Scholl v. Pavilonis

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RYAN SCHOLL, BREANNA AIRGOOD, )

individually, and as parents and natural )

guardians of B.S., ) 2:25-cv-2

)

Plaintiffs, )

)

v. )

)

KELLY PAVILONIS et al., )

)

Defendants. )

MEMORANDUM ORDER

B.S., the child of Plaintiffs Ryan Scholl and Breanna Airgood, was born on

December 31, 2024. ECF 11, ¶ 1.1 Two days later, he was removed by state officials

from Ms. Airgood’s physical custody while she remained admitted at the hospital.

The child was taken into state custody, after caseworkers at the Allegheny County

Office of Children, Youth and Families (OCYF), Kellie Pavilonis and her supervisor

Candice Dewberry, filed an application for Emergency Care Authorization

(ECA). Id., ¶¶ 2-4.

Plaintiffs bring claims under 42 U.S.C. § 1983 against Caseworker Pavilonis,

Supervisor Dewberry, OCYF Department of Human Services’s Deputy Director

Mandeep Gill, and Allegheny County, for constitutional violations of substantive due

process (Count I) and procedural due process (Count II), and for Monell liability

(Count III). In addition, Plaintiffs bring a state-law claim for intentional infliction of

emotional distress (Count IV).

Defendants move to dismiss the operative complaint (the First Amended

Complaint). ECF 12. The motion is fully briefed and ready for disposition. For the

1 Plaintiffs’ complaint starts over at paragraph one under the factual allegations.

reasons that follow, the Court will grant the motion.

DISCUSSION & ANALYSIS

I. Defendants’ procedural arguments fail.

The Court begins with addressing Defendants’ procedural arguments

regarding Younger and Rooker-Feldman, and finds that they do not bar the claims

here.

As of the date that the motion to dismiss was filed, the

state-court dependency proceedings were ongoing. See ECF 13-1 (state court docket

sheet indicating that an adjudicatory hearing was scheduled for April 2, 2025). But

because Plaintiffs seek only damages and not injunctive relief, the Court finds that

abstention under Younger is not warranted. See Borowski v. Kean Univ., 68 F.4th

844, 850 (3d Cir. 2023) (“If the claims in . . . a federal suit [in which Younger applies]

are only for injunctive or declaratory relief, . . . a federal court must dismiss the case.

Alternatively, if the federal lawsuit seeks only damages, then a federal court cannot

dismiss the suit but may, in the exercise of its discretion, stay the case for the

pendency of the state proceedings.” (cleaned up)); Peterson v. Allegheny Cnty., No. 21-

78, 2022 WL 280948, at *12 (W.D. Pa. Jan. 31, 2022) (Wiegand, J.) (Younger

abstention doesn’t apply to a suit seeking only monetary damages for Section 1983

claims because “while it may be true that Plaintiffs could have raised certain federal

constitutional challenges or defenses in the Family Court proceedings, they could not

have asserted the particular claims for damages they assert here”).

. Similarly, the Court finds that the Rooker-

Feldman doctrine does not bar Plaintiffs’ claims, given that Plaintiffs are only seeking

damages related to the alleged due-process violations—not injunctive relief in the

form of overturning the ECA or shelter-care orders. See Calipo v. Erie Cnty. Off. of

Child. & Youth Servs., 786 F. App’x 329, 332 (3d Cir. 2019) (Rooker-Feldman doctrine

does not bar “claims regarding due process violations and alleged misconduct in

connection with the termination of [plaintiff’s] parental rights”); B.S. v. Somerset

Cnty., 704 F.3d 250, 260 (3d Cir. 2013) (summarizing four requirements to be met for

doctrine to apply, including that “the plaintiff is inviting the district court to review

and reject . . . state[-court] judgments” (cleaned up)).

II. Plaintiffs’ Section 1983 claims (Counts I-III) fail.

Turning next to the claims at issue, Plaintiffs have not plausibly pled their

Section 1983 claims.2

. The Court finds that the complaint

fails to state a substantive-due-process claim. To plead a substantive-due-process

claim, a plaintiff must allege that the social worker’s conduct “reach[ed] a level of

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

Philadelphia, 174 F.3d 368, 375-76 (3d Cir. 1999). A state official must have

information that “would have created an objectively reasonable suspicion” that a child

has been abused or is in imminent danger of abuse; otherwise, removal of the child

can constitute an arbitrary abuse of government power. Croft v. Westmoreland Cnty.

