# FRANCIS v. SMITH

> District Court, E.D. Pennsylvania · May 14, 2024

URL: https://www.frixlaw.com/law-library/cases/10666726

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** May 14, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10666726

## How later opinions describe it (automated extraction)

- finding judges who presided over protection from abuse, custody, and divorce proceedings were entitled to immunity because plaintiff did not show an absence of jurisdiction and immunity applied despite allegations of bad faith and conspiracy
- holding that mere negligence in training cannot form basis of § 1983 liability
- holding that official’s mere negligence is not actionable under § 1983 because “the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LLOYD FRANCIS, :
Plaintiff, :
:
v. : CIVIL ACTION NO. 24-CV-0914
:
AMBER TIFFANY SMITH, et al., :
Defendants. :

MEMORANDUM
BARTLE, J. MAY 14 , 2024
Pro se Plaintiff Lloyd Francis asserts constitutional claims against various defendants
after he was served with a protection from abuse order, criminally charged with harassment and
stalking offenses, and had his parental rights to his minor child terminated. Francis seeks leave
to proceed in forma pauperis. For the following reasons, the Court will grant Francis leave to
proceed in forma pauperis1 and dismiss his Complaint upon screening pursuant to 28 U.S.C.
§ 1915(e).
I. FACTUAL ALLEGATIONS2
Francis names the following Defendants in the Complaint: (1) Amber Tiffany Smith, the
mother of his minor child; (2) Delta Community Support, a non-profit organization that employs

1 The Court initially denied Francis leave to proceed in forma pauperis because his
motion failed to provide sufficient financial information to allow the Court to determine whether
he qualified. (See ECF No. 4.) Instead of filing an amended motion to proceed in forma
pauperis, as the Court directed him to do in its March 14, 2024 Order, Francis filed two Motions
to Reconsider the initial denial. (See ECF Nos. 5, 6.) Upon review of the Motions to
Reconsider, the Court concludes that Francis qualifies for in forma pauperis status because it
appears that he is incapable of paying the fees to commence this civil action.

2 The facts set forth in this Memorandum are taken from Francis’s Complaint. The Court
adopts the pagination supplied by the CM/ECF docketing system.
Smith as a social worker; (3) Joelle Shanesy, Esquire, Smith’s private legal counsel; (4) Karen
Fortune, Esquire, an attorney for the City of Philadelphia; (5) Janee Johnson, a social worker
employed by the City of Philadelphia; and (6) Judge Tiffany Palmer, a Philadelphia Court of
Common Pleas Judge. (Compl. at 1-2.) Francis alleges that he and Smith are the parents of a
minor child3 and that Smith, despite an alleged “history of violence” and twice being reported to

the “Philadelphia Childline for Violent Child Abuse,” was able to secure full custody of the
child.4 (Id. at 2-3, 7, 8.) Francis further alleges that shortly after he attempted to secure sole
custody of the child in June of 2022, Defendants “collusively engaged[d]” in “actions to allow
Amber Smith to legally harass and abuse” him. (Id. at 5.) Such actions included concealing
from Francis the ChildLine report against Smith, presumably so he could not use it against her in
the custody proceedings; aiding Smith in securing a protection from abuse (“PFA”) order against
Francis in the Montgomery Court of Common Pleas; and assisting Smith with her filing of
“malicious, frivolous, and vexations” litigation against Francis to secure custody of their shared
minor child. (Id. at 2.) Francis states that Smith “ensured” that Francis was charged with
stalking and harassment.5 (Id. at 5.)

3 In his Complaint, Francis included the unredacted names of minor children, in violation
of Federal Rule of Civil Procedure 5.2(a) and Local Rule 5.1.3. The Complaint will therefore be
restricted to Case Participants View Only. If Francis intends to file additional documents with
the Court, he should not include the names of any minor children in his filings and should refer
to any minor children, if necessary, by initials only. See Fed. R. Civ. P. 5.2(a).

