, the

Director of the Allegheny County Department of Human Services, which oversees CYF; and Ms.

Josette Pickens and Ms. Ashley Moultrie, CYF caseworkers (collectively, “County Defendants”).

(ECF No. 1-2.) Plaintiffs also brought state law tort claims against UPMC Children’s Hospital of

Pittsburgh and Dr. Adelaide Eichman (collectively, “UPMC Defendants”). (Id.) The County

Defendants removed the case to this Court on July 7, 2020. (ECF No. 1.) In August 2020, all

parties filed motions to dismiss. (ECF Nos. 12, 14.) On August 26, 2020, Plaintiffs then filed an

Amended Complaint, which is the subject of the Defendants’ subsequent Motions and this

Opinion. (See ECF No. 18.)

In their Amended Complaint, Plaintiffs bring federal law claims against the County

Defendants for a state-created danger/substantive due process violation (Count II) and

unconstitutional policies and customs (Count III), and state law claims asserting “vicarious

liability/intentional infliction of emotional distress” (Count V). Plaintiffs bring state law claims

against the UPMC Defendants for negligent infliction of emotional distress (Count I) and

negligence (Count IV).

The County Defendants1 filed a Motion to Dismiss pursuant to Rule 12(b)(6). (ECF No.

28.) The UPMC Defendants filed a Motion to Dismiss pursuant to Rule 12(b)(6) and a Motion to

Strike Immaterial, Impertinent, and Scandalous Material from Plaintiffs’ Amended Complaint

pursuant to Rule 12(f). (ECF Nos. 30, 32.) Plaintiffs responded to all Motions. (See ECF Nos. 35,

37, 39.) The UPMC Defendants filed reply briefs. (See ECF Nos. 41, 42.)

B. Factual Background

According to the Amended Complaint, Plaintiffs Kenan Gajarov and Lala Jamalova are

from Azerbaijan and speak very little English. (ECF No. 18, ¶ 21.) On or around September 16,

2018, Plaintiffs took their eight-month-old son (“R.G.”) to the pediatrician after R.G. awoke in the

night inconsolably crying. (ECF No. 18, ¶ 11.) The pediatrician considered teething to be the

source of the pain and prescribed Tylenol. (Id. ¶ 12.) The next day Plaintiffs noticed that R.G.’s

pain had not subsided and that there might be something wrong with his leg. (Id. ¶ 13.) They

returned to the pediatrician who advised them to take R.G. to the emergency room at UPMC

Children’s Hospital. (Id. ¶ 13.)

At the Hospital, R.G. was diagnosed with a fracture of his right tibia. (Id. ¶¶ 13–14.) On or

around September 17, 2018, Defendants Allegheny County and CYF received a report of R.G.’s

injuries. (Id. ¶ 15.) CYF consulted with Defendant Dr. Adelaide Eichman, a physician at the

Children’s Advocacy Center (“CAC”) of the Hospital. (Id. ¶¶ 15–18.) Dr. Eichman reported that

the fracture was likely due to child abuse, and that R.G. “was not mobile, due to low muscle tone,

1 The County Defendants’ Motion to Dismiss was not filed on behalf of Ms. Moultrie. (See ECF No. 29, at 1.)

Accordingly, the Court’s reference to the “County Defendants” throughout the rest of this Opinion does not include

Ms. Moultrie. The record shows that the Complaint was never served on Ms. Moultrie. According to the County

Defendants’ Motion to Dismiss, Ms. Moultrie no longer works for Allegheny County and was not served. (Id. at 1

n.1.) Defense counsel informed Plaintiffs’ counsel that Ms. Moultrie is believed to be a resident of the state of Georgia.

(Id.) Because more than ninety (90) days have passed since the Amended Complaint was filed, the Court now provides

Notice to the Plaintiffs pursuant to Federal Rule of Civil Procedure 4(m) that it intends to dismiss the case without

prejudice against Ms. Moultrie, unless service is completed and proof of same is filed on the docket not later than

fourteen (14) days of the date of this Opinion. See Fed. R. Civ. P. 4(m).

and would not have been able to cause [the] tibia fracture on his own.” (Id. ¶¶ 16, 18.) Dr. Eichman

did not consult with a specialist in pediatric orthopedics. (Id. ¶ 18.) Plaintiffs instead believed that

the injury was caused by R.G.’s leg getting stuck in the slats of his crib and said so at the time. (Id.

¶¶ 22, 38.)

Plaintiffs say that CYF caseworkers failed to thoroughly investigate alternate causes of

injury, hurried Plaintiffs for an explanation for the injury, and did not accommodate Plaintiffs’

need for a translator. (Id. ¶¶ 21–22.) The day after CYF received a report of R.G.’s injury, County

Defendants secured an Emergency Custody Authorization in state court, resulting in R.G.’s

placement in a foster home. (Id. ¶ 19.) A shelter care hearing was held three (3) days later, at which

point legal and physical custody of R.G. was transferred to CYF. (Id. ¶ 25.)

Two (2) weeks later, CYF learned from Plaintiffs’ counsel that an independent pediatric

orthopedic surgeon was in the process of concluding that there were alternate explanations for the

cause of the tibia fracture, including that R.G.’s leg could have been injured by entanglement in

his crib. (Id. ¶ 26.) Upon learning of alternate explanations for R.G.’s injury, CYF transferred R.G.

back to the custody and care of Plaintiffs. (Id.) At this point, R.G. had been removed from his

parents’ care for around eighteen (18) days. (Id. ¶ 27.) Plaintiffs assert that they experienced severe

emotional and psychological distress related to R.G.’s removal, including depression, headaches,

and sleeplessness. (Id. ¶ 70.)

II. LEGAL STANDARD

A claim may be dismissed for “failure to state a claim upon which relief can be granted.”

