Seldomridge et al v. Penn State Hershey Medical Center et al

Filing 22

MEMORANDUM re Lancaster Cty Dfts' MOTION to Dismiss 8 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 06/04/14. (ma)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
MARK SELDOMRIDGE and ALISHA
TORRES, Individually, and as the
Natural Parents and Next Friend of
L.S., a Minor,
Plaintiffs
vs.

THE PENN STATE HERSHEY
MEDICAL CENTER, et al.,
Defendants.

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: CIVIL NO. 13-CV-2897
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MEMORANDUM
I.

Introduction
We are considering a motion to dismiss filed by the Lancaster County

Defendants.1 (Doc. 8). This civil rights lawsuit was filed on November 19, 2013, by
Plaintiffs Mark Seldomridge and Alisha Torres, against: Penn State Hershey Medical
Center (“PSHMC”), six doctors employed at PSHMC, Lancaster County, and six
individuals employed at the Lancaster County Children and Youth Services Agency
(“CYS”). Plaintiffs allege that their constitutional rights were violated when their twomonth-old child, L.S., was removed from their care for seven months as a result of a
misdiagnosis of shaken baby syndrome. On January 28, 2014, the Lancaster County

1. The Lancaster County Defendants are: Lancaster County, and Karen Garber, Amber
Redcay, Sarah Hasselback, Susan Murray, Emily Heugel, and Robin Boyer; all of whom
are employed at the Lancaster County Children and Youth Services Agency.

Defendants filed a motion to dismiss for failure to state a claim. (Doc. 8). For the
reasons that follow, we will grant the motion in part, and deny it in part.
II.

Background
The following facts are set forth in Plaintiff’s complaint and are taken as

true, as they must be when considering a motion to dismiss, Fowler v. UPMC Shadyside,
578 F.3d 203, 210 (3d Cir. 2009): L.S. was born in September 2011 to Plaintiff Alisha
Torres. (Doc. 1, ¶ 20). Torres was administered oxytocin during labor to augment her
contractions. (Doc. 1, ¶ 20). At birth, L.S. presented with a rare complication, and
Plaintiffs later learned that oxytocin should not be administered during these types of
births. (Doc. 1, ¶ 23). Plaintiffs took L.S. to a pediatrician for three check-ups, and no
evidence of abuse was ever noted. (Doc. 1, ¶¶ 26-28). On November 29, 2011,
Plaintiffs took L.S. to the pediatrician because she was “sneezing, not eating, [and]
vomiting.” (Doc. 1, ¶ 29). The pediatrician diagnosed L.S. with being overfed. (Doc. 1, ¶
29). A few days later, on December 2, Plaintiffs took L.S. to the pediatrician for her twomonth-old check-up. This time, L.S. was “staring into space and less interactive.” (Doc.
1, ¶ 30). Her head circumference, which had steadily measured in the 90th to 98th
percentiles compared to other children her age, now measured well above the 98th
percentile. (Doc. 1, ¶¶ 26, 28, 30). At the pediatrician’s recommendation, Plaintiffs
immediately took L.S. to the Ephrata Community Hospital, and a CT scan was
performed. (Doc. 1, ¶ 32). The CT scan revealed subdural hematomas or hygromas,
but no skull fractures. (Doc. 1, ¶ 32). Defendant Karen Garber, an intake case worker at

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Lancaster County CYS, met with Plaintiffs and told them that if they would not agree to
an “Immediate Preliminary Safety Plan,” L.S. would be placed in foster care. (Doc. 1, ¶
34). The safety plan, which designated Plaintiffs as alleged perpetrators of child abuse,
provided that neither parent would have unsupervised contact with L.S. (Doc. 1, ¶ 3435). Plaintiffs were afforded no opportunity to contest the safety plan. (Doc. 1, ¶ 36).
Defendant Garber requested that Plaintiff Seldomridge submit to an interview with a
police detective, but he declined. (Doc. 1, ¶ 38).
L.S. was then transferred to PSHMC, and at 9:07 p.m. on December 2,
Defendant Jonas Sheehan, M.D., issued a neurosurgery report recommending an “NAI
[non-accidental injury] w/u [work up].” (Doc. 1, ¶ 39). At 9:43 p.m., Defendant Dorothy
Rocourt, M.D., issued a pediatric surgery report recommending a “Child Safety consult”
and a skeletal survey. (Doc. 1, ¶ 41). Around 10:30 p.m., Defendant Kathryn Crowell,
M.D., interviewed Plaintiffs as part of the Child Safety Team consultation, and
subsequently issued a report that also recommended a skeletal survey. (Doc. 1, ¶ 4344). On December 3, Defendant Joel Weinstein, M.D., observed retinal hemorrhages
and retinoschisis in L.S.’s eyes, which he reported were “highly suggestive of repetitive
shaking injury and would be extremely rare in any other setting.” (Doc. 1, ¶ 51). A
skeletal survey was performed on L.S., but no evidence of fractures were found. (Doc.
1,¶ 59). An MRI performed on L.S. revealed a bilateral subdural hematoma. (Doc. 1, ¶
60). Defendant Andi Taroli, M.D., Director of the PSHMC Child Safety Team, was also

