Abrantes v. Commonwealth of Pennsylvania et al

Filing 29

MEMORANDUM re MOTION to Dismiss 19 filed by Messick, Stauffer, Whitehurst, County of York Office of Children, Youth & Families and MOTION to Dismiss 17 filed by Smith (Order to follow as separate docket entry) Signed by Honorable Sylvia H. Rambo on 8/28/24. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GRACE ABRANTES,

: Civil No. 1:23-CV-01324
:
Plaintiff,
:
:
v.
:
:
COLLEEN SMITH,
:
COMMONWEALTH OF
:
PENNSYLVANIA DHS REGION
:
PROGRAM REPRESENTATIVE, et :
al.,
:
:
Defendants.
: Judge Sylvia H. Rambo
MEMORANDUM
Before the court are two motions to dismiss the amended complaint for failure
to state a claim filed by defendants (1) York County, through its subunit Office of
Children, Youth, and Families (“CYF”), CYF Administrator Tanya Stauffer, CYS
Caseworker Carolyn Whitehurst, and CYF Caseworker Supervisor Melissa Messick
in their individual and official capacities (collectively, the “County Defendants”)
and (2) Colleen Smith in her individual capacity as the Commonwealth of
Pennsylvania’s Department of Human Services (“DHS”) Regional Program
Representative. (Docs. 17, 19.) Plaintiff Grace Abrantes (“Plaintiff”) alleges, among
other things, that her First and Fourteenth Amendment rights to familial association,
due process, and equal protection were violated when her adopted children were
temporarily removed from her home during an investigation into alleged, but

1

ultimately unfounded, child abuse. For the reasons set forth below, the motion will
be granted in part and denied in part.
I.

BACKGROUND
Plaintiff is an African American Latina with experience working in youth

facilities in York, Pennsylvania. (Doc. 15 ¶¶ 5, 29-30.) By February 2021, she had
worked full time at a youth residential facility for seven years and part time at
another youth facility for around one year. (Id. ¶¶ 29-30.) Around the same time,
Plaintiff had also received clearances to open her own youth facility, with an
expected opening time of April 2021 after she submitted a proposed budget and
passed inspection. (Id. ¶¶ 32-33.)
Plaintiff had two adopted children, ages three and five, to whom she had
provided care for three years and the adoption of whom was finalized in December
2020. (Id. ¶ 18.) Around February 16, 2020, a teacher found a mark on the younger
child’s arm and contacted CYF. (Id. ¶ 20.) The same day, Whitehurst and Messick, 1
with the assistance of a police officer and the apparent approval of Stauffer, removed
the children from Plaintiff’s home pending an investigation. (Id. ¶ 21.)
According to Plaintiff, she was not provided with notice of the accusations
against her and was not provided with an opportunity to be heard prior to the removal

1

Many of Plaintiff’s averments also include that Whitehurst and Messick may have been acting
with another unidentified, and unnamed (even as a John Doe), CYS employee.
2

of her children, or after the removal of her children, and there was no substantial
evidence of child abuse or neglect. (Id. ¶¶ 22, 24, 36.) Beginning on the day her
children were taken and continuing through October 2022, and despite the lack of
evidence, the County Defendants and Smith communicated to Plaintiff’s employers
and the agency that would license her prospective youth facility that she was being
investigated for child abuse. (Id. ¶¶ 22, 25.) As a result of this communication,
Plaintiff was placed on leave from her two jobs at the youth facilities and was unable
to open her own facility in April 2021 as planned. (Id. ¶¶ 31-34.)
CYF informed Plaintiff that it had ninety days to investigate the alleged child
abuse. (Id. ¶ 35.) In April 2021, however, the County Defendants returned the
children to Plaintiff’s care on the condition that Plaintiff submit to their terms, which
included completing “Love and Logic” parenting classes and using Pressley Ridge
in-home services. (Id. ¶¶ 36-37.) These conditions were apparently met around
October 2021. (Id. ¶ 37.) Plaintiff never received a hearing prior to the removal of
her children, and she was never informed by CYF that she could have refused its
conditions, had the right to request a hearing and present a defense, and had the right
to be represented by an attorney at such a hearing. (Id. ¶¶ 38, 41.) Further, the County
Defendants did not inform Plaintiff that, unless the children were in imminent danger
of abuse, Pennsylvania law requires a court order prior to removing children, that a
state trooper must remove them, and that a hearing must be held within seventy-two
3