Fed. R. Civ. P. 12(b)(6). In reviewing a Rule 12(b)(6) motion, the Court conducts a two-part

analysis and first separates the factual and legal elements of a claim. Fowler v. UPMC Shadyside,

578 F.3d 203, 210–11 (3d Cir. 2009). The Court “may disregard any legal conclusions,” id., and

then must “accept all factual allegations as true, construe the complaint in the light most favorable

to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff

may be entitled to relief.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). The

Court need not accept as true any unsupported conclusions, unsupported inferences, nor

“threadbare recitals of elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff’s factual allegations must “raise a right to relief above the speculative level”

and state a “plausible claim for relief” to survive a motion to dismiss. Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007). “The plausibility standard is not akin to a ‘probability requirement,’ but

it asks for more than the sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S.

at 678.

III. DISCUSSION

The County Defendants filed a Motion to Dismiss Plaintiffs’ claims against them pursuant

to Rule 12(b)(6). (ECF No. 28.) They make several arguments in support of this Motion. (See ECF

No. 29.) The County Defendants contend that Ms. Josette Pickens and Mr. Marc Cherna cannot be

liable because Ms. Pickens is entitled to absolute and qualified immunity and Mr. Cherna is entitled

to qualified immunity for all claims against them; that CYF should be dismissed as a Defendant

because it is not a “person” capable of being sued under § 1983; and that the claims against Mr.

Cherna should be dismissed for the additional reason that the Complaint does not establish his

personal involvement or a basis for individual liability. The County Defendants further argue that

Plaintiffs fail to state a substantive due process claim at Count II and fail to show that an

unconstitutional policy or custom existed, let alone one that harmed Plaintiffs, a showing necessary

to support the claim at Count III.

As discussed below, the Court concludes the following: (1) Ms. Pickens is not entitled to

absolute immunity; (2) CYF will be dismissed as a Defendant because Plaintiffs also sued

Allegheny County and CYF is not a distinct agency or entity amenable to being sued; (3) the

Amended Complaint sufficiently alleges Mr. Cherna’s direct involvement to support a claim

brought pursuant to 42 U.S.C. § 1983; (4) Plaintiffs plausibly state a claim at Count II; (5) Ms.

Pickens and Mr. Cherna are entitled to qualified immunity as to the otherwise viable federal claims;

and (6) Plaintiffs fail to state a claim at Count III. Because the Court is granting the dismissal of

the federal claims asserted against the County Defendants, it will hold in abeyance further action

relative to the state claims asserted as to the County Defendants, and as to the claims asserted

against UPMC Defendants, pending the exercise/non-exercise by Plaintiffs of the limited leave to

amend authorized by this Opinion.

A. Absolute immunity

State officials, sued in their individual capacities, may assert the defense of absolute

immunity in certain cases. Here, County Defendants contend that Ms. Pickens, as a CYF employee,

is entitled to absolute immunity for the actions she allegedly took in this case because she was

acting in a prosecutorial capacity. (ECF No. 29, at 6.) Plaintiffs offer no response to Ms. Pickens’s

invocation of absolute immunity.2 Nonetheless, the Court will assess the application of this

doctrine, and concludes that at this juncture, the Court cannot conclusively say that absolute

immunity completely shields Ms. Pickens from liability.

2 Should this case proceed further in this Court, Plaintiffs’ counsel is advised to “get in the game” and respond to

arguments raised by the opposing party. See Lowe v. Csenge Advisory Grp., No. 19-00980, 2020 WL 5628993, at *7

n.8 (W.D. Pa. Sept. 21, 2020) (“To put it simply: plaintiffs who fail to brief their opposition to portions of motions to

dismiss do so at the risk of having those parts of the motions to dismiss granted as uncontested.” (quoting Lada v.

Delaware Cty. Cmty. Coll., No. 08-4754, 2009 WL 3217183, at *10 (E.D. Pa. Sept. 30, 2009))). As to the Motion to

Dismiss now pending, the Court will nonetheless assess the dismissal arguments made by the County Defendants, but

the parties should not assume that the Court will do likewise should a similar situation arise down the line.

“Unlike a qualified immunity analysis, which often involves an initial inquiry into whether

the facts alleged show a violation of a constitutional right, . . . the question of absolute immunity

can be addressed as a threshold issue.” B.S. v. Somerset Cty., 704 F.3d 250, 261 n.22 (3d Cir.

2013). Public officials who perform “special functions” may be entitled to absolute immunity. Id.

at 261. The Third Circuit has recognized that the “justifications for according absolute immunity

to prosecutors sometimes apply to child welfare employees.” Id. at 262. Like prosecutors, child

welfare employees often “must make a quick decision based on perhaps incomplete information

as to whether to commence investigations and initiate proceedings against parents who may have

abused their children.” Id. at 263 (quoting Ernst v. Child & Youth Servs. of Chester Cty., 108 F.3d

486, 496 (3d Cir. 1997)). Obtaining dismissal based on absolute immunity “should not be easy

travel,” and the defendant’s burden to establish such immunity is “uniquely heavy.” Fogle v. Sokol,

957 F.3d 148, 160 (3d Cir. 2020).

Absolute immunity for child welfare employees is appropriate when the employee

formulates and presents recommendations to the court regarding a child’s custody determination.

B.S., 704 F.3d at 262–63. Not only does absolute immunity protect caseworkers’ judicial

recommendations, but it also protects the “‘gathering and evaluation of information’ to formulate

those recommendations and to prepare for judicial proceedings.” Id. at 269 (citation omitted).