Child. & Youth Servs., 103 F.3d 1123, 1126 (3d Cir. 1997). “Reasonable suspicion is

lacking when a child welfare agency has consciously disregarded a great risk that

there had been no abuse.” Mulholland v. Gov’t Cnty. of Berks, 706 F.3d 227, 241 (3d

Cir. 2013) (cleaned up). “On the other hand, [courts have found] no substantive due

process violation when removal was based on a report of child abuse that contained

specific, credible, contemporaneous, and mutually consistent evidence[.]” Gajarov v.

Allegheny Cnty. Off. of Child., Youth, & Fams., No. 20-1017, 2021 WL 140842, at *7

(W.D. Pa. Jan. 15, 2021) (Hornak, C.J.) (cleaned up).

Plaintiffs contend that Defendants did not have information that would create

2 As the Court finds that the Section 1983 claims are not plausibly pled, the Court

does not reach the issue of whether the individual Defendants are entitled to absolute

immunity.

an objectively reasonable suspicion of abuse at the time that B.S. was removed.

Specifically, the ECA petition included the following facts: (1) Plaintiffs’ oldest child

was removed in March 2022 due to injuries indicating that he was physically abused,

(2) Plaintiffs’ second-oldest child was also removed due to OCYF’s inability to assure

the child’s safety, (3) Mr. Scholl pled guilty to Felony Endangering Welfare of

Children (EWOC) and Ms. Airgood pled guilty to Misdemeanor EWOC in April 2024

and are both serving probation for five years, (4) the criminal orders pursuant to those

criminal proceedings only permit Plaintiffs to see the two older children during

supervised visits with OCYF, and (5) OCYF is unable to assure the safety of B.S.

while in Plaintiffs’ care. ECF 11, ¶ 3.

Plaintiffs argue that the decision to remove B.S. based on these allegations was

arbitrary and grossly negligent because there were no facts suggesting that B.S.

himself was in imminent danger of abuse—and, to the contrary, the complaint alleges

that evidence presented at permanency review hearings since January 2024 showed

that there are no safety concerns for the older children when they are visiting their

parents. ECF 15, pp. 8-9, 14; ECF 11, ¶ 8. The Court disagrees.

Even taking as true the fact that there was some evidence presented during

the state dependency proceedings that “there were no safety concerns for the children

while visiting with” Plaintiffs (ECF 15, p. 14) and that Plaintiffs “had received only

positive reviews from the [OCYF]-contracted service providers tasked with

supervising the visits with their two older children[,] (id. at 8), and also taking as

true the ECA petition’s failure to note that “B.S. is not subject to the criminal

order[s],” (ECF 11, ¶ 8), the fact remained that, at the time of B.S.’s removal,

Plaintiffs were only allowed supervised visits with their two older children, stemming

from the removal of the oldest child, based on abuse, approximately two years and

nine months prior to B.S.’s birth—which led to the removal of the second-oldest child

and the criminal orders. Further, Plaintiffs had pled guilty to EWOC approximately

nine months before B.S.’s removal.

Given this fairly recent history with respect to their two older children and the

continued required supervised visits for those children, the decision to seek removal

of B.S. does not “shock the conscience,” and does not exceed negligence or deliberate

indifference. Compare Mulholland, 706 F.3d at 243 (child welfare agency had

reasonable suspicion to remove children based on plaintiff’s listing on ChildLine—

from ten years prior—as an indicated perpetrator of child abuse, despite plaintiff’s

argument that agency had several interactions with him without raising any

concerns in the intervening time period; although “agency could have acted in a more

deliberate and less sudden fashion by providing [the parents] the courtesy of letting

them know that it intended to petition the juvenile court for removal of the

children[,]” given the passage of time since he was listed on ChildLine and in light of

the several cooperative interactions, “its failure to do so does not reach a level of gross

negligence or arbitrariness that indeed ‘shocks the conscience’” (cleaned up)), and

B.S. v. Somerset Cnty., 704 F.3d 250, 268 (3d Cir. 2013) (caseworker’s

misrepresentation about child’s weight, based on doctor’s report, leading to child’s

removal, cannot be viewed as more than mere negligence), with Croft, 103 F.3d at

1126 (a “six-fold hearsay report by an anonymous informant” that was not

corroborated by other evidence did not provide reasonable grounds for removal).

Put differently, the allegations in the complaint don’t show that Defendants

consciously disregarded a great risk that there would be no abuse.3 See Wolfhawk v.

