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

Filing 24

MEMORANDUM re dfts' MOTION to Dismiss 9 filed by Jonas M. Sheehan, Mark S. Dias, M.D., Dorothy V. Rocourt, Joel M. Weinstein, Andi C. Taroli, Kathryn R. Crowell, M.D., Penn State Hershey Medical Center (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 06/12/14. (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 Penn State Hershey

Medical Center (“PSHMC”) 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, 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 31, 2014, the PSHMC Defendants

1. The PSHMC Defendants are: the Penn State Hershey Medical Center, Kathryn
Crowell, M.D.; Andi Taroli, M.D.; Dorothy Rocourt, M.D.; Joel Weinstein, M.D.; Jonas
Sheehan, M.D.; and Mark Dias, M.D.

filed a motion to dismiss for failure to state a claim. (Doc. 9). For the reasons that follow,
we will grant the motion.
II.

Background
The following facts are set forth in Plaintiffs’ 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, known as
“compound birth presentation,” and Plaintiffs later learned that oxytocin should not be
administered during births involving this complication. (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 a 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 two-month-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

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Garber, an intake case worker at 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, ¶¶ 34-35). Plaintiffs allege that they 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,
2011, 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. State Action Doctrine
In order to state a claim under Section 1983, Plaintiffs must allege that they
were deprived of a constitutional right by someone acting under color of state law. West
v. Atkins, 487 U.S. 42, 48 (1988). Defendants argue that Plaintiffs’ claims should be
dismissed because PSHMC and its physicians are not state actors, and thus not liable

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under 42 U.S.C. § 1983. The Third Circuit has announced three tests that can be used
to determine whether an individual is a state actor:
(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 ‘[s]tate 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). This court has already
held--in a case bearing a striking resemblance to the one before us--that PSHMC
physicians who participate in child abuse investigations qualify as state actors under the
third prong of Kach. See Billups v. Penn State Milton S. Hershey Med. Ctr., 910 F.
Supp. 2d 745, 757 (M.D. Pa. 2012) (Kane, J.). The Billups court reasoned that these
doctors “do not provide medical care to patients but, rather, ‘conduct an investigation
into, and render a conclusion about, whether suspected child abuse is, in fact, actual
child abuse.’” Id. Defendants point out that a year prior to the Billups decision, a
different district court came to the opposite conclusion, holding that a physician’s
involvement in a child abuse investigation does not constitute state action. See Dennis
v. DeJong, 867 F. Supp. 2d 588, 647 (E.D. Pa. 2011). Because Billups is the more
recent of the two decisions, and so factually similar to the case before us, we will follow
the reasoning of that court. Here, Plaintiffs allege that Drs. Sheehan, Rocourt, Crowell,
Weinstein, Taroli, and Dias examined L.S., conducted testing, and rendered opinions for
the primary purpose of investigating suspected child abuse–not providing medical

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treatment. (Doc. 1, ¶¶ 39-80). Based on these allegations, we find that the PSHMC
Defendants qualify as state actors.
C.

Claims Based on Defendants’ Compliance with Pennsylvania’s Child
Protective Service Law (“CPSL”)
The complaint makes a slew of allegations against the PSHMC Defendants

based upon their actions during the child abuse investigation. (Doc. 1, ¶ 120(VI-XIII)).
For example, Plaintiffs bring claims against Defendants for “having a policy of initiating
and requiring medical doctors to refer patients suspected [of] being abused to the
PSHMC Child Safety Team for a child abuse investigation”; for “failing to notify Plaintiffs
that PSHMC doctors who elect to participate in the child abuse investigation are immune
from civil suit”; for “failing to believe the history from Plaintiffs that L.S. suffered no
inflicted trauma”; and for “breaching [their] fiduciary duty to keep information
confidential.” (Doc. 1, ¶ 120(VI-XIII)). The complaint fails to specify how these actions
violate federal statutory or constitutional law. For this reason, Defendants argue that
Plaintiffs fail to state a claim on which relief can be granted.
Pennsylvania’s CPSL requires a physician to report suspected child abuse
when he/she “has reasonable cause to suspect, on the basis of medical, professional or
other training and experience, that a child . . . is a victim of child abuse.” 23 Pa. C.S.A. §
6311(a). Failure to report suspected abuse is a criminal offense. Id. § 6319. “Upon
receipt of a report of suspected child abuse . . . the county agency shall immediately
commence an investigation . . . .” Id. § 6368(b). The physician may order “a radiological
examination and other medical tests[.]” Id. § 6314. The law also provides that “the
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privileged communication between any professional person required to report and the
patient or client of that person shall not apply to situations involving child abuse . . . .” Id.
§ 6311(b). The CPSL does not require parental consent to initiate an investigation; nor
does it require healthcare professionals to notify parents of their statutory immunity from
suit. Accordingly, because Defendants acted in compliance with Pennsylvania law,
Plaintiffs cannot state a claim against PSHMC or its physicians for reporting suspected
abuse, revealing confidential information, failing to obtain Plaintiffs’ consent to the
investigation, and acting outside the scope of medical treatment. These claims will be
dismissed with prejudice.
D.