hours of removal. (Id. ¶¶ 42-43.) Plaintiff further alleges that the investigation by
the County Defendants was biased and motivated by discrimination based on her
race. (Id. ¶¶ 27, 72.)
On August 9, 2021, Plaintiff received a notice from Smith that her name was
listed on the statewide database (the “ChildLine Registry”) of persons “indicated”
in child abuse. (Id. ¶ 48.) Included in this notice was a June 9, 2021, letter from
Smith to a nonparty CYF employee notifying CYF that Plaintiff was indicated for
child abuse. (Id. ¶ 49.) The notice also informed Plaintiff of her right to appeal her
inclusion in the ChildLine Registry. (Id. ¶ 50.) Plaintiff exercised this appeal right
on August 15, 2021. (Id. ¶ 56.) On August 17, 2021, DHS scheduled a hearing for
March 8, 2022, before the Bureau of Hearings and Appeals. (Id. ¶ 57.) Around
October 2022, Plaintiff received a favorable decision from the Bureau, and the
indicated finding of child abuse was reversed and her name removed from the
ChildLine Registry. (Id. ¶ 58.)
Plaintiff alleges that she lost income due to being placed on leave from her
jobs, suffered a loss of around $15,000 for furniture she purchased for her youth
facility, $1,440 for storage expenses, and around $8,000 in legal expenses for her
appeal.
Plaintiff then initiated this suit by the filing of a complaint, and thereafter filed
an amended complaint. (Docs. 1, 15.) In the amended complaint, Plaintiff alleges
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the County Defendants and Smith (1) violated her procedural due process rights
under the Fourteenth Amendment and the Pennsylvania Constitution (Count I); (2)
violated her substantive due process and equal protection rights under the Fourteen
Amendment and the Pennsylvania Constitution (Count II); violated her First
Amendment right to familial association; and (4) maliciously abused process. Both
the County Defendants and the Commonwealth Defendants have filed a motion to
dismiss the amended complaint. (Docs. 17, 19.) The motions have been fully briefed
and are ripe for review.
I.

STANDARD OF REVIEW
To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege

“factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). “When
reviewing a 12(b)(6) motion, we ‘accept as true all well-pled factual allegations in
the complaint and all reasonable inferences that can be drawn from them.’” Estate
of Ginzburg by Ermey v. Electrolux Home Prods., Inc., 783 F. App’x 159, 162 (3d
Cir. 2019) (quoting Taksir v. Vanguard Grp., 903 F.3d 95, 96–97 (3d Cir. 2018)).
The facts alleged must be “construed in the light most favorable to the plaintiff.” In
re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010) (internal
quotations, brackets, and ellipses omitted). But “[t]he court is not required to draw
5

unreasonable inferences” from the facts. 5B Charles A. Wright & Arthur R. Miller,
Federal Practice & Procedure § 1357 (3d ed. 2004).
The Third Circuit has detailed a three-step process to determine whether a
complaint meets the pleading standard. Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir.
2014). First, the court outlines the elements a plaintiff must plead to state a claim for
relief. Id. at 365. Second, the court must “peel away those allegations that are no
more than conclusions and thus not entitled to the assumption of truth.” Id. Third,
the court “look[s] for well-pled factual allegations, assume[s] their veracity, and then
‘determine[s] whether they plausibly give rise to an entitlement to relief.’” Id.
(quoting Iqbal, 556 U.S. at 679). The last step is “a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.” Id.
II.

DISCUSSION
For clarity’s sake, the court will summarize the different aspects of Plaintiff’s

multifaceted and somewhat overlapping claims. Plaintiff alleges that her procedural
due process rights were violated when (1) her children were taken; (2) her employers
and the youth licensing agency were contacted; (3) her children were returned to her
under coercive circumstances; and (4) her name placed on the ChildLine Registry as
an indicated child abuser, all without notice or a hearing prior to each alleged
deprivation. (Doc. 15 ¶¶ 73-79.) She alleges these same actions violated her
substantive due process rights and constituted a malicious abuse of process (Id. ¶¶
6

80-84.) Plaintiff further alleges that her equal protection rights were violated because
the actions or inactions by Defendants were motivated by discrimination. (Id. ¶ 72.)
Finally, she alleges that her First Amendment right to familial association was
violated when (1) she was indicated for child abuse; (2) her employers were
contacted; and (3) she was placed on the ChildLine Registry because the alleged
policies adopted, implemented, and enforced by the Defendants were not narrowly
tailored to protect children. (Id. ¶¶ 85-86, 87-93.)
The County Defendants move to dismiss Plaintiff’s amended complaint in its
entirety on the grounds that Plaintiff (1) insufficiently alleges personal involvement
by the individual defendants; (2) fails to state claims under the First and Fourteenth
Amendments; (3) cannot obtain monetary relief under the Pennsylvania
Constitution; (4) fails to state a claim for malicious abuse of process; and (5) seeks
relief against the individual defendants who are entitled to qualified immunity. 2
Similarly, Smith moves to dismiss the amended complaints on the grounds that
Plaintiff (1) does not sufficiently allege her personal involvement; (2) fails to state
due process violation; and (3) seeks damages against her where she is entitled to
qualified immunity. The court will address each in turn.