3 While state law does not set the constitutional standard here, the Court disagrees

with Plaintiffs’ position that the removal of B.S. under the factual circumstances here

is unsupported by Pennsylvania law (ECF 15, pp. 7-8). See Int. of M.H., No. 1286-

2019, 2019 WL 6716291 (Pa. Super. Ct. Dec. 10, 2019) (affirming dependency

adjudication of newborn based on termination of parental rights as to the five other

children, reports of sexual abuse committed by the parents against the two oldest

children, and mother’s history of substance abuse and criminal convictions); In re

R.W.J., 826 A.2d 10 (Pa. Super. Ct. 2003) (affirming emergency removal of newborn

child because four other children were previously removed from mother’s custody, one

Schuylkill Cnty., No. 05-1984, 2005 WL 2810608, at *7 (M.D. Pa. Oct. 27, 2005)

(caseworkers’ conduct in seeking court intervention to assume custody of a newborn

fails to shock the conscience where, inter alia, two of plaintiff’s older children had

been removed from her care following court proceedings); Nin v. Luzerne Cnty., No.

17-802, 2020 WL 6143561, at *16 (M.D. Pa. Oct. 19, 2020) (removal of children based

on suspected abuse of one sibling does not shock the conscience); Abrantes v. Smith,

No. 23-1324, 2024 WL 3969685, at *7 (M.D. Pa. Aug. 28, 2024) (no substantive-due-

process claim based on allegation that children were removed after teacher reported

that younger child had bruise on her arm); Grullon v. Admin. for Child.’s Servs., No.

18-3129, 2021 WL 981848, at *7 (S.D.N.Y. Mar. 16, 2021) (child welfare agency “is

not precluded from considering the parent’s pre-birth conduct in determining

whether post-birth there is reason to believe that” child is in imminent danger).

Accordingly, the Court will dismiss this claim.4

child died at the hands of her father, and mother failed to comply with the court-

imposed requirements for her other children); In Int. of Black, 417 A.2d 1178 (Pa.

Super. Ct. 1980) (prognostic evidence concerning care provided by parents to two

children who had died previously was sufficient to declare newborn infant deprived,

even though infant had never been in care and custody of his parents).

4 Alternatively, even if Plaintiffs had stated a substantive-due-process claim,

Defendants would have qualified immunity. This is so because the Court “cannot say

that the right involved here was clearly established in light of the specific context of

the case.” J.R. v. Lehigh Cnty., No. 9-6207, 2012 WL 12897435, at *6 (E.D. Pa. July

20, 2012) (cleaned up); see also Brown v. Daniels, 128 F. App’x 910, 915 (3d Cir. 2005)

(complaint may be subject to dismissal under Rule 12(b)(6) based on qualified

immunity “when the immunity is established on the face of the complaint” (cleaned

up)).

Considering the specific allegations in the complaint, the Court frames the right as

follows: the right not to have a newborn child removed from his parents’ custody,

pursuant to an emergency removal order, based on abuse of their oldest child two

years and nine months prior, which led to EWOC convictions and removal of the two

older children. “[F]or [Plaintiffs’] case to have legs [they] 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

Plaintiffs fail to plead a procedural-

due-process claim. Plaintiffs’ claim is premised on the fact that Defendants waited

until B.S. was born to file the ECA petition, even though they were aware for months

that Ms. Airgood was pregnant and even though the facts in the ECA petition were

not only materially misleading but had all been known to Defendants since at least

October 2024 (the date of the last permanency review hearing for the two older

children). ECF 11, ¶ 12. When Plaintiffs requested that Defendants inform them of

whether they intended to take custody of B.S., Defendants claimed they wouldn’t

know until after they “staffed” the issue. Id.

Although Plaintiffs contend that Defendants “failed to engage in a

collaborative process with the family prior to removing B.S.,” (ECF 15, p. 17) and

seem to be arguing that they were entitled to some sort of pre-deprivation notice given

process.” Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d 164, 170 (3d

Cir. 2016), as amended (Mar. 21, 2016).

“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 . . . would violate substantive due process.”

Gajarov, 2021 WL 140842, at *10 (framing the right in terms of the temporary

removal of a child “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”).

In particular, none of the cases that Plaintiffs cite to in their brief (ECF 15, pp. 13-14

n.3) are sufficiently analogous to the circumstances of this case, which involves

removal of a newborn child based on his siblings’ recent dependency proceedings.