4 The Court understands Francis to be referring to a Pennsylvania state resource,
ChildLine, which is a “mandated statewide child protective services program designed to accept
child abuse referrals and general child well-being concerns.” See
https://www.dhs.pa.gov/KeepKidsSafe/Resources/Pages/ChildLine.aspx (last visited May 10,
2024).

5 The public record reflects that on July 27, 2022, Francis was charged with stalking,
harassment, possession of an instrument of crime, and disorderly conduct. See Commonwealth v.
Francis, CP-46-CR-0005970-2022 (C.P. Montgomery). Many of the charges appear to have
Although his fifteen-page Complaint is replete with legal conclusions, Francis describes
each named Defendants’ role in his alleged constitutional harm. He states that Judge Palmer
“interfere[ed]” with his custody and criminal proceedings. (Id. at 13.) For example, Judge
Palmer issued a five-month continuance of his custody case “to aid Smith” in avoiding criminal
charges in connection with the ChildLine report lodged against her.6 (Id.) Francis alleges that

Shanesy, who represented Smith in the custody proceedings, “filed vexations and misleading
petitions” in the Philadelphia Family Court on behalf of her client, including a petition to hold
Francis in contempt of a custody order. (Id. at 5-7.) Shanesy also introduced “unfounded”
evidence of domestic abuse and the criminal proceedings pending against Francis during the
custody proceedings, which according to Francis was “a clear violation” of the Federal Rules of
Civil Procedure. (Id. at 6.)
Frances states that Fortune is legal counsel for the City of Philadelphia’s Department of
Human Services. (Id. at 1.) Fortune allegedly sent Francis “misleading and egregiously false
correspondence” about child abuse investigations of Smith. (Id. at 8.) In particular, Fortune was

aware that Smith had been reported to the ChildLine for “violent child abuse for a second time,”
but nevertheless allegedly represented to Francis that no report had been received and no
investigation had taken place. (Id. at 10.) Francis also alleges that when he petitioned for a PFA
against Smith, Fortune was involved in the denial of that PFA. (Id. at 8-10.) Francis states that

been nolle prossed, with the exception of the disorderly conduct charge, to which Francis pled
guilty and received a sentence of one year of probation. See id.

6 The Court understands Francis to be contending that Judge Palmer’s continuance
extended the child custody matter beyond Pennsylvania’s two-year statute of limitations for
bringing child abuse charges against Smith. See 42 Pa. Cons. Stat. § 5552(a) (stating that
offenses, including one for endangering the welfare of a child pursuant to 42 Pa. Cons. Stat.
§ 4304, must be commenced within two years after it is committed); see also Spanier v. Dir.
Dauphin Cnty. Prob. Servs., 981 F.3d 213, 218 (3d Cir. 2020).
he received an “endorsement letter” by a Family Court Master to obtain the PFA against Smith;
however, the endorsement needed to be signed by Child Protective Services. (Id. at 9-10.)
Fortune was the “correspondent” from Child Protective Services who denied the endorsement for
the PFA. (Id. at 10.) Johnson is alleged to be a “Social Work Supervisor” with the City of

Philadelphia’s Department of Human Services. (Id. at 2.) Francis alleges that Johnson received
the second child abuse report about Smith but “negligently” failed to notify Francis of the report
even though she had Francis’s contact information. (Id. at 11.) Francis allegedly left Johnson a
voicemail asking about the investigation and report, but Johnson never returned his phone call.
(Id. at 12.) Francis states that Johnson did not enter the ChildLine report into the ChildLine
database in order to prevent Smith from being suspended, terminated, or investigated by law
enforcement. (Id.)
Francis does not allege many facts about Delta Community except that it employed Smith
as a social worker. (Id. at 5). Without factual support, Francis alleges that Delta Community
“misled” child protective services investigators and prosecutors and aided in “obstructing” the

child abuse investigation of Smith. (Id. at 11.) Finally, Francis alleges that Smith has a history
of violence and has committed fraud in connection with childcare assistance and welfare. (Id. at
3-4.) Smith allegedly “made numerous false statements to law enforcement and social services”
in order to “gain leverage in custody proceedings” and to secure criminal charges against
Francis. (Id. at 4.)
Based on these allegations, Francis asserts due process claims against Defendants under
the Fourteenth Amendment.7 (Id. at 3.) For relief, he requests money damages. (Id.) He also