However, administrative or investigative actions taken “outside the context of a judicial

proceeding” are not protected by absolute immunity. Id. at 262, 270. “[T]he question of where to

draw the line between prosecutorial and investigative functions is challenging.” Guest v. Allegheny

Cty., No. 20-130, 2020 WL 4041550, at *10 (W.D. Pa. July 17, 2020). It is appropriate for the

Court to consider the specific function served by each of the defendant’s actions, and at times to

apply absolute immunity for some actions but not for others. See Fogle, 957 F.3d at 164–65; B.S.,

704 F.3d at 267–69.

The relevant question for the Court is whether Ms. Pickens “function[ed] as the state’s

advocate when performing the action(s)” that gave rise to the violations Plaintiffs seek to redress,

or whether those claims instead arose from unprotected “administrative or investigatory actions.”

See B.S., 704 F.3d at 265 (citation and quotations omitted); see also Ernst, 108 F.3d at 497 n.7.

The Court concludes that certain of the actions Ms. Pickens allegedly took in this case were

made for the purposes of recommending a child-custody determination in a judicial proceeding

and are covered by absolute immunity. The Amended Complaint asserts that within one (1) day of

Ms. Pickens’s involvement in this case, CYF obtained an Emergency Custody Authorization from

the state court. (ECF No. 18, ¶ 19.) Three (3) days later, a shelter care hearing was held before a

judicial hearing officer. (ECF No. 18, ¶ 25.) Ms. Pickens appeared before the judicial officer at

that hearing. (See ECF No. 18-1, at 10.) Within a week, Ms. Pickens reported her findings in a

dependency petition that she prepared to submit to the state family court. (ECF No. 18, ¶ 22; ECF

No. 18-1.)3 To be sure, “[t]he key to the absolute immunity determination is not the timing of the

investigation relative to a judicial proceeding, but rather the underlying function that the

investigation serves and the role the caseworker occupies in carrying it out.” B.S., 704 F.3d at 270.

Here, the underlying function of Ms. Pickens’s conduct in the above-referenced judicial

proceedings and in her preparation of the dependency petition was to “formulat[e] and present[]

recommendations to a court.” See id. at 266. The Court concludes that such actions were therefore

prosecutorial by nature, and asserted liability for those actions is barred by absolute immunity.

3 The Court may properly consider the dependency petition because the Amended Complaint “explicitly relie[s]” upon

it. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (quotation and citation omitted).

The petition is not only referenced throughout the Amended Complaint, but it is also attached as an exhibit. (See ECF

No. 18-1.) As such, it became part of the Amended Complaint for all purposes. Fed. R. Civ. P. 10(c).

But the facts alleged in the Amended Complaint do not allow the Court to conclude at this

point that Ms. Pickens’s pre-removal actions were also prosecutorial. It is unclear from the

Amended Complaint precisely when Ms. Pickens consulted with the UPMC physician or spoke

with Plaintiffs. As a result, the Court cannot on this record and at this point decipher whether the

underlying function of those actions was prosecutorial or investigative. Because Plaintiffs’ claim

against Ms. Pickens involves those actions, it would be “premature to conclusively determine”

whether she is entitled to absolute immunity as to potential liability for those actions. See Guest,

2020 WL 4041550, at *10. The motion to dismiss based on absolute immunity grounds will be

granted to the extent that the claims against Ms. Pickens are based on her preparation of the

dependency petition and her preparation for and advocacy at the state judicial proceedings. The

application of absolute immunity is otherwise denied without prejudice.

B. Claims against Defendant CYF

Plaintiffs sued both Allegheny County and the Allegheny County CYF. The County

Defendants argue that the claims against CYF must be dismissed because CYF and Allegheny

County are a single entity. (ECF No. 29, at 15.) Once again, Plaintiffs do not respond to this

argument, though they do recognize in their Amended Complaint that CYF is a “governmental

organization operated by Allegheny County.” (See ECF No. 18, ¶ 5.)

The Third Circuit has held that a municipal agency cannot be sued alongside a municipality

when the municipal agency is merely an administrative arm of the municipality itself. See, e.g.,

Hernandez v. Borough of Palisades Park Police Dep’t, 58 F. App’x 909, 912 (3d Cir. 2003) (citing

Bonenberger v. Plymouth Township, 132 F.3d 20, 25 n.4 (3d Cir. 1997)). For purposes of § 1983

liability, a municipality and a municipal agency are a single entity. Id.

Because the Allegheny County CYF is an administrative arm of Allegheny County, the

Court will dismiss CYF as a defendant from this action. See Thompson v. Hens-Greco, No. 16-

1100, 2017 WL 4779228, at *4 (W.D. Pa. Sept. 20, 2017), report and recommendation

adopted, No. 16-1100, 2017 WL 4712714 (W.D. Pa. Oct. 18, 2017) (dismissing CYF as a

defendant because it is a department of Allegheny County, another named defendant in the case);

Kane v. Chester Cty. Dep’t of Children, Youth & Families, 10 F. Supp. 3d 671, 686 (E.D. Pa. 2014)

(dismissing CYF as a defendant because it is not a separate legal entity subject to suit). All claims

against CYF as any sort of distinct or independent entity are dismissed with prejudice.

C. Mr. Cherna’s personal involvement

The County Defendants move for the dismissal of all federal claims asserted against Mr.

Cherna on the basis that Plaintiffs have failed to sufficiently plead Mr. Cherna’s personal

involvement in the alleged wrongdoing. (ECF No. 29, at 16–18.) Plaintiffs respond that the

Amended Complaint alleges various facts as to Mr. Cherna sufficient to impose individual liability

against him. (ECF No. 36, at 15–16.) The Court agrees with Plaintiffs on this issue.

