Billups et al v. Penn State Milton S. Hershey Medical Center et al

Filing 253

ORDER ADOPTING REPORT AND RECOMMENDATIONS - IT IS ORDERED THAT: 1. The Court ADOPTS the Report and Recommendation 241 of Magistrate Judge Saporito;2. Plaintiffs objections to the Report and Recommendation are OVERRULED; 3. Defendants motions 218 & 203 for summary judgment are GRANTED; 4. Plaintiffs motions 206 & 225 for summary judgment are DENIED; 5. Plaintiffs motion 244 to file exhibit under seal is DEEMED WITHDRAWN for failure to comply with Local Rule 7.5; 6. The Clerk of Court is directed to enter JUDGMENT in favor of Defendants and against Plaintiffs with respect to all remaining claims of the amended complaint; and 7. The Clerk of Court is directed to CLOSE this case. Signed by Honorable Yvette Kane on 9/29/17. (rw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMEL BILLUPS, et al.,
Plaintiffs
v.

PENN STATE MILTON S. HERSHEY
MEDICALCENTER, et al.,
Defendants

:
:
:
:
:
:
:
:
:

No. 1:11-cv-01784
(Judge Kane)
(Magistrate Judge Saporito)

ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Before the Court is Magistrate Judge Saporito’s March 17, 2017 Report and
Recommendation (Doc. No. 241), addressing four pending motions for summary judgment,
namely: (1) Plaintiffs Jamel Billups, Jacqueline Rosario, T.R., and L.B.’s motion as to the
claims asserted against Defendants Franklin County, Kari Coccagna, and Minnie Turner (the
“County Defendants”) (Doc. No. 206); (2) Plaintiffs’ motion regarding the claims asserted
against Defendants Mark S. Dias, M.D., Kathryn R. Crowell, M.D., and Arabinda K. Choudhary,
M.D. (the “Medical Defendants”) (Doc. No. 225); (3) the County Defendants’ motion as to the
claims asserted against them by Plaintiffs (Doc. No. 218); and (4) the Medical Defendants’
motion as to the claims asserted against them by Plaintiffs (Doc. No. 230). Also pending are
Plaintiffs’ objections to the Magistrate Judge’s Report and Recommendation (Doc. No. 242);
Defendants’ responses to Plaintiffs’ objections (Doc. Nos. 247, 248); and Plaintiffs’ motion to
file a document under seal (Doc. No. 244).
In his Report and Recommendation, Magistrate Judge Saporito recommends: (1) denying
Plaintiffs’ motions for summary judgment; (2) granting Defendants’ motions for summary

1

judgment; and (3) entering judgment in favor of Defendants with respect to the remaining claims
of the amended complaint. (Doc. No. 241 at 42.)
Plaintiffs have filed lengthy objections to the Report and Recommendation. (Doc. No.
242.) As it specifically relates to the Magistrate Judge’s finding that the Medical Defendants are
entitled to summary judgment on Plaintiffs’ substantive due process claim against them,
Plaintiffs object to (1) the Magistrate Judge’s “requirement that the Plaintiffs prove a specific
deliberate misrepresentation” (Doc. No. 243 at 9-11); (2) the Magistrate Judge’s finding that
Children and Youth Services and the police did not rely on the alleged misrepresentations of the
Medical Defendants (id. at 11-13); and (3) what they characterize as the Magistrate Judge’s
application of the “purpose to cause harm” standard of liability (id. at 13-14).
With regard to the Magistrate Judge’s recommendation that the County Defendants are
entitled to summary judgment on Plaintiffs’ substantive due process and procedural due process
claims against them, Plaintiffs object to the Magistrate Judge’s finding that (1) Plaintiffs did not
have a protected liberty interest that was implicated by the conduct of the County Defendants in
connection with the imposition of the December 21, 2010 safety plan (id. at 16-19); (2) even
assuming that Plaintiffs had a protected liberty interest, the County Defendants did not violate
the Plaintiffs’ substantive due process rights when imposing the December 2010 safety plan (id.
at 19-22); (3) the Plaintiffs’ 2009 dependency hearing provided Plaintiffs with adequate
procedural due process protections to remedy the imposition of the 2010 safety plan without
additional procedural protections (id. at 22-27); and (4) Plaintiffs failed to establish that Franklin
County had a policy of failing to provide procedural due process safeguards (id. at 27-28).
Having thoroughly reviewed these objections, this Court finds that Magistrate Judge
Saporito’s thorough and well-reasoned Report and Recommendation correctly and

2

comprehensively addressed the substance of Plaintiffs’ objections, and therefore, this Court will
not write separately to address them, except with regard to one issue. In connection with the
filing of their objections to the Report and Recommendation, Plaintiffs filed a motion to file a
document under seal, which seeks to file a Pennsylvania Commonwealth Court unreported
opinion under seal with this Court. This filing appears to relate to Plaintiffs’ third objection to
Magistrate Judge Saporito’s disposition of their procedural due process claim asserted against the
County Defendants. Notably, Plaintiffs’ third objection and motion to seal raise an argument
that they failed to raise before Magistrate Judge Saporito – that the 2009 dependency hearing did
not provide adequate procedural due process protections for the imposition of the 2010 safety
plan, because the Commonwealth Court of Pennsylvania, in a sealed opinion issued in an action
filed by Plaintiffs, “declared the dependency proceeding flawed and to have denied the Plaintiffs
sufficient due process to challenge the false allegations of abuse . . . .” (Doc. No. 250 at 4.)
The Court finds unavailing Plaintiffs’ reliance on this sealed Commonwealth Court
opinion, for several reasons. First, Plaintiffs failed to raise this argument prior to the issuance of
the Magistrate Judge’s Report and Recommendation on the cross motions for summary
judgment. Plaintiffs blame this error on both Magistrate Judge Saporito, who supposedly “erred
by giving undue credence to the original dependency proceedings,” and on the Defendants, who
“critically omitted from disclosing to the Court the subsequent Commonwealth Court judicial
finding that the dependency was a flawed proceeding.” (Doc. Nos. 243 at 26, 250 at 5-6 n.1.)
However, Plaintiffs fail to explain why – if they believed the Commonwealth Court opinion to be
material to the motions for summary judgment – they did not reference it themselves in
connection with their briefing on the cross motions for summary judgment. Generally, “interests
of judicial economy weigh against allowing a party to raise a new issue in objection to a