7 Francis’s passing references to violations of his First, Second, Fourth and Sixth
Amendment rights (see Compl. at 3) are not sufficient to raise any such claims. See Campbell v.
LVNV Finding, LLC and Resurgent Capital Servs., No. 21-5388, 2022 WL 6172286, at *7 (E.D.
requests that the Defendants be terminated from their employment and that they be criminally
indicted.8 (Id.)
II. STANDARD OF REVIEW
The Court grants Francis leave to proceed in forma pauperis because it appears that he is

incapable of paying the fees to commence this civil action. Accordingly, 28 U.S.C.
§ 1915(e)(2)(B)(ii) requires the Court to dismiss the Complaint if it fails to state a claim.
Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same
standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see
Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to
determine whether the complaint contains “sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotations omitted). “‘At this early stage of the litigation,’ ‘[the Court will] accept the facts
alleged in [the pro se] complaint as true,’ ‘draw[] all reasonable inferences in [the plaintiff’s]
favor,’ and ‘ask only whether [that] complaint, liberally construed, . . . contains facts sufficient to

state a plausible [] claim.’” Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021) (quoting

Pa. Oct. 7, 2022) (stating that a “‘passing reference’ to jurisprudential precepts without more
does not bring that issue before the Court in that it provides no basis for a ruling one way or the
other.”) (citing Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26
F.3d 375, 398 (3d Cir. 1994)); Alexis v. Sessions, No. 18-2099, 2018 WL 5077899, at *2 n.1
(D.N.J. Oct. 18, 2018). In any event, the facts alleged do not support a plausible claim under any
of these constitutional amendments.

8 The Court has no authority to order that a defendant be terminated from their
employment as relief in a § 1983 civil rights case. See Hall v. Carny, Civ. A. No. 22-4094, 2023
WL 187569, at *1 (E.D. Pa. Jan. 13, 2023) (dismissing with prejudice the request that defendant
prison official be terminated from his employment). The Court also has no authority to order
that a defendant be criminally charged. See Lewis v. Jindal, 368 F. App’x 613, 614 (5th Cir.
2010) (“It is well-settled that the decision whether to file criminal charges against an individual
lies within the prosecutor’s discretion, and private citizens do not have a constitutional right to
compel criminal prosecution.”) (citations omitted).
Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)). Conclusory allegations do not
suffice. Iqbal, 556 U.S. at 678. As Francis is proceeding pro se, the Court construes his
allegations liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (citing Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).

III. DISCUSSION
The Court understands Francis to assert due process claims against Defendants in
connection with his criminal charges, the PFA filed against him, and the termination of his
parental rights. The vehicle by which federal constitutional claims may be brought in federal
court is 42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of
a right secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.
42, 48 (1988). As set forth below, Francis has not stated plausible § 1983 claims against any
Defendant.
A. Claims against Judge Tiffany Palmer

Francis’s claims against Judge Palmer are barred by absolute judicial immunity. Judges
are entitled to absolute immunity from civil rights claims that are based on acts or omissions
taken in their judicial capacity, so long as they do not act in the complete absence of all
jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 355-56 (1978); Harvey v. Loftus, 505 F.
App’x 87, 90 (3d Cir. 2012) (per curiam). “A judge will not be deprived of immunity because
the action [s]he took was in error, was done maliciously, or was in excess of his authority.”
Capogrosso v. The Supreme Ct. of N.J., 588 F.3d 180, 184 (3d Cir. 2009) (citations omitted).
Moreover, “[i]mmunity will not be forfeited because a judge has committed ‘grave procedural
errors,’ or because a judge has conducted a proceeding in an ‘informal and ex parte’ manner’,
. . . [or] because the judge’s action is ‘unfair’ or controversial.” Gallas v. Supreme Ct. of Pa.,
211 F.3d 760, 769 (3d Cir. 2000) (citations omitted). A judge will be subject to liability only
“when [s]he has acted ‘in the clear absence of all jurisdiction.’” Id. (quoting Stump, 435 U.S. at
356-57). “Generally, . . . ‘where a court has some subject matter jurisdiction, there is sufficient

