PAYNE et al v. CITY OF PHILADELPHIA et al
Filing
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MEMORANDUM ORDER THAT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IS GRANTED FOR THE REASONS OUTLINED HEREIN. SIGNED BY HONORABLE GERALD A. MCHUGH ON 4/4/2016. 4/4/2016 ENTERED AND COPIES MAILED TO PRO SES, UNREP AND COUNSEL AND E-MAILED.(amas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
VINCENT PAYNE, et al.,
Plaintiffs,
v.
CITY OF PHILADELPHIA, et al.,
Defendants.
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CIVIL ACTION
No. 14-6508
MEMORANDUM ORDER
This 4th day of April, 2016, upon review of Defendants’ Motion for Summary Judgment,
it is hereby ORDERED that the Motion is GRANTED for the reasons that follow.
I.
Background
Plaintiffs’ allegations arise from the removal of the minor Plaintiff (“V.P.”) from the
home of her father, Plaintiff Vincent Payne. On March 29, 2013, police responded to a call from
tenants staying in Plaintiffs’ home, and Mr. Payne was arrested for allegedly assaulting and
endangering his daughter. V.P. Dep. at 5–6. V.P., who was 13 years old, told police at the time
of her father’s arrest that her father was high and had punched her. Investigation Interview
Record, Ex. 1 to V.P. Dep. at 1. 1
Defendant Tiffany McClean, a Philadelphia Department of Human Services (“DHS”)
social worker, was assigned to investigate the allegations. While Mr. Payne was incarcerated on
those charges, V.P. initially moved in with her aunt and uncle; however, after a few days they
decided they could no longer care for her and dropped her off at DHS. McClean Dep. at 15.
McClean then applied for and was granted a temporary Order of Protective Custody to place
V.P. in foster care because no other family members known to DHS were available to care for
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Both Plaintiffs have since testified that no physical altercation occurred on this date. See V.P. Payne Dep. at 8;
Vincent Payne Dep. at 6.
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her. 2 Id. at 16; Order of Protective Custody. On April 5, 2014 a shelter care hearing was held in
the Family Court of the First Judicial District of Pennsylvania. Mr. Payne did not attend because
he was still incarcerated, but the court appointed counsel to represent him. The Family Court
accepted McClean’s recommendation and ordered that legal custody of V.P. would remain with
DHS. April 5, 2013 Hr’g Tr.
McClean investigated the accusations against Mr. Payne and determined that while Mr.
Payne engaged in inappropriate discipline by hitting V.P., she did not believe his actions had
constituted child abuse. McClean Dep. at 21–22. On April 8, 2013, McClean sent a letter to Mr.
Payne notifying him that she had marked the report of suspected child abuse as unfounded. Id.
at 27. On the same day, McClean also filed a dependency petition. Dependency Pet., Ex. 3 to
McClean Aff. The Statement of Facts in support of the petition included allegations that “DHS
learned V.P. was assaulted by her father”; “V.P. alleged that Vincent Payne used drugs”; and
V.P. “appears withdrawn.” Id. at 8–9. The petition includes an affidavit of service stating that a
2
Some background on the vocabulary of Pennsylvania family law is helpful:
The applicable state-laws governing dependency proceedings are the Child Protective
Services Law, 23 Pa.C.S.A. §§ 6301–6386, and the Juvenile Act, 42 Pa.C.S.A. §§ 6301–6375.
Under 23 Pa.C.S.A. § 6315(a), a child may be taken into “protective custody” pursuant to a
court order issued according to 42 Pa.C.S.A. § 6324. “Protective custody” is a temporary solution
for a child at risk of abuse. 42 Pa.C.S.A. § 6324(1). Additionally, 23 Pa.C.S.A. § 6315 provides
that upon obtaining an order for protective custody, an informal hearing must be held within 72
hours to determine whether to continue protective custody. See also 42 Pa.C.S.A. § 6332.
If at this informal hearing it is determined that protective custody should be continued, then
[the child welfare agency] has 48 hours to file a petition with the court alleging that the child is a
dependent child, which is a more long-term solution and requires hearings to determine whether
the child is a “dependent child.” 23 Pa.C.S.A. § 6315(d).
Dennis v. DeJong, 953 F. Supp. 2d 568, 592–93 (E.D. Pa. 2013) aff'd, 557 F. App'x 112 (3d Cir. 2014). A
“dependent child,” in relevant part, is defined as one who:
is without proper parental care or control, subsistence, education as required by law, or other care
or control necessary for his physical, mental, or emotional health, or morals. A determination that
there is a lack of proper parental care or control may be based upon evidence of conduct by the
parent, guardian or other custodian that places the health, safety or welfare of the child at risk,
including evidence of the parent's, guardian's or other custodian's use of alcohol or a controlled
substance that places the health, safety or welfare of the child at risk[.]