Liability in claims asserted via 42 U.S.C. § 1983 requires personal involvement in the

alleged wrongs. See Hatfield v. Berube, 714 F. App’x 99, 102 (3d Cir. 2017); Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Supervisory liability is available only if the

supervisor (1) “with deliberate indifference to the consequences, established and maintained a

policy, practice or custom which directly caused [the] constitutional harm,” or (2) “participated in

violating the plaintiff’s rights, directed others to violate them, or, as the person in charge, had

knowledge of and acquiesced in the subordinate’s unconstitutional conduct.” Dinote v. Danberg,

601 F. App’x 127, 131 (3d Cir. 2015) (citing Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316

(3d Cir. 2014), rev’d on other grounds, 575 U.S. 822 (2015)). Allegations of a defendant’s

participation or actual knowledge and acquiescence in the alleged wrongdoing must be made “with

appropriate particularity.” Rode, 845 F.2d at 1207.

Plaintiffs plead that Mr. Cherna has a history of creating policies that train CYF

caseworkers to remove children from their parents’ custody without performing competent

evaluations. (ECF No. 18, ¶ 24.) In support of this assertion, Plaintiffs cite allegations that Mr.

Cherna instructed caseworkers to spend less time investigating each suspected case of abuse, and

that he commissioned the University of Pittsburgh to perform a study to demonstrate that CYF

caseworkers required lighter caseloads to perform their work correctly. (ECF No. 36, at 15–16.)

On their own, these would not be enough to generally establish that Mr. Cherna was deliberately

indifferent to any potential constitutional harms stemming from such a policy. The alleged facts

show that Mr. Cherna, as head of the Department that runs CYF, reviewed and managed the

resources and demands of the agency. But such facts alone would not establish that Mr. Cherna

was actually aware of or had consciously disregarded a serious risk of harm in the situation at the

center of this case. See Kedra v. Schroeter, 876 F.3d 424, 437–38 (3d Cir. 2017) (discussing the

“deliberate indifference” standard in the context of substantive due process claims). Nor does the

Amended Complaint establish that a risk of harm was so obvious that it should have been known

without more. See id.

But the allegations of the Amended Complaint, which must be taken as true, sufficiently

allege Mr. Cherna’s direct involvement in this specific case. The Amended Complaint avers that

Mr. Cherna, along with other County Defendants, “had an opportunity to contact a translator to

discuss more clearly parent Plaintiffs’ explanation of probable cause of injury,” and that he gave

“specific direction” to CYF caseworkers in this case. (ECF No. 18, ¶ 38.) The Amended Complaint

further avers that Mr. Cherna specifically refused to consider any alternative cause of injury. (Id.

¶ 27.) Mr. Cherna is also alleged to have secured the Emergency Custody Authorization in this

case through the CYF caseworkers. (Id. ¶ 19.) Given these allegations as set forth in Amended

Complaint, the Court will not dismiss claims against Mr. Cherna based on a lack of personal

involvement.

D. State-created danger/substantive due process violation pursuant to 42 U.S.C.

§ 1983 (Count II)

Turning to the substantive due process/state created danger claim, the County Defendants

argue in their Motion to Dismiss that Plaintiffs fail to state a claim upon which relief can be

granted. They also assert a qualified immunity defense as to Mr. Cherna and Ms. Pickens. Because,

as discussed above, the Court will dismiss the claims against CYF, the remaining County

Defendants are Ms. Pickens, Mr. Cherna, and Allegheny County.

1. State-created danger theory

At the outset, the Court notes that Plaintiffs allege a substantive due process claim based

in part on a “state-created danger” theory of liability. In their Motion to Dismiss, the County

Defendants argue that Plaintiffs did not plead all elements of a state-created danger claim. Once

again, Plaintiffs do not respond to County Defendants on this particular point. Nonetheless, the

Court concludes that the state-created danger claim is not viable in this case because Plaintiffs

allege that state actors—not private parties—are the direct cause of their claimed harm.

“As a general matter, . . . a State’s failure to protect an individual against private violence

simply does not constitute a violation of the Due Process Clause.” DeShaney v. Winnebago Cnty.

Dep’t of Social Servs., 489 U.S. 189, 197 (1989). The Third Circuit recognizes an exception to this

general rule: the state-created danger theory of liability. See Johnson v. City of Philadelphia, 975

F.3d 394, 398–400 (3d Cir. 2020) (citing Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996)). That

theory of liability requires a plaintiff to plead four (4) elements: “first, foreseeable and fairly direct

harm; second, action marked by ‘a degree of culpability that shocks the conscience;’ third, a

relationship with the state making the plaintiff a foreseeable victim, rather than a member of the

public in general; and fourth, an affirmative use of state authority in a way that created a danger,

or made others more vulnerable than had the state not acted at all.” Id. at 400 (citing Sauers v.

Borough of Nesquehoning, 905 F.3d 711, 717 (3d Cir. 2018)).

It is unnecessary for the Court to address each element of the Plaintiffs’ state-created

danger claim because it fails from the start. The state-created danger theory does not apply when

the plaintiff is directly harmed by a state actor, rather than by a private party. See Mintz v. Upper

Mount Bethel Twp., No. 12-6719, 2013 WL 3090720, at *6–7 (E.D. Pa. June 20, 2013). In other

words, an “indispensable precondition” to a court’s application of the state-created danger theory

is “an act of ‘private violence.’” See Gray v. Univ. of Colorado Hosp. Auth., 672 F.3d 909, 927

(10th Cir. 2012) (explaining that a “private act must directly cause the [plaintiff’s] harm before

[the court can] even so much as consider the state-created danger theory”). This is so in that the

heart of such a claim is that a private actor harmed the plaintiff, but that the harm came about as a

consequence of the “state” taking steps to “create a danger.”