jurisdiction for immunity purposes.’” Figueroa v. Blackburn, 208 F.3d 435, 443-44 (3d Cir.
2000) (quoting Barnes v. Winchell, 105 F.3d 1111, 1122 (6th Cir. 1997)).
Francis’s claims against Judge Palmer arise from her involvement in Francis’s custody
proceedings. Francis alleges that Judge Palmer conspired to interfere with the custody of his
minor child by encouraging criminal charges be filed and by issuing a continuance in the custody
matter so that the two-year statute of limitations on Smith’s alleged abuse investigation could
lapse. Even assuming these allegations were true, Judge Palmer presided over his custody matter
and thus had jurisdiction to do so as a Judge of the Court of Common Pleas. Francis has not
alleged any facts that would support a plausible inference that Judge Palmer acted in the absence
of all jurisdiction. See Lee v. Gallina Mecca, No. 22-2871, 2023 WL 5814783, at *4 (3d Cir.

Sept. 8, 2023) (“But even accepting Lee’s allegations as true, judicial acts that appear to be
unfair, malicious, or ex parte are not stripped of their judicial immunity); Mikhail v. Kahn, 991
F. Supp. 2d 596, 660 (E.D. Pa. 2014) (finding judges who presided over protection from abuse,
custody, and divorce proceedings were entitled to immunity because plaintiff did not show an
absence of jurisdiction and immunity applied despite allegations of bad faith and conspiracy),
aff’d, 572 F. App’x 68 (3d Cir. 2014); see also Mireles v. Waco, 502 U.S. 9, 11 (1991)
(“[J]udicial immunity is not overcome by allegations of bad faith or malice.”); Stump, 435 U.S.
at 356 (“A judge will not be deprived of immunity because the action he took was in error, was
done maliciously, or was in excess of his authority.”); Dennis v. Sparks, 449 U.S. 24, 29 (1980)
(holding that immunity applies even if a judge conspired with litigants).
B. Claims against Delta Community Support
Francis names as a Defendant Delta Community Support,9 alleging that it employs Smith

despite Smith having been the subject of child abuse reports. (Compl. at 5.) Francis also alleges,
without any explanation or factual support, that Delta Community “misled” child protective
services investigators and prosecutors and aided in “obstructing” the child abuse investigation of
Smith. (Id. at 11.) As noted above, to state a plausible § 1983 claim, a plaintiff must allege a
constitutional deprivation committed by a person acting under color of state law.” West, 487
U.S. at 48 (emphasis added). Whether a defendant is acting under color of state law – i.e.,
whether the defendant is a state actor – depends on whether there is “ such a close nexus between
the State and the challenged action’ that seemingly private behavior may be fairly treated as that
of the State itself.” Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005) (internal quotations
omitted). “ To answer that question, [the United States Court of Appeals for the Third Circuit

has] outlined three broad tests generated by Supreme Court jurisprudence to determine whether
state action exists: (1) whether the private entity has exercised powers that are traditionally the
exclusive prerogative of the state; (2) whether the private party has acted with the help of or in
concert with state officials; and (3) whether the state has so far insinuated itself into a position of
interdependence with the acting party that it must be recognized as a joint participant in the
challenged activity.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (internal quotations and
alteration omitted).