3

magistrate judge’s report and recommendation that was not raised before the magistrate judge.”
Witmer v. Gallagher & Co., No. 1:08-cv-1329, 2009 WL 904877, at *3 (M.D. Pa. Mar. 31,
2009) (citing Paterson-Leitch Co., Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991
(1st Cir. 1988) (“Systemic efficiencies would be frustrated and the magistrate’s role reduced to
that of a mere dress rehearsal if a party were allowed to feint and weave at the initial hearing, and
save its knockout punch for the second round. In addition, it would be fundamentally unfair to
permit a litigant to set its case in motion before the magistrate, wait to see which way the wind
was blowing, and – having received an unfavorable recommendation – shift gears before the
district judge.”)); see also Hubbard v. Pleasant Valley Sch. Dist., No. 3:cv-03-0797, 2006 WL
42093, at *7 (M.D. Pa. Jan. 6, 2006) (“Issues raised for the first time in objections to the
magistrate judge’s recommendation are deemed waived.”); Breeden v. Eckard, No. 14-6832,
2016 WL 1106893, at *5-*6 (E.D. Pa. Mar. 22, 2016) (“The court does not find that the interests
of justice warrant[ ] consideration of this belatedly-raised evidence and issue when the petitioner
had more-than ample time to raise it before [the] [m]agistrate [j]udge . . . .”).
Second, the Court is hard-pressed to discern how the Commonwealth Court opinion bears
on this Court’s review of Magistrate Judge Saporito’s Report and Recommendation on the
pending motions for summary judgment. The opinion, addressing the issue of whether Plaintiffs
should be allowed to file an untimely appeal of a report of founded child abuse, was rendered in
separate litigation between Plaintiffs and the Pennsylvania Department of Welfare. While the
opinion characterizes a subsequent change in testimony that was offered at the dependency
proceedings as an “administrative breakdown,” which, considered in connection with other
circumstances, justified granting Plaintiffs the opportunity to file an untimely appeal of the

4

founded report of child abuse, the opinion does not impugn the nature of the due process
afforded Plaintiffs in connection with the original dependency proceedings.
The Court’s finding on this point is bolstered by the fact that Plaintiffs have articulated
conflicting positions in their submissions with regard to the potential relevance of the issue of the
due process afforded in connection with the dependency proceedings. Indeed, in their brief in
support of their objections to the Report and Recommendation, Plaintiffs explicitly state that they
“are not challenging the due process afforded them during the dependency proceedings . . . .”
(Doc. No. 243 at 26.) Yet, in their motion to seal, Plaintiffs assert that the Commonwealth Court
opinion tends to show that “the dependency proceeding [was] flawed” and that it “denied the
Plaintiffs sufficient due process to challenge the false allegations of abuse . . . .” (Doc. No. 250
at 4.) In light of Plaintiffs’ failure to raise this issue before Magistrate Judge Saporito, the lack
of apparent relevance of the issues addressed in the sealed Commonwealth Court opinion to the
pending motions for summary judgment, and the inconsistencies in Plaintiffs’ arguments with
regard to the relevancy of the material contained in the Commonwealth Court opinion, the Court
declines to consider the Commonwealth Court opinion in connection with its review of the
pending Report and Recommendation.1
ACCORDINGLY, on this 29th day of September 2017, upon extensive review of the
record and the applicable law, IT IS ORDERED THAT:
1. The Court ADOPTS the Report and Recommendation (Doc. No. 241), of Magistrate
Judge Saporito;
2. Plaintiffs’ objections to the Report and Recommendation are OVERRULED;
1

Plaintiffs failed to file a brief in support of their motion to seal, as required by Local Rule 7.5.
Pursuant to that rule, if a supporting brief is not filed within fourteen (14) days of the filing of a
motion, the motion “shall be deemed withdrawn.” L.R. 7.5 In light of Plaintiffs’ failure to
comply with Local Rule 7.5 in connection with the filng of their motion to seal, the Court will
deem the motion withdrawn.
5

3. Defendants’ motions for summary judgment (Doc. Nos. 218, 230), are GRANTED;
4. Plaintiffs’ motions for summary judgment (Doc. Nos. 206, 225), are DENIED;
5. Plaintiff’s motion to file exhibit under seal (Doc. No. 244), is DEEMED
WITHDRAWN for failure to comply with Local Rule 7.5;
6. The Clerk of Court is directed to enter JUDGMENT in favor of Defendants and against
Plaintiffs with respect to all remaining claims of the amended complaint; and
7. The Clerk of Court is directed to CLOSE this case.

s/ Yvette Kane
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania

6