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consulted. She reported that L.S.’s injuries were consistent with shaking, but that
Plaintiffs had denied shaking the baby. (Doc. 1, ¶¶ 63-64).
On December 6, 2011, Defendant Mark Dias, M.D., surgically drained
L.S.’s subdural fluids. (Doc. 1, ¶ 71). On December 9, Defendants Garber, Redcay, and
Boyer again threatened to place L.S. in foster care if Plaintiffs would not agree to a
“Placement Safety Plan.” (Doc. 1, ¶ 72-73). That plan provided that Plaintiffs would
have two hours of supervised contact with L.S. per day, but prohibited them from having
ongoing contact with her. (Doc. 1, ¶ 72).
On December 11, 2011, L.S. presented with new areas of subdural
bleeding and a depressed fontanel, which, Plaintiffs allege, confirmed that her injuries
were chronic in nature and not the result of shaking. (Doc. 1, ¶ 76). On December 13,
2011, L.S. was discharged but Plaintiffs were not permitted to take her home because
the safety plan was still in place. (Doc. 1, ¶¶ 78, 81).
Within 30 to 60 days of December 2, 2011, Defendants Garber, Redcay,
Boyer, Hasselback, Murray, Huegel, Taroli, Crowell, Weinstein, and Dias participated in a
Child Safety Team meeting concerning the abuse allegations against Plaintifffs. (Doc. 1,
¶ 84). On March 5, 2012, Plaintiffs were notified in writing that Defendants Garber and
Redcay filed an administrative report listing them as perpetrators of abuse. (Doc. 1, ¶
85). The notice contained information about how Plaintiffs could obtain administrative
review of the report and request its expungement. (Doc. 1, ¶ 86). On March 21, 2012,
Plaintiffs requested a hearing. (Doc. 1, ¶ 87).

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Meanwhile, the safety plan was extended on April 19, 2012, because
Plaintiffs had not completed a required parenting program. (Doc. 1, ¶ 88). On July 12,
2012, L.S. was permitted to return home, subject to scheduled and unscheduled visits by
Lancaster County CYS employees. (Doc. 1, ¶ 94). The safety plan was lifted entirely on
September 12, 2012. (Doc.1, ¶ 96). Five months later, on January 14, 2013, the
Pennsylvania Department of Public Welfare conducted a hearing to determine whether
the report against Plaintiffs should be expunged. (Doc. 1, ¶ 110). After finding that a
reasonable person would not have concluded that L.S.’s injuries were the result of
abuse, the report was expunged. (Doc. 1, ¶¶ 113-116).
Pursuant to Pennsylvania law, doctors and other professionals who
investigate and report child abuse are immune from civil suit. (Doc. 1, ¶ 106). None of
the doctors that treated L.S. notified Plaintiffs that they were immune from civil liability.
(Doc.1, ¶¶ 40, 42,46, 49, 53, 70).
III.

Discussion
A. Standard of Review
Rule 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim

upon which relief can be granted.” Under Rule 12(b)(6), we 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.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting
Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint

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need only contain “a short and plain statement of the claim,” FED. R. CIV. P. 8(a)(2), and
detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d. 929 (2007), a complaint must plead
“enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556). “[L]abels and
conclusions” are not enough, and a court “‘is not bound to accept as true a legal
conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555 (quoted case
omitted).
In resolving a motion to dismiss, we thus “conduct a two-part analysis.”
Fowler, supra, 578 F.3d at 210. First, we separate the factual elements from the legal
elements and disregard the legal conclusions. Id. at 210-11. Second, we “determine
whether the facts alleged in the complaint are sufficient to show that the plaintiff has a
‘plausible claim for relief.’” Id. at 211 (quoted case omitted).
B. Procedural Due Process Claims (Counts I and III)
Plaintiffs allege that their procedural due process rights were violated when
Defendants threatened to place L.S. in foster care if Plaintiffs refused to agree to the
safety plan. (Doc. 1, ¶ 121(I)). Because the safety plan interfered with Plaintiffs’ rights to
the custody and care of L.S., Plaintiffs claim that procedural safeguards were required.