9 Delta Community is a non-profit organization that provides community-based support
services. See Delta Community Supports, https://deltaweb.org/about-delta/ (last visited May 10,
2024).
Francis has not included any facts about Delta Community’s specific involvement in his
alleged constitutional harm aside from the allegation that it is Smith’s employer. Francis has not
alleged any facts to suggest that Delta exercises powers that are traditionally attributed to the
state. Nor has he alleged any other facts to support an inference that Delta Community is a state

actor under the tests developed by the Third Circuit in Kach. See, e.g., Gray v. Zook, No. 20-
1366, 2020 WL 13729665, at *5 (M.D. Pa. Sept. 17, 2020) (dismissing claim against non-profit
agency that provides services to domestic violence victims where the plaintiff alleged no facts to
suggest that it was a state actor); Johnson v. Bridge, No. 14-884, 2014 WL 2711795, at *1 (E.D.
Mo. June 16, 2014) (dismissing § 1983 claims against non-profit organization where the plaintiff
alleged only that the non-profit receives state funds). Accordingly, Francis has failed to allege
that that Delta Community is a state actor subject to liability under § 1983.
Even if Francis had sufficiently pled state action, the claims against Delta Community
would nevertheless be dismissed. Non-profit organizations, like municipalities, will not be liable
under § 1983 for the acts of its employees under a theory of respondeat superior. Non-profit

organizations can only be liable under § 1983 when an official policy or custom of the non-profit
organization causes the deprivation of constitutional rights. See Kirby v. Visionquest Nat’l, Ltd.,
No. 15-6208, 2016 WL 1623439, at *3 (E.D. Pa. Apr. 25, 2016) (applying standard for
municipal liability from Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978), to
§ 1983 claims asserted against a non-profit company in the business of managing troubled youths
that was appointed as an in loco parentis guardian for the minor plaintiff ). Francis alleges no
facts suggesting that his alleged constitutional harms were caused by a Delta Community policy
or custom. Accordingly, Francis’s § 1983 claims against Delta Community must be dismissed.
C. Claims against Joelle Shanesy, Esquire
Joelle Shanesy, Esquire, the privately retained attorney for Smith in the custody
proceedings, is also not a state actor based on the facts, as pled. “Attorneys performing their
traditional functions will not be considered state actors solely on the basis of their position as

officers of the court.” Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999);
see also See Gannaway v. Stroumbakis, 842 F. App’x 725, 730 (3d Cir. 2021) (per curiam)
(noting that “[a] privately retained attorney clearly does not act under color of state law, and . . .
that ‘no color of state law attache[s] to the functions of court-appointed counsel.”) (citation
omitted). This rule applies equally to court-appointed or privately retained attorneys in family
court matters, including matters involving child custody or protection from abuse. See, e.g.,
Shallow v. Rogers, 201 F. App’x 901, 904 (3d Cir. 2006) (per curiam) (affirming district court’s
dismissal of § 1983 claims against wife’s attorney in custody dispute because attorney was not
acting under color of state law); Heffley v. Steele, 826 F. App’x 227, 231 (3d Cir. 2020) (per
curiam) (same); Ludwig v. Berks Cnty., Pa., 313 F. App’x 479, 482-83 (3d Cir. 2008) (per

curiam) (concluding that husband’s attorney in custody proceedings was not a state actor and
thus not be liable in mother’s § 1983 action); Broadnax v. City of Philadelphia, No. 23-1533,
2023 WL 3097218, at *3 (E.D. Pa. Apr. 26, 2023) (“Courts have overwhelmingly found that the
filing of a petition for a protection from abuse order does not render a private individual a state
actor.”).
Francis alleges that Shanesy filed “vexatious and misleading” petitions on behalf of
Smith, introduced “unfounded” evidence of domestic abuse in the custody proceedings, and
petitioned the family court to hold Francis in contempt of a custody order. (Compl. at 5-7.) The
allegations describe Shanesy performing traditional legal-related functions in connection with
her representation of Smith. Nothing in the Complaint raises a plausible inference that there was
“such a close nexus between the State and the challenged action[s]” to convert Shanesy’s private
representation of Smith in the custody proceedings into state action for purposes of liability
under § 1983. See Mikhail v. Kahn, 572 F. App’x 68, 71 (3d Cir. 2014) (per curiam) (finding