Here, the “most glaring defect” of the claim is that the Amended Complaint does not allege

that a private act directly caused the harm at issue. See Gray, 672 F.3d at 927. The Amended

Complaint alleges as to this claim that the immediate or direct cause of Plaintiffs’ injury was the

conduct of County Defendants, as state actors, in removing R.G. from Plaintiffs’ care. The alleged

harm stemmed directly from the removal itself, and the actions to effectuate the removal were

conducted by the County Defendants as public actors proceeding under the color of law. Because

Plaintiffs alleged that they were directly harmed by the County Defendants, as to them, this is not

a state-created danger case. See Sanford v. Stiles, 456 F.3d 298, 307 n.8 (3d Cir. 2006) (citing

Ziccardi v. City of Philadelphia, 288 F.3d 57 (3d Cir. 2002)).

2. Substantive due process claim

The Court will next proceed to analyze Plaintiffs’ substantive due process claim based on

the alleged direct actions of the County Defendants. Though this is a close call for the Court, the

Court concludes that Plaintiffs have plausibly pled facts sufficient to establish a viable substantive

due process claim.

The elements of a substantive due process claim are that: (i) defendants acted under color

of law; (ii) a protected property or liberty interest was at stake; (iii) the defendants had a duty of

care toward the plaintiff; and (iv) a deprivation within the meaning of the due process clause

occurred. See Fagan v. City of Vineland, 22 F.3d 1296, 1310 (3d Cir. 1994).

In the context of a child welfare suit, a substantive due process claim requires “decision-

making by a social worker that is so clearly arbitrary” that it “shock[s] the conscience.” B.S. v.

Somerset Cty., 704 F.3d 250, 267 (3d Cir. 2013) (quoting Miller v. City of Philadelphia, 174 F.3d

368, 376 (3d Cir. 1999)). Whether the conduct “shocks the conscience” depends on the specific

facts and circumstances of each case. See Kaucher v. Cty. of Bucks, 455 F.3d 418, 426 (3d Cir.

2006). “Where a defendant has to act with some urgency, but does not have to make split-second

decisions—such as when a social worker attempts to remove a child from the parents’ custody—

the defendant’s actions must ‘reach a level of gross negligence or arbitrariness’” that shocks the

conscience. Id. (citation omitted). A child welfare employee’s conduct shocks the conscience if

the employee lacked an “objectively reasonable suspicion of abuse.” Croft v. Westmoreland

County Children & Youth Servs., 103 F.3d 1123, 1126 (3d Cir. 1997).

Child welfare agencies may violate substantive due process rights when they fail to conduct

a “reasonable, individualized investigation” of child abuse claims prior to initiating removal

proceedings. See Bower v. Lawrence Cnty. Children & Youth Servs., 964 F. Supp. 2d 475, 484

(W.D. Pa. 2013). For example, a substantive due process violation in the child welfare context

occurred when a child was removed based on a “six-fold hearsay report” by an anonymous tip, see

Croft, 103 F.3d at 1126, and when a days-old infant was removed based on a single positive drug

test of the mother without any investigation or effort to corroborate the test, see Bower, 964 F.

Supp. at 475; Mort v. Lawrence Cty. Children & Youth Servs., No. 10-1438, 2011 WL 3862641

(W.D. Pa. Aug. 31, 2011).

On the other hand, there was no substantive due process violation when removal was based

on a report of child abuse that contained “specific, credible, contemporaneous, and mutually

consistent evidence,” including interviews with the allegedly abused child. See Mulholland v.

Gov’t Cty. of Berks, Pa., 706 F.3d 227, 243 (3d Cir. 2013); see also Brown v. Daniels, 128 F.

App’x 910, 914 (3d Cir. 2005) (concluding that a CYF caseworker’s conduct did not shock the

conscience when removal was based on a report of physical abuse, a child’s statement indicating

fear of abuse, and evidence of multiple bruises on the child’s thighs). In a recent case, the Third

Circuit concluded that Plaintiffs did not sufficiently plead a substantive due process claim when a

child welfare agency temporarily separated a two-month-old infant from his parents pending the

results of a medical investigation. See A.P. v. Medina, 779 F. App’x 840, 841–42 (3d Cir. 2019).

In that case, the CYF caseworker had completed “detailed reports and updates about her

investigation,” all of which were “[i]ntegral” to the plaintiff’s complaint. Id. at 841. Based on these

reports, the court determined that the caseworker “had a reasonable basis to continue her

investigation until genetic testing revealed [an] (extremely rare) explanation” for the child’s

injuries. Id.

But CYF investigations need not be conducted flawlessly. In B.S. v. Somerset Cty., 704

F.3d 250 (3d Cir. 2013), a caseworker’s conduct did not “shock the conscience,” even though the

caseworker may not have been “free from fault” and misstated information about the child’s health.

B.S., 704 F.3d at 268; see also Hatfield, 714 F. App’x at 105 (concluding that a CYF caseworker’s

conduct did not “shock the conscience,” even if her investigation into potential child abuse “was

not thorough”). The court determined that the removal was nonetheless constitutional because the

caseworker had reasonable suspicion of abuse based on a report from a doctor who had been

treating the child “over the course of several months.” B.S., 704 F.3d at 268.

Here, Plaintiffs argue that County Defendants’ actions “shocked the conscience” because

they removed R.G. from his parents’ care without conducting an individualized investigation.

(ECF No. 36, at 9–10.) Specifically, Plaintiffs allege that County Defendants relied solely on one

doctor’s report, and that they failed to seek a more informed medical opinion despite being on

notice of that doctor’s potentially inadequate medical advice. (ECF No. 18, ¶¶ 63–64.) Plaintiffs

aver that County Defendants conducted no other investigation, did not adequately consult

Plaintiffs, were “rude” to Plaintiffs, “interrupted” Plaintiffs, refused to listen to Plaintiffs, ignored

Plaintiffs’ attempt to provide an alternative explanation for R.G.’s injury, and while doing all of

those things, had rejected Plaintiffs’ request and apparent need for a translator to allow them to

meaningfully communicate. (ECF No. 18, ¶¶ 21, 22, 38, 18, 73.)