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Defendants argue that the plan was voluntary, and that Plaintiffs could have rejected the
plan and elected to participate in a custody hearing.
This Court has held on two prior occasions that a parent’s procedural due
process rights are violated when they are coerced into signing a safety plan under the
threat of losing custody of their children. See Starkey v. York County, No. 1:11-cv-981,
2012 WL 9509712 (M.D. Pa. Dec. 20, 2012); Isbell v. Bellino, 962 F. Supp. 2d 738 (M.D.
Pa. Aug. 27, 2013). Like the plaintiff-parents in Starkey and Isbell, Plaintiffs allege they
were given no instruction as to how they could challenge the safety plan, or whether they
even had a right to challenge the plan. See Starkey, 2012 WL 9509712 at *11-*12;
Isbell, 962 F. Supp. 2d at 753. Instead, they were told that if they refused to sign the
agreement, L.S. would be placed in foster care. The Third Circuit has called this type of
action by county employees “blatantly coercive,” and has observed that removing a child
from a parent’s care without providing procedural safeguards “raises a procedural due
process issue.” Croft v. Westmoreland Cnty. Children & Youth Servs., 103 F.3d 1123,
1125, 1125 n.1 (3d Cir. 1997). Accordingly, Plaintiffs have stated a plausible claim for
deprivation of their procedural due process rights. The motion to dismiss Counts I and III
is denied.
C. Failure to Train Claim
Plaintiffs allege a claim against Defendants for “failing to train its
employees that, when an employee coerces a safety plan, due process considerations
are triggered.” (Doc. 1, ¶ 121(I)). In order to assert such a claim, Plaintiffs must show

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deliberate indifference on the part of the municipality or its officer. Starkey, 2012 WL
9509712 at *14. Plaintiffs must demonstrate that: “(1) municipal policymakers know that
employees will confront a particular situation; (2) the situation involves a difficult choice . .
. ; and (3) the wrong choice by an employee will frequently cause a deprivation of
constitutional rights.” Id. (internal quotation omitted) (citing Carter v. City of Phila., 181
F.3d 339, 357 (3d Cir. 1999)). To survive a motion to dismiss, plaintiffs must identify the
specific training that the municipality should have offered, and demonstrate that such
training was never provided. See Pahler v. City of Wilkes-Barre, 207 F. Supp. 2d 341,
353 (M.D. Pa 2001) (Nealon, J.). Plaintiffs have sufficiently pleaded that information
here. The complaint alleges that Lancaster County CYS case workers, supervisors, and
administrators received training through the University of Pittsburgh’s Child Welfare
Training Program. (Doc. 1, ¶ 103). That program allegedly did not provide training
regarding the due process concerns that are triggered when a child is removed from its
parents’ care pursuant to a safety plan. (Doc. 1, ¶ 104). Accordingly, Plaintiffs have
stated a plausible claim against Defendants for failure to train its personnel.
D. Conspiracy Claim (Count V)
Plaintiffs bring a Section 1983 conspiracy claim against the individual
Lancaster Defendants for “conspiring to deny Plaintiffs their right to familial association
and right to the care, custody and control of L.S. . . . .” (Doc. 1, ¶ 121(V)). To properly
state a Section 1983 conspiracy claim, Plaintiffs must show that “two or more
conspirators reached an agreement to deprive him or her of a constitutional right ‘under

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color of law.’” Luck v. Mount Airy No. 1, LLC, 901 F. Supp. 2d 547, 559 (M.D. Pa. 2012)
(Munley, J.) (citing Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 700 (3d Cir.
1993)). “A plaintiff must make specific factual allegations of combination, agreement, or
understanding among all or between any of the defendants to plot, plan or conspire to
carry out the alleged chain of events.” Marchese v. Umstead, 110 F. Supp. 2d 361, 371
(E.D Pa. 2000).
Plaintiffs fail to state a Section 1983 conspiracy claim. The complaint is
devoid of any allegations that Defendants agreed to act in concert for the purpose of
depriving Plaintiffs of their constitutional right to the care, custody and control of their
child. Accepting all of the pleaded facts as true, it is clear that Defendants acted for the
lawful purpose of investigating a case of suspected child abuse. Although Plaintiffs
contend that Pennsylvania law regarding child abuse investigations creates “a conspiracy
among [Children and Youth Services], law enforcement and medical personnel[,]” this is
a public policy argument that does nothing to substantiate the claim at hand. Because
Plaintiffs fail to plead facts supporting a plausible claim for conspiracy, we dismiss Count
V.
E. Frivolous Claims
Plaintiffs allege several frivolous claims that Defendants move to dismiss.
First, Plaintiffs attempt to bring a claim pursuant to Article I of the Pennsylvania
Constitution. (Doc. 1, ¶ 121). Defendants correctly assert that this claim fails because
Pennsylvania does not recognize actions for money damages for violations of the state