Several of those cited cases do not even appear to address substantive-due-process

violations (see id., citing Ernst v. Child & Youth Servs. of Chester Cnty., 108 F.3d 486

(3d Cir. 1997), Spahr v. Collins, No. 22-2787, 2024 WL 3738878 (3d Cir. Aug. 9, 2024),

Walthour v. Child & Youth Servs., 728 F. Supp. 2d 628 (E.D. Pa. 2010)). And the

other cited cases found no substantive-due-process violations (see id., citing Miller,

174 F.3d 368, Hatfield v. Berube, 714 F. App’x 99 (3d Cir. 2017), B.S., 704 F.3d 250).

So none of those cases put the caseworkers “on notice that their conduct violated

substantive due process.” Mammaro, 814 F.3d at 171.

the circumstances of this case,5 “initiating child custody proceedings by ex parte

orders is generally constitutional if a prompt post-deprivation hearing is held.”

Dennis v. Dejong, 557 F. App’x 112, 117 (3d Cir. 2014) (cleaned up) (rejecting

plaintiffs’ argument that their procedural due process rights were violated because

they weren’t provided with a pre-deprivation hearing before their child was placed in

foster care upon his discharge from the hospital, even though child welfare agency

knew in advance that it would seek protective custody of the child); see also Miller,

174 F.3d at 374 (“We do not discount parents’ strong interest in the custody of their

children, but requiring that a parent or his attorney be included in emergency pre-

deprivation hearings ‘when available’ or ‘when at hand’ would build delay into these

time-sensitive hearings and encourage litigation over ‘availability.’ Such a

requirement would thus inhibit, deter and, at times, subvert the crucial function of

ex parte custody hearings—protecting children who are in imminent danger of

harm.”).

Plaintiffs had the opportunity to be heard at the shelter-care hearing days after

B.S. was removed. The state-court records show that Plaintiffs, along with their

attorneys, were both present at that hearing. ECF 13-2. Accordingly, Plaintiffs were

provided “with the opportunity to be heard in a meaningful time and manner as

constitutionally required.” Lowe v. Lancaster Cnty. Child. & Youth Soc. Servs., No.

20-1413, 2020 WL 7223416, at *7 (E.D. Pa. Dec. 8, 2020); see also Brown v. Daniels,

290 F. App’x 467, 473 (3d Cir. 2008) (dismissing procedural-due-process claim

because there was no indication that, had the hearing been conducted earlier, a

5 To the extent that Plaintiffs are alleging violations of state law (see ECF 15, p. 17

(arguing that Defendants “ignored Family Finding” required under state law and

violated the “trauma-informed judicial practice” as set forth in the Pennsylvania

Dependency Benchbook)), “Section 1983 does not provide a cause of action for

violations of state statutes.” Smith v. Northampton Cnty., No. 22-3788, 2023 WL

1767765, at *8 (E.D. Pa. Feb. 3, 2023) (quotation omitted).

different result would have been reached).

The Court will therefore dismiss this claim.

The Monell claim, which appears to be

premised on a failure-to-train theory, fails because Plaintiffs have not alleged an

underlying constitutional violation, as noted above. See A.J. v. Lancaster Cnty., 826

F. App’x 248, 251 (3d Cir. 2020). The Court thus will dismiss this claim too.6

* * *

Accordingly, Defendants’ motion to dismiss (ECF 12) is GRANTED. The

Court dismisses all federal claims and will decline to exercise supplemental

jurisdiction over the one state-law claim. The Court finds that the defects outlined

above are legal in nature and it would probably be futile to allow further amendment.

That said, if Plaintiffs believe that there is some way in which they can amend their

complaint to state claims, based on the above discussion, they may file a motion for

leave to amend, with the proposed amended complaint attached. Thus, the dismissal

here will be without prejudice, for now. Any motion for leave to amend must be filed

by August 19, 2025. If no motion is filed by then, the Court will convert the dismissal

to one with prejudice.

Dated: August 5, 2025 BY THE COURT:

/s/ J. Nicholas Ranjan

United States District Judge

6 There are no allegations in the complaint indicating that Deputy Director Gill was

personally involved in the alleged constitutional violations. To the extent that

Plaintiffs are asserting a theory of supervisory liability against Deputy Director Gill,

Plaintiffs fail to state a claim for supervisory liability. See A.M. ex rel. J.M.K. v.

Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (discussing the two

theories of supervisory liability).