Though County Defendants agree that Plaintiffs have a protected liberty interest in the care

and custody of their child, County Defendants note that they have a “counterbalancing interest in

protecting children from abuse.” (See ECF No. 29, at 7 (citing Hatfield, 714 F. App’x at 105).)

County Defendants argue that “[r]emoving an infant with a fractured leg from his parents as a

temporary safety measure based on the opinion of a physician at [Children’s Hospital] that the

cause was suspected child abuse” does not amount to a substantive due process violation. (ECF

No. 29, at 8.) At this procedural stage, to prevail on their dismissal motion, the Court would have

to conclude as a matter of law that the facts as alleged could not support such a claim if proven.

Considering the particular circumstances of this case as they have been pled, the Court

concludes that the Plaintiffs have plausibly pled that Defendants’ actions failed to comply with

constitutional mandates. Plaintiffs plead enough facts to support a conclusion that the removal of

their eight-month-old baby in this situation could be found to have “shocked the conscience” and

was done without a sufficiently individualized assessment of the specific facts involved here.

The Amended Complaint alleges that CYF initiated removal after taking the following

steps: conferring with a UPMC physician, speaking with the non-English-speaking Plaintiff-

parents without a translator present, and attending a “multi-disciplinary team meeting” with the

physician and law enforcement officials as required by Pennsylvania law. Beyond this, no other

investigation is alleged to have occurred. The initial removal allegedly occurred just one (1) day

after Plaintiffs brought R.G. to the hospital, and the Amended Complaint does not refer to any

“detailed reports” made by a CYF caseworker at any time. See A.P., 779 F. App’x at 841. The

dependency petition attached to the Amended Complaint indicates that no further investigation

was conducted. (See ECF No. 18-1.) Apart from one non-treating physician’s opinion about the

cause of the fractured tibia, no other evidence is alleged to have indicated abuse. Unlike in B.S.,

where the doctor’s recommendation was based on a months-long history of care, Dr. Eichman had

never treated R.G. prior to the events at issue in this case nor was there other evidence indicating

abuse in R.G.’s medical record. See B.S., 704 F.3d at 268. Equally notable is that this case does

not involve an “extremely rare” explanation for R.G.’s injury. See id. Rather, Plaintiffs allege that

the alternative explanation for R.G.’s injury was “plausible,” “quite common,” “completely

legitimate and sensical,” “easily discoverable,” and “backed by pediatric orthopedists.” (ECF No.

18, ¶¶ 26, 37, 62.)

On top of this, County Defendants rejected the use of a translator, which allegedly resulted

in a patent and material misrepresentation of Plaintiffs’ statements to CYF. County Defendants

reported in the dependency petition that Plaintiffs were unable to provide an explanation for R.G.’s

injury. (See ECF No. 18-1.) But Plaintiffs aver that they posited all along that R.G. fractured his

leg when it twisted in his crib—the precise diagnosis that the independent physician later submitted

that prompted the return of R.G. to his parents’ care. (ECF No. 18, ¶ 22.) It is thus odd that County

Defendants nonetheless suggest that the Amended Complaint “does not describe what the parents

could have provided to Ms. Pickens that should have clearly cast sufficient doubt in her mind

sufficient to overrule Dr. Eichman’s expert medical opinion.” (ECF No. 29, at 9–10.) To the

contrary, the Amended Complaint does just that.

County Defendants also argue that given Dr. Eichman’s expert medical opinion, Plaintiffs’

statements on the matter would not have made any difference in their investigation. But that

description of CYF’s investigative duties conflicts with the regulations implementing the Child

Protective Services Law, which direct CYF to conduct an interview, “if possible,” with the “child’s

parents” and “the alleged perpetrator” of the suspected child abuse (here, the child’s parents). See

55 Pa. Code § 3490.55(d). Taking the facts alleged in the Amended Complaint as true, Plaintiffs

establish that the caseworkers’ interview of Plaintiffs—who speak little English—without a

translator could be found to be tantamount to no interview at all. (See ECF No. 18, ¶ 22.)

Given the entirety of these particular circumstances, CYF’s reliance on one doctor’s

assessment of child abuse without efforts to corroborate the report, and allegedly without a genuine

ability to communicate with the parents due to a language barrier does not as a matter of law

“supply reasonable suspicion of child endangerment or ongoing abuse” to justify immediate

removal. See Mort, 2011 WL 3862641, at *10. Plaintiffs have thus pled enough facts to state a

substantive due process claim.

3. Qualified immunity

Having established that Plaintiffs plausibly state a substantive due process claim, the Court

next turns to the Defendants’ claim of qualified immunity as to Mr. Cherna and Ms. Pickens. This

argument is well-taken.

State actors, including child welfare agency officials, see, e.g., Bayer v. Monroe Cnty.

Children & Youth Servs., 577 F.3d 186 (3d Cir. 2009), are entitled to qualified immunity as to

federal claims “unless the official violated a statutory or constitutional right that was clearly

established at the time of the challenged conduct.” See Dougherty v. Sch. Dist. of Philadelphia,

772 F.3d 979, 986 (3d Cir. 2014) (citing Reichle v. Howards, 566 U.S. 658, 664 (2012)). The

qualified immunity analysis is thus two-pronged: (1) whether the plaintiff alleged the deprivation

of a constitutional right and (2) whether the right was clearly established at the time of the conduct.

The court has discretion to decide which of the two prongs should be addressed first in light of the

circumstances in the particular case at hand. Pearson v. Callahan, 555 U.S. 223, 236 (2009). In

this specific case, the Court opts to begin with the first prong due to the fact-specific nature of this

area of law. By first deciphering the specific contours of the substantive due process right in this

case, the Court can determine more efficiently whether that right is clearly established. See id. at

236, 242; Brantley v. Wysocki, 662 F. App’x 138, 142 & n.3 (3d Cir. 2016).