42 Pa.C.S.A. § 6302.
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copy of the petition, including the date and time for an adjudicatory hearing, was served on Mr.
Payne while he remained incarcerated. Id. at 7.
On April 12, 2013, the hearing was held, at which Mr. Payne was again represented by
counsel in his absence. April 12, 2013 Hr’g Tr. at 2. V.P. was adjudicated dependent on the
basis of her father’s present inability to adequately care for her. Ex. I. at 7. McClean had no
further involvement with V.P.’s case after this date, as the case was transferred to another social
worker. McClean Dep. at 33.
Mr. Payne was later released from jail on April 18, 2013, and the charges against him
were dismissed on May 2, 2013. Vincent Payne Dep. at 10. The Family Court held an Initial
Permanency Review Hearing on July 18, 2013. Mr. Payne was present and represented by
counsel at this hearing. July 18, 2013 Hr’g Tr. at 3. The Family Court accepted DHS’s
recommendation that V.P. remain in DHS custody, that she be permitted visits with Mr. Payne at
her discretion, and that Mr. Payne be ordered to undergo drug and alcohol testing. Id. at 6–8.
Numerous Permanency Review Hearings have taken place since that time, but counsel and social
workers speaking on behalf of DHS continue to recommend that V.P. remain in DHS custody, in
part because Mr. Payne has tested positive for drug use and failed to complete parenting classes
to which he was referred.
Plaintiffs filed the instant Second Amended Complaint (“SAC”) on March 13, 2015,
seeking compensatory and punitive damages for violations of procedural and substantive due
process rights resulting from these events, and Defendants move for summary judgment on all
claims. 3
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After Defendants filed their Motion, this case was dismissed pursuant to the agreement of the parties on October 5,
2015 (Doc. 31). On October 29, 2015, Mr. Payne filed a pro se motion asserting that he did not consent to the
dismissal and asked the Court to re-open the case (Doc. 32). The Court granted Plaintiffs the requested relief,
allowed Plaintiffs’ former counsel to withdraw, and provided Mr. Payne 90 days within which to seek new counsel
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II.
Summary Judgment Standard
Summary judgment is proper “if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). A motion for
summary judgment may not be granted simply on the basis that the non-movant files no response
in opposition. See Local Rule 7.1(c) (“In the absence of timely response, the motion may be
granted as uncontested except as provided under Fed.R.Civ.P. 56.”) (emphasis added); Fed. R. Civ.
P. 56 advisory committee's note to 2010 amendment (“summary judgment cannot be granted by
default even if there is a complete failure to respond to the motion, much less when an attempted
response fails to comply with Rule 56(c) requirements.”). However, if a party fails to properly
address another party’s assertion of fact, the court may consider the fact undisputed for purposes
of the motion. Fed. R. Civ. P. 56(e)(2). In addition, if the non-moving party “fails to make a
showing sufficient to establish the existence of an element essential to that party's case, and on
which that party will bear the burden at trial,” summary judgment is appropriate. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986).
III.
Substantive Due Process Claim
The Complaint alleges that the City of Philadelphia and DHS have created and
maintained an unconstitutional policy of preventing reunification of children with parents—even
after triggering allegations of abuse are determined to be unfounded—in order to strategically
inflate the DHS budget. Compl. at ¶ 50. Plaintiffs further allege that liability should extend to
and respond to the Motion for Summary Judgment (Doc. 34). Mr. Payne has filed several motions seeking
extensions of that deadline, one of which was granted and extended the deadline until March 18, 2016 (Doc. 39).
Mr. Payne has filed two documents since that deadline, but they largely contain accusations against Donnia Todd,
staff members at Carson Valley, and his former attorney, which are outside of the scope of the Complaint (Docs. 46
and 47). To the extent that those communications move to impose sanctions against Plaintiffs’ former attorney, the
Court finds no fault in Mr. Mosser’s conduct, and sanctions will not be imposed.
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all named parties because McClean violated Plaintiffs’ substantive due process rights by
implementing these policies; Wiley, as a supervisor, was responsible for ensuring the
implementation of these DHS policies; and Ambrose and Harley were policymakers responsible
for developing these reunification policies. Compl. at ¶¶ 37, 45–49.