attorneys who represented wife in protection from abuse, custody, and divorce proceedings were
not state actors subject to liability under § 1983). Accordingly, Francis’s § 1983 claims against
Shanesy will be dismissed.
D. Claims against Karen Fortune, Esquire
Francis also names as a Defendant Karen Fortune, Esquire, who is an attorney for the
City of Philadelphia. Courts have repeatedly held that a municipal attorney like Fortune does not
act under color of state law simply by virtue of acting as an attorney or solicitor on behalf of a
municipal entity. See, e.g., Angelico, 184 F.3d at 277; Anderson v. Perhacs, No. 11-289, 2013
WL 1336124, at *4 (W.D. Pa. Mar. 29, 2013). However, “there are three exceptional
circumstances in which an attorney may become a state actor: (1) by acting as a state official,

(2) by conspiring with a state official to deprive a person of his or her constitutional rights, or
(3) by engaging in some action that is by its nature, chargeable to the state.” Willis v. Carroll
Twp., No. 07-949, 2008 WL 644762, at *5 (M.D. Pa. Mar. 5, 2008) (internal citations and
quotation marks omitted). In contrast, where the attorney is engaged in the advising a municipal
client, drafting legal documents, or otherwise engaged in litigation or equivalent legal activities,
he or she will generally not be subject to liability as a state actor. Angelico, 184 F.3d at 276-78;
Willis, 2008 WL 644762, at *5-6. In short, “[w]hen a municipality’s attorney goes beyond the
traditional attorney-client relationship, she may become a state actor.” Belkowski v. Kruczek,
No. 09-1549, 2010 WL 1433099, at *3 (W.D. Pa. Apr. 7, 2010) (citing Frompovicz v. Twp. of S.
Mannheim, No. 06-2120, 2007 WL 2908292, at *8 (M.D. Pa. Oct. 4, 2007) (holding that a
plaintiff states a viable § 1983 claim against an attorney who goes beyond making
recommendations and decides official government policies)).
Francis alleges that Fortune sent misleading correspondence denying that there was an

abuse investigation of Smith despite being notified of the ChildLine report against Smith.
(Compl. at 8-10.) In addition, Francis alleges that Fortune was responsible for denying the PFA
against Smith that been endorsed by a Court Master. (Id. at 9-10.) None of these allegations
supports a plausible inference that Fortune’s role extended beyond the traditional attorney-client
relationship. Nor do the allegations support a plausible inference that Fortune engaged in any
conspiracy as the Complaint contains no facts about a conspiratorial agreement between Fortune
and any state actor. See Mikhail, 572 F. App’x at 71-72 (affirming dismissal of § 1983 claims
against attorney in family court matters where “allegations of conspiracy were conclusory and
insufficient to suggest that a conspiratorial agreement existed between the private actors and the
other defendants”). Accordingly, Francis’s § 1983 claims against Fortune will also be dismissed.

E. Claims Against Tiffany Amber Smith
Francis also alleges claims against Smith, who allegedly secured a PFA against Francis
and received full custody of their shared minor child. Although Francis alleges that Smith is a
social worker “in the public sector and in foster care services,” none of the events or alleged
constitutional harm relates to her role as a social worker. Rather, the allegations against Smith
relate entirely to her involvement in custody proceedings over their shared minor child and her
securing a PFA and criminal charges against Francis. In this context, Smith is a private
individual and not a state actor subject to liability under § 1983. See Humphrey v. Pa. Ct. of
Common Pleas of Phila., 462 F. Supp. 3d 532, 536 (E.D. Pa. 2020) (dismissing § 1983 claims
against mother who gained custody of child in lawsuit brought by father); Mikhail, 991 F. Supp.
2d at 667-68 (dismissing § 1983 claims against wife and her attorneys “because they were not
state actors”). Merely resorting to the courts and being on the winning side of a lawsuit, like the
custody dispute described by Francis, does not make one a state actor for purposes of § 1983.