As discussed above, Plaintiffs allege sufficient facts to state a plausible substantive due

process claim. As to the second part of the qualified immunity test, the right that Plaintiffs seek to

enforce was not at the time of the conduct complained of so clearly established in this specific

context so as to obviate the application of qualified immunity.

“A Government official’s conduct violates clearly established law when, at the time of the

challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable

official would have understood that what he is doing violates that right.’” Mammaro v. New Jersey

Div. of Child Prot. & Permanency, 814 F.3d 164, 169 (3d Cir. 2016), as amended (Mar. 21, 2016)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “In other words, there must be

sufficient precedent at the time of action, factually similar to the plaintiff’s allegations, to put

defendant on notice that his or her conduct is constitutionally prohibited.” Id. (quoting McLaughlin

v. Watson, 271 F.3d 566, 572 (3d Cir. 2001)).

Applying this test to Plaintiffs’ Amended Complaint, the Court concludes that there was

“no consensus of authority” that the conduct alleged violated substantive due process. See

Mammaro, 814 F.3d at 170. In Mammaro, the Third Circuit emphasized the importance of

considering the right at issue in light of the specific allegations in the complaint. Id. at 169–70.

The court explained that for the plaintiff’s case “to have legs she must show that the law was so

well established at that time a reasonable caseworker would have understood that temporarily

removing a child in those circumstances would violate substantive due process.” Id. at 170

(emphasis added). The court went on to frame the right in that case narrowly: it considered the

temporary removal of a child after the parent took the child out of state-approved housing without

permission. Id. Here, a reasonable caseworker would not have been sufficiently on notice, based

on applicable decisional law from the Supreme Court, our Court of Appeals, or a robust consensus

of the regional courts of appeal, that temporarily removing a child in the specific circumstances of

this case—based solely on one doctor’s report and a conversation with the parents who have

advanced an alternate benign explanation for the injury and despite an evident language barrier—

would violate substantive due process. Indeed, Plaintiffs fail to put forth any case or precedent to

show that County Defendants were on notice by virtue of “clearly established” applicable

precedent that their conduct was constitutionally prohibited.

The Court concludes that the right asserted here was not, for qualified immunity purposes,

clearly established based on the facts pled. Mr. Cherna and Ms. Pickens are entitled to qualified

immunity, and as a result, all federal claims against them will be dismissed with prejudice.

E. Unconstitutional policies and customs pursuant to 42 U.S.C. § 1983 (Count III)

The Court has addressed and dismissed the claims against Ms. Pickens, Mr. Cherna, and

CYF, leaving only the claims against Allegheny County.

The only way for Allegheny County to be liable for the substantive due process violation

is through what is commonly referred to as “Monell liability.” A county cannot be held liable for

its employees’ alleged misconduct based on a respondeat superior theory of liability. Monell v.

Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). A county may only be sued

under § 1983 where its own policies or customs cause constitutional injury. Id. In the context of

this case, even if a child abuse investigation is found to be inadequate, a plaintiff’s § 1983 claim

will fail against the municipality where the plaintiff does not plead that the agency “employ[ed] a

policy or ha[d] a custom of conducting desultory investigations.” Mulholland v. Gov’t Cty. of

Berks, Pa., 706 F.3d 227, 239 (3d Cir. 2013). But bald allegations of the existence of a policy are

not enough to establish the county’s liability; there must be a direct causal link between a municipal

policy or custom and the alleged constitutional deprivation. City of Canton v. Harris, 489 U.S.

378, 386 (1989). The plaintiff must “demonstrate that, through its deliberate conduct, the

municipality was the ‘moving force’ behind the injury alleged.” Bd. of Cty. Comm’rs of Bryan

Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997).

The Court first notes Fagan v. City of Vineland and its relevance to the claims against

Allegheny County. As explained above, the claims against the individual County Defendants will

be dismissed on qualified immunity grounds. In Fagan, the Third Circuit held that, in limited

cases, a municipality can be held independently liable for violating a plaintiff’s constitutional

rights, even when there is no individual liability. See Fagan v. City of Vineland, 22 F.3d 1283,

1292 (3d Cir. 1994) (“A finding of municipal liability does not depend automatically or necessarily

on the liability of any police officer.”). Fagan involved a substantive due process claim resulting

from a police pursuit, and its applicability and reach to other situations is limited. See Estate of

Thomas v. Fayette County, 194 F. Supp. 3d 358, 378–79 (W.D. Pa. 2016) (listing cases considering

the limited reach of Fagan); see also Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120,

124 n.5 (3d Cir. 2003).

This Court previously addressed in detail the “Fagan conundrum.” See Thomas, 194 F.

Supp. 3d at 380. The Court explained that “[a]t its heart, Fagan was concerned with . . . situations

in which ‘municipal policymakers, acting with deliberate indifference or even malice,

implemented a policy which dictated [the individual official’s] injury causing actions’ even

though the [individuals] themselves remain ‘ignorant of the danger created’ by their actions—and

thus free from liability under § 1983’s strict mental state requirements.” See id. In the Court’s

view, “the key to untangling Fagan is to analyze whether, in [the specific] case, any alleged

municipal policy or custom could be found to have ‘caused’ the alleged constitutional

deprivation.” Id. Here, as discussed below, Plaintiffs fail to adequately allege such causation.