A. Defendant McClean
The record shows that, once McClean found the triggering child abuse allegations against
Mr. Payne to be unfounded, 4 her actions were limited to submitting a Dependency Petition to the
Family Court and defending the related recommendations at the April 12, 2013 hearing. Child
welfare workers are “entitled to absolute immunity for their actions on behalf of the state in
preparing for, initiating, and prosecuting dependency proceedings.” Ernst v. Child & Youth
Servs. of Chester Cty., 108 F.3d 486, 495 (3d Cir. 1997). This immunity extends to the
“gathering and evaluation of information and professional opinions regarding the relationship
between [the parent and child] in preparation for the dependency proceedings,” as well as “the
formulation and presentation of recommendations to the court in the course of such
proceedings.” Id. at 495, 498. Absolute immunity “defeats a suit at the outset, so long as the
official's actions were within the scope of the immunity.” Imbler v. Pachtman, 424 U.S. 409,
419 n.13 (1976). There is no genuine dispute that all of McClean’s relevant actions fall within
the scope of this immunity, so she is entitled to summary judgment on this claim.
B. Defendants Wiley, Ambrose, and Harley
Furthermore, the record contains no evidence that Defendants Wiley, Ambrose, and
Harley personally engaged in any actions that led to a violation of constitutional rights. First,
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The Complaint does not allege that McClean committed any errors in her investigation of the child abuse
allegations against Mr. Payne prior to her submissions to the Family Court. Since this investigation resulted in a
finding that the allegations were unfounded, Plaintiffs appear to argue that this part of the investigation was done
correctly, and use the finding that no physical abuse occurred as the basis for accusing McClean of error in her
subsequent actions.
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“[a] defendant in a civil rights action must have personal involvement in the alleged wrongs;
liability cannot be predicated solely on the operation of respondeat superior.” Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted). The Court acknowledges
that “[i]ndividual defendants who are policymakers may be liable under § 1983 if it is shown that
such defendants, ‘with deliberate indifference to the consequences, established and maintained a
policy, practice, or custom which directly caused [the] constitutional harm.’ ” A.M. ex rel.
J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Stoneking v.
Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). A supervisor may also be held
personally liable under § 1983 if she participated in violating Plaintiffs’ rights, directed others to
violate them, or had knowledge of and acquiesced in her subordinates’ violations. Id. (citing
Baker v. Monroe Township, 50 F.3d 1186, 1190–91 (3d Cir. 1995)). There is, however, no
evidence in the record that would allow a reasonable jury to conclude that the named individual
defendants had the responsibilities or powers with which Plaintiffs credit them, that they
established or implemented any particular policies or customs, or that they were aware that
particular consequences would result from their actions. The Complaint describes a string of
instances in which DHS has unjustly failed to reunify other parents and children, but none of
these examples are substantiated in the record. “[A] party opposing a properly supported motion
for summary judgment may not rest upon mere allegation or denials of his pleading, but must set
forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986); see also Fed. R. Civ. P. 56 advisory committee's note to 1963
amendment (“The very mission of the summary judgment procedure is to pierce the pleadings
and to assess the proof in order to see whether there is a genuine need for trial.”).
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Moreover, the record does not support a finding that a constitutional violation occurred in
this instance. Substantive due process rights are only violated if conduct by officials “can
properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.”
Collins v. City of Harker Heights, Tex., 503 U.S. 115, 116 (1992). Liability for a substantive
due process violation may attach when a social worker acts with gross negligence to separate
parent and child without any objectively valid grounds for doing so. Miller v. City of
Philadelphia, 174 F.3d 368, 374 (3d Cir. 1999).
It is troubling that even after the triggering abuse allegation was determined to be
unfounded, this change in circumstance was not included in the dependency petition, nor was
that information brought to the Family Court’s attention during the April 12 hearing.
Nonetheless, the record before me includes evidence that V.P. told officials she was afraid of her
father, that he hit her when he was high, and that he lacked adequate housing. This demonstrates
that the DHS officers involved acted well within the bounds of reason by recommending
continued DHS placement and requesting that the Family Court order drug testing and parenting
classes, even after the triggering assault allegation was determined to be unfounded. The
Complaint ignores the fact that an unfounded child abuse allegation may nonetheless prompt an
investigation that reveals a “lack of proper parental care or control … that places the health,
safety or welfare of the child at risk,” justifying a dependency recommendation. 42 Pa.C.S.A. §
6302. Furthermore, to the extent that Plaintiffs seek to use this federal action to present an
indirect attack on the Family Court’s decision to follow those recommendations and continue
V.P.’s placement in DHS custody, the Rooker-Feldman doctrine bars this Court from reviewing
the Family Court’s decision. See Marran v. Marran, 376 F.3d 143, 153 (3d Cir. 2004) (citing
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Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983)).
C. Defendants DHS and the City of Philadelphia
Because of the failure to demonstrate sufficient evidence of an underlying constitutional
violation in this case, the Monell claim against the City of Philadelphia and DHS must also fail.