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constitution. (Doc. 14 at 16). See Colvin v. Mikolic, No. 4:10-cv-1820, 2011 WL
1329188, at *6 n.3 (M.D. Pa Apr. 5, 2011) (citing R.H.S. v. Allegheny Cnty. Dept. of
Human Servs., 936 A.2d 1218, 1226 (Pa Commw. Ct. 2007)). This claim will be
dismissed.
Plaintiffs allege that Defendants violated their constitutional rights by
“having a policy of not notifying parents who are the subject of a child abuse investigation
that physicians participating in the . . . investigation are immune from civil suit . . . .”
(Doc. 1, ¶ 121(II, IV)). Defendants argue that these claims should be dismissed because
they have no basis in law. We agree. The complaint fails to identify which Constitutional
provision the Defendants allegedly violated, and this Court is not aware of any such
constitutional right. Counts II and IV will be dismissed.
Plaintiffs also bring a claim pursuant to 42 U.S.C. § 1981. (Doc. 1, ¶ 121).
To state a claim under Section 1981, a plaintiff must allege “(1) [that plaintiff] is a
member of a racial minority; (2) intent to discriminate on the basis of race by the
defendant; and (3) discrimination concerning one or more of the activities enumerated in
the statute . . . .” Brown v. Phillip Morris, Inc., 250 F.3d 789, 797 (3d Cir. 2001).
Plaintiffs have failed to allege any facts that might support a claim under Section 1981.
Plaintiffs also allege that Defendants violated their First Amendment rights,
but fail to specify which right was allegedly violated. (Doc. 1, ¶ 121). Because Plaintiffs
make no further allegations to support this claim, it cannot stand.

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The complaint also contains a Fourth Amendment claim. While the
complaint fails to provide any specifics on this claim, Plaintiffs’ response to the motion to
dismiss argues that the testing performed on L.S. to investigate possible abuse
constituted an unreasonable search. (Doc. 16 at 18). According to the complaint, the
Lancaster County Defendants were not involved in this investigatory testing, and
therefore, the Fourth Amendment claim against these defendants must fail.
Plaintiffs’ Fifth Amendment claim will also be dismissed. “The Due Process
Clause of the Fifth Amendment applies to actions of the federal government, while the
Due Process Clause of the Fourteenth Amendment applies to state actors.” Rittenhouse
Entertainment, Inc. v. City of Wilkes-Barre, 861 F. Supp. 2d 470, 486 (M.D. Pa. 2012)
(Caputo, J.). Because Plaintiffs do not allege the involvement of any federal actors, they
cannot assert a claim under the Fifth Amendment.
Finally, the Sixth and Seventh Amendment claims must be dismissed.
Plaintiffs were never criminally prosecuted, and thus, they could not have suffered a
violation of their Sixth Amendment rights. Similarly, Plaintiffs have alleged no facts to
support the contention that their Seventh Amendment right to a jury trial has been
violated.
F. Punitive Damages
The Lancaster County Defendants also move to dismiss Plaintiffs’ claims
for punitive damages. Defendants correctly observe that “punitive damages are not
available in suits against municipalities under 42 U.S.C. § 1983.” Rogers v. Mount Union

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Borough by Zook, 816 F. Supp. 308, 316 (M.D. Pa.1993). In their response to the
motion to dismiss, Plaintiffs agree that punitive damages may not be appropriate.
Accordingly, the claim for punitive damages against Lancaster County is unavailing.
III.

Conclusion
For the reasons above, the motion to dismiss will be granted in part and

denied in part. Leave to amend the dismissed claims will be denied as futile. See
Grayson v. Mayview State Hosp., 293 F.3d 103 (3d Cir. 2002) (allowing courts to deny
leave to amend if such an amendment would be futile). An appropriate order follows.

/s/William W. Caldwell
William W. Caldwell
United States District Judge

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