Due Process Claims
Plaintiffs claim that Defendants violated their Fourteenth Amendment

rights, but provide no further explanation. (Doc. 1, ¶ 120). For the purposes of this
motion, Defendants assume that Plaintiffs are asserting substantive and procedural due
process claims, and argue that both claims fail. Plaintiffs’ response only addresses the
procedural due process claim. Therefore, we will dismiss the substantive due process
claim without prejudice, and consider the procedural due process claim.
Plaintiffs argue that their right to procedural due process was violated
when they were coerced into agreeing to a safety plan that removed L.S. from their care.
We agree with the PSHMC Defendants that, according to the complaint, only the

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Lancaster County Defendants2 were involved in the implementation of the safety plans.
The complaint states that, “[f]or over 9 months . . . Defendants Garber, Redcay,
Hasselback, Murray, Boyer, Huegel and Lancaster County failed to provide Plaintiffs with
any due process regarding any safety plan . . . .” (Doc. 1, ¶ 98). The PSHMC
Defendants are not mentioned in these allegations. Therefore, this claim cannot stand.
Plaintiffs also allege that they were deprived of due process during their
interview with Defendant Crowell, which was part of the child abuse investigation.
Plaintiffs articulate a lengthy and far-fetched argument that this encounter was a
“custodial interrogation” (Doc. 19 at 17), and therefore, they were entitled to procedural
protections similar to those described by the Supreme Court in Miranda v. Arizona, 384
U.S. 436 (1966). Specifically, Plaintiffs claim that they were entitled to: a right to
counsel; a right to remain silent; a right to know that the PSHMC physicians were
revealing confidential information; a right to know that the investigation was ongoing; a
right to know that the PSHMC physicians were immune from civil suit; and a right to
know they could obtain a second opinion. (Doc. 19 at 19-20).
First, the complaint does not allege that law enforcement was present
during Plaintiffs’ interview with Defendant Crowell on December 2, 2011. (Doc. 1, ¶ 43).
Because Dr. Crowell was involved as a physician during the events at issue, her meeting
with Plaintiffs could not have been a custodial interrogation. Although Plaintiffs’ brief

2. The Lancaster County Defendants are: Lancaster County, Karen Garber, Amber
Redcay, Sarah Hasselback, Susan Murray, Emily Heugel, and Robin Boyer.
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claims that law enforcement was involved, we are bound to the allegations in the
complaint.3 Second, while courts have held that some procedural due process must be
afforded to parents faced with the implementation of a safety plan (see, e.g., Starkey v.
York Cnty., No. 11-cv-981, 2012 WL 9509712, *10-11 (M.D. Pa. Dec. 20, 2012) (Jones,
J.)), Plaintiffs fail to cite any legal precedent supporting the proposition that they are
entitled to protections such as those described supra. Last, we have already explained
that the PSHMC Defendants were not involved in the imposition of the safety plan, and
thus, were in no position to offer procedural protections. For these reasons, we will
dismiss the procedural due process claim with prejudice.
E.

Miscellaneous Constitutional Claims
Plaintiffs allege a host of miscellaneous state and federal constitutional

claims that Defendants move to dismiss. 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 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.

3. In fact, the complaint alleges that Plaintiff Seldomridge freely declined to speak with a
police officer when Defendant Garber asked him to submit to an interview on December
2. (Doc. 1, ¶ 38).
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Allegheny Cnty. Dept. of Human Servs., 936 A.2d 1218, 1226 (Pa. Commw. Ct. 2007)).
This claim will be dismissed.4
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 concerning the race of any party to this lawsuit,
and admit that they are not able to meet the pleading standard for this claim. (Doc. 19
at 25 n.6). Therefore, we will dismiss this claim without prejudice to Plaintiff filing an
amended complaint alleging facts that support a claim of racial animus.
Plaintiffs 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.
The complaint also contains Fourth, Fifth, Sixth, and Seventh Amendment
claims. (Doc. 1, ¶ 120). Defendants argue that these claims must be dismissed
because Plaintiffs were never criminally prosecuted, and therefore, Plaintiffs’ right to be
free from unreasonable searches, right against self incrimination, right to counsel, and
right to a jury trial were never triggered. Plaintiffs fail to respond to this argument.

4. Because amendment would be futile, this claim will be dismissed with prejudice. 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).
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Because Plaintiffs admit in the complaint that no criminal charges were filed against
them (Doc 1, ¶ 96), these claims are baseless, and they will be dismissed.5
Additionally, Plaintiffs allege a claim for conspiracy under 42 U.S.C. § 1985.
To properly state such a claim, Plaintiffs must show that “two or more conspirators
reached an agreement to deprive him or her of a constitutional right ‘under 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). This claim also fails. The complaint does not allege that Defendants agreed to
act in concert for the purpose of depriving Plaintiffs of their constitutional rights.
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 the establishment of a Child Safety Team at PHSMC is “a conspiracy mandated by
Pennsylvania law,” this is a public policy argument that does nothing to substantiate the
claim at hand. Plaintiffs have failed to state a plausible claim for conspiracy, and it will
be dismissed.6

5. These claims will also be dismissed with prejudice because amendment would be
futile. See Grayson, supra note 3.
6. This claim will be dismissed with prejudice because amendment would be futile. See
Grayson, supra note 3.
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F.

Punitive Damages
Because all of Plaintiffs’ claims against the PSHMC Defendants will be

dismissed, we will also dismiss the claim for punitive damages.
III.

Conclusion
For the reasons above, the motion to dismiss will be granted. An

appropriate order follows.
/s/William W. Caldwell
William W. Caldwell
United States District Judge

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