See Monell v. Dep’t Soc. Servs., 436 U.S. 658 (1978) (stating that a litigant may only bring a
municipal liability claim under § 1983 if a municipal policy or custom caused an underlying
constitutional violation); City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
IV.
Procedural Due Process
The Complaint also alleges that Defendants violated Plaintiffs’ procedural due process
rights by failing to ensure the presence or participation of Mr. Payne at the April 12, 2013
dependency hearing which took place while he was incarcerated. Compl. at ¶¶ 39-40, 58. To
state a Section 1983 claim for deprivation of procedural due process, Mr. Payne must
demonstrate that: (1) he was deprived of an individual interest that is encompassed within the
Fourteenth Amendment's protection of life, liberty or property; and (2) the procedures available
did not provide due process of law. Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). First,
parents have a recognized liberty interest in the “care, custody, and control of their children.”
Troxel v. Granville, 530 U.S. 57, 65 (2000). 5 Second, due process requires an opportunity for
the parent to be heard at a meaningful time and in a meaningful manner after a child is removed
from his home. B.S. v. Somerset Cty., 704 F.3d 250, 271 (3d Cir. 2013) (citing Mathews v.
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Defendants point out that it is undisputed that V.P. received notice and was present at the hearing. The parties
have cited no authority regarding whether a child has a liberty interest in having a parent present at such a hearing,
and Pennsylvania’s Child Protective Service Law specifically denies that such a right exists. See 42 Pa.C.S. §
6310(e) (“Nothing in this section shall be construed to create a right of a child to have his parent, guardian or
custodian present at a proceeding under this chapter or participate in a court-ordered program.”). I interpret this
claim to be limited to a violation of Mr. Payne’s procedural due process rights and apply the Mathews factors
accordingly.
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Eldridge, 424 U.S. 319, 333 (1976)). To determine the extent of procedures required when the
state seeks to alter or suspend a parent’s right to custody of a minor child, the Third Circuit
applies the Matthews v. Eldrige balancing test, which considers the following factors:
(1) the private interest that will be affected by the official action; (2) the risk of an
erroneous deprivation of such an interest through the procedures used; (3) the
probable value, if any, of additional or substitute procedural safeguards; and (4)
the government's interest including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail.
B.S. v. Somerset Cty., 704 F.3d at 271 (citing Mathews v. Eldridge, 424 U.S. at 333).
In this case, the record shows that Mr. Payne was provided notice of the April 2013
shelter care and dependency hearings, and he was represented by counsel at each hearing. He
contends, however, that for the hearings to be meaningful, he should have been transported from
jail to be present at each hearing.
First, while a parent’s interest in his child’s custody is great, “[t]his interest … must be
balanced against the state's interest in protecting children suspected of being abused.” Miller v.
Philadelphia, 174 F.3d at 373. In addition, a dependency proceeding is an interim action that
does not result in the termination of parental rights, and there is dispute regarding whether
physical presence is even required at a proceeding to terminate that parent’s rights. See Philip
M. Genty, Procedural Due Process Rights of Incarcerated Parents in Termination of Parental
Rights Proceedings: A Fifty State Analysis, 30 J. FAM. L. 757, 774 (1992). Second, in this
particular instance, Mr. Payne’s presence at the hearings could not have affected the outcome; he
would have remained incarcerated, and his daughter would have still been without an adult to
care for her. While Mr. Payne was not physically present at the hearing, he was notified in
advance and represented by counsel. These are considerable safeguards. Finally, the right and
need of DHS to act expeditiously when a minor’s only parent is incarcerated is self-evident.
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Adding the additional administrative burden of securing the presence of every incarcerated
parent prior to a dependency hearing would create a significant impediment to this goal. See
Miller v. Philadelphia, 174 F.3d at 374 (holding that parents do not have a constitutional right to
be present at emergency pre-deprivation hearings “when available” because such a requirement
“would build delay into these time-sensitive hearings .... [and] 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.”). Timing aside, the cost and administrative burden of recognizing
such a right would be overwhelming.
V.
Conclusion
The Court is aware that Mr. Payne strongly desires to be reunited with his daughter, but
lacks jurisdiction to relitigate the state court’s determination of his daughter’s dependency. Nor
do I have either the power or the resources to determine what is in the best interests of the child.
In addition, while the instant suit seeks compensatory damages for constitutional violations, it
does not even request the injunctive relief that would be necessary to provide Mr. Payne with the
remedy he seeks. I must decide the Motion on the basis of the pleadings and the record before
me, and I conclude that Defendants are entitled to summary judgment on all claims.
/s/ Gerald Austin McHugh
United States District Court Judge
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