See Dennis, 449 U.S. at 28. Accordingly, all claims against Smith must also be dismissed.
F. Claims against Social Worker Janee Johnson
Francis’s claims against Johnson, an employee of the City of Philadelphia, are based on
Johnson’s alleged “negligence” in handling the second ChildLine report made about Smith, and
in particular, Johnson’s failure to notify Francis about the report. The allegations concerning
Johnson fail to state a plausible constitutional claim for two reasons. First, § 1983 claims may
not be predicated on a state actor’s mere negligence. See Canton v. Harris, 489 U.S. 378, 387
(1989) (holding that mere negligence in training cannot form basis of § 1983 liability); Daniels v.
Williams, 474 U.S. 327, 328 (1986) (holding that official’s mere negligence is not actionable
under § 1983 because “the Due Process Clause is simply not implicated by a negligent act of an

official causing unintended loss of or injury to life, liberty, or property”). Second, assuming
there was a second ChildLine report made against Smith, Johnson, who is a county employee
and not a state employee, was under no obligation to notify Francis about the report since he was
not alleged to be the subject of the report. See 55 Pa. Code § 1390.91 (listing the only recipients
to receive notice of a ChildLine abuse report, including the subject to the report but not including
a parent or guardian); Mulholland v. Gov’t Cnty. of Berks, Pa., 706 F.3d 227, 239 (3d Cir. 2013)
(concluding that county defendants could not be liable for a violation of a father’s due process
rights in not being notified that he was the subject of a ChildLine report because Pennsylvania’s
Child Protective Services Law allocates responsibility for providing such notice to the
Pennsylvania Department of Public Welfare and not to county agencies). Accordingly, any
§ 1983 claims against Johnson must also be dismissed.
G. State Law Claims
It is possible that Francis intends to assert state law claims based on allegations that

Defendants were negligent in regard to child abuse investigation against Smith. Because the
Court has dismissed Francis’s federal claims, the Court will not exercise supplemental
jurisdiction under 28 U.S.C. § 1367(c) over any state law claims. Accordingly, the only
independent basis for jurisdiction over state law claims is 28 U.S.C. § 1332(a), which grants a
district court jurisdiction over civil actions between citizens of different States where the amount
in controversy exceeds $75,000. Complete diversity is required, meaning that “every plaintiff
must be of diverse state citizenship from every defendant.” In re Briscoe, 448 F.3d 201, 215 (3d
Cir. 2006); Lincoln Benefit Life Co., 800 F.3d 99, 104 (3d Cir. 2015). An individual is a citizen
of the state where they are domiciled, meaning the state where they are physically present and
intend to remain. See Washington v. Hovensa, LLC, 652 F.3d 340, 344 (3d Cir. 2011). A non-

profit corporation is a citizen of both its state of incorporation and principal place of business.
See SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 202 (3d Cir. 2022). Although Francis
does not allege his citizenship, he lists a Pennsylvania address for himself as well as for each of
the named Defendants. Thus, it appears that diversity jurisdiction is lacking over this action.
Accordingly, to the extent Francis intended to assert state law claims, they will be dismissed
without prejudice for lack of subject matter jurisdiction.
IV. CONCLUSION
For the foregoing reasons, the Court will grant Francis leave to proceed in forma
pauperis and dismiss his Complaint pursuant to 28 U.S.C. § 1915(e). Leave to amend will not
be given as the Court concludes that any attempt to amend would be futile. See Grayson v.
Mayview State Hosp., 293 F.3d 103, 108, 110 (3d Cir. 2002). An appropriate order follows
dismissing this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10666726. Public record. Not legal advice.