The Amended Complaint states that County Defendants have a policy of obtaining

emergency custody authorizations without conducting competent investigations. This policy

allegedly results in the wrongful removal of children. Specifically, Plaintiffs frame the

unconstitutional policy as one that directs CYF to rely only on the medical investigative services

of the CAC. (ECF No. 36, at 13–14.) As a result, parents “foreseeably risk having their rights

infringed upon through emergency custody authorizations.” (See ECF No. 18, ¶ 91.)

But the Amended Complaint does not plausibly connect such a County policy to the

deprivation of Plaintiffs’ rights. The policy, as set forth in the Amended Complaint, is stated only

in a conclusory fashion and allegedly instructs CYF to rely on the medical expertise of the CAC

physicians. Plaintiffs plead that consultation with CAC physicians is Allegheny County’s “only

medical investigative tool.” (ECF No. 18, ¶ 90.) But this does not plausibly mean that it is the

County’s only investigative tool, just its only medical one. Such a policy, if it existed, does not

foreclose CYF from conducting further investigation. Other cases involving substantive due

process claims against Allegheny County or Allegheny County CYF reference more

comprehensive investigations than what allegedly occurred in this case, including adequately

interviewing the alleged perpetrators, family members, or witnesses. See, e.g., A.L. v. Eichman,

376 F. Supp. 3d 547 (W.D. Pa. 2019) (noting a CYF investigation that included reliance on a CAC

physician’s report, interviews with the parents of the allegedly abused child, and an inspection of

the parents’ home). Thus, there appears to be a plausible basis from other reported cases to

conclude that the County’s policy was one that would have been legally appropriate, and therefore

that in reality, the core of Plaintiffs’ claims is that the County did not actually implement in this

case its actual policy. And the Amended Complaint does not plausibly assert any basis to conclude

that the County in essence had a custom of ignoring its actual policy, and that it was such conduct

that caused harm here.

There are no allegations in the Amended Complaint to support a conclusion that Plaintiffs’

substantive due process rights were violated as a result of a County policy, and that such caused

the harm complained of. Plaintiffs thus fail to state a claim against Allegheny County, and the

claims against it will also be dismissed.4 But, because the Court cannot conclude on this record

that any effort to amend this claim would be futile, it will permit the Plaintiffs one further

opportunity to amend to state such a claim.

F. Remaining claims

In their Amended Complaint, Plaintiffs also bring a state law intentional infliction of

emotional distress claim against all County Defendants. (See ECF No. 18, ¶¶ 106–12.) The County

Defendants did not move to dismiss this claim. But this is a claim arising only under Pennsylvania

state law, and the Plaintiffs do not posit any independent basis to assert federal jurisdiction over

such a state law claim against those Defendants. There does not appear to be any basis to conclude

that there is diversity of citizenship as between the Plaintiffs and those Defendants, and it further

appears that there would be a high, if not insurmountable, bar to those state law claims under

Pennsylvania’s statutory provision of immunity to the County and its employees. But that need not

be conclusively resolved here and now.

The Amended Complaint also alleges two (2) state law claims against the UPMC

Defendants. There does not appear to be any independent basis to assert federal subject matter

jurisdiction against the UPMC Defendants, since there does not appear to be any diversity of

4 Because a municipality “may not be held vicariously liable under § 1983 for the actions of its agents,” Count II

will be dismissed with prejudice against Allegheny County. See Sanford v. Stiles, 456 F.3d 298, 314 (3d Cir. 2006)

(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)).

citizenship between the Plaintiffs and those Defendants. The UPMC Defendants filed a Motion to

Dismiss and a Motion to Strike.

Because the Court is dismissing the federal claims at issue in this case against all County

Defendants who have been served, it will not at this point address the UPMC Defendants’ Motion

to Dismiss or Motion to Strike, given that as to one federal claim, the Plaintiffs are being provided

with one further opportunity to amend, as noted above. See Bright v. Westmoreland Cty., 443 F.3d

276, 286 (3d Cir. 2006) (explaining that, absent extraordinary circumstances, where the claim over

which the district court has original jurisdiction is dismissed before trial, the district court should

decline to decide the pendent state claims).

IV. CONCLUSION

For the reasons stated, the County Defendants’ Motion to Dismiss at ECF No. 28 is granted

as follows.

Counts II and III will be dismissed with prejudice against Ms. Pickens, Mr. Cherna, and

CYF because it would be futile to amend given the dispositions noted above. Count II will also be

dismissed with prejudice against Allegheny County because a municipal entity cannot be

vicariously liable for the actions of its employees.

Count III will be dismissed without prejudice against Allegheny County. Rule 15(a)(2)

provides that leave to amend should be freely given “when justice so requires.” Fed. R. Civ. P.

15(a)(2). In the interests of justice, and to the extent that Plaintiffs believe that amendment would

not be futile, Plaintiffs have twenty-one (21) days from the date of this Opinion to file a Second

Amended Complaint consistent with this Opinion as to claims against the County at Count III.

Should Plaintiffs not file a Second Amended Complaint by the specified date, the dismissal shall

then convert to a dismissal with prejudice without further Order or notice.

Plaintiffs must serve Defendant Moultrie with the summons and Amended Complaint

within fourteen (14) days of the date of this Opinion, and also file a verification of such service on

the docket within that time period. Should Plaintiffs fail to do so, all claims against her will be

considered as of that date to be dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m)

without further Order or notice.

If no federal claim survives against any of the County Defendants, the Court will decline

to assert supplemental jurisdiction over the balance of the claims asserted, which would be solely

state law claims against the UPMC Defendants and one state law claim against the County

Defendants, and would dismiss those claims without prejudice to their assertion in state court.

Therefore, the Court will for the time being hold disposition of the pending Motions to Dismiss

and to Strike filed by the UPMC Defendants in abeyance pending further procedural developments

in this case.

An appropriate Order will issue.

s/ Mark R. Hornak

Mark R. Hornak

Chief United States District Judge

Dated: January 15, 2021