2

The County Defendants additionally move to dismiss CYF as a party, arguing that as a
subdivision of a larger government entity, it is not separately subject to suit from York County.
(Doc. 20 p. 3-4.) The court finds this unnecessary, as the amended complaint appropriately states
that “Defendant is the County of York . . .” and only one York County entity is listed as a defendant
on the docket.
7

A. Personal Involvement
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege “the violation
of a right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under of state law.”
Rehburg v. Paulk, 566 U.S. 356, 361 (2012). A defendant in a Section 1983 claim
“must have personal involvement in the alleged wrongs to be liable” and “cannot be
held responsible for a constitutional violation which he or she neither participated or
approved.” Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007). Personal
involvement may further be demonstrated by “personal direction” or “actual
knowledge and acquiescence.” Rode v. Dellarciprate, 845 F.2d 1195, 1208 (3d Cir.
1988). In both cases, the allegations must be stated with particularity. Id. In the case
of a supervisor, such as Stauffer, a supervisor’s “participation in after-the-fact
review of alleged wrongdoing, or failure to take action to prevent repetition of
misconduct, is insufficient to establish personal involvement.” Odi v. Alexander 378
F. Supp. 3d 365, 379 (E.D. Pa. 2019).
Here, and without regard to the merits of her claims, Plaintiff has sufficiently
alleged personal involvement of the Defendants. She alleges that Whitehurst and
Messick removed her children from her home under the direction of Stauffer and
that the County Defendants failed to provide her notice of the accusations against
her (Doc. 15 ¶¶ 21-22); that the County Defendants and Smith informed her current
8

and prospective employers that she was accused of child abuse without any evidence
supporting that accusation (id. ¶ 23); that she could no longer work at her current
employers because of the false accusations by the County Defendants; that she was
misled into accepting an agreement without being informed of her rights (id. ¶¶ 31,
36-39); and that Smith sent her a letter informing her that she was listed on
Pennsylvania’s ChildLine Registry as a perpetrator in an “indicated report of child
abuse” prior to having an opportunity to contest her inclusion in it (id. ¶¶ 49-51). For
each allegation, Plaintiff provides specific or generalized dates of the violation
where appropriate. (Id. ¶¶ 23-24, 36-37, 48-50, 56-58.)
In the case of Stauffer, a supervisor, Plaintiff does not appear to allege an
“after-the-fact” review of alleged wrongdoing, but rather that Stauffer actively
participated in the alleged violations through personal direction. With respect to
Smith, Plaintiff does not argue that Smith was acting as a supervisor, and thus her
citation to Odi does not support her defense that she was not personally involved.
Further, while Smith argues that she “[a]t most she signed a letter to Plaintiff and
CYF noting that following the CYF investigation the child abuse report against
plaintiff would be listed in the statewide databases as an indicated report” and that
she cannot be held personally liable for performing her statutorily described
ministerial duties (Doc. 18 p. 11), she does not provide any citation supporting her
contention that a state actor performing a ministerial action is exempt from liability
9

and, indeed, Plaintiff appears to suggest that Pennsylvania’s Child Protective
Services Law, which Smith was purportedly following, itself violates due process.
The court is thus satisfied that Plaintiff has sufficiently alleged Defendants’ personal
involvement as she has plead the necessary “who, what, when, where” to put the
Defendants on notice of the allegations against them.
B. Pennsylvania Constitutional Claims
Next, the County Defendants and Smith each move to dismiss Plaintiff’s
claims brought pursuant to the Pennsylvania Constitution on the basis that it does
not provide a cause of action for money damages. This is correct. The Pennsylvania
Supreme Court has held that Pennsylvania has no state law analog to Section 1983,
and absent such an analog, money damages are unavailable for state constitutional
violations. See Mount Airy #1, LLC v. Pa. Dep’t of Revenue, 154 A.3d 268, 280 n.
11 (Pa. 2016). Thus, these claims must be dismissed.
C. Due Process Claims
The Due Process Clause of the Fourteenth Amendment prohibits states from
“depriv[ing] any person of life, liberty, or property, without due process of law . . .
.” Steele v. Cicchi, 855 F.3d 494, 501 (3d Cir. 2017) (citing U.S. Const. amend.
XIV). The Due Process Clause contains both a procedural and a substantive
component. Id. (citing Cty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998).
The court will address each in turn.
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1. Procedural Due Process
To maintain a Section 1983 claim for a violation of procedural due process
claim, Plaintiff must show that (1) she was deprived of an individual interest that is
encompassed within the Fourteenth Amendment’s protection of “life, liberty, or
property,” and (2) the procedures Defendants made available to her did not provide
her with due process of law. Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d
Cir. 2006). “[T]he focus in procedural due process claims is on the adequacy of the
remedial procedure, and not on the government’s actual actions that allegedly
deprived the individual of his liberty of property interest.” Giuliani v. Springfield
Township, 726 Fed. App’x. 118, 122 (3d Cir. 2018) (citing K.S.S. v. Montgomery
Cnty. Bd. of Comm’rs, 871 F. Supp. 2d 389, 397-98 (E.D. Pa. 2012)). Thus, “when
a state affords a full judicial mechanism with which to challenge the administrative
decision in question, [it] provides adequate procedural due process, whether or not
the plaintiff avails him or herself to the provided appeal mechanism.” Id. (quoting
DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 597 (3d Cir. 1995) (internal
quotations omitted)). The liberty rights protected by procedural due process “may
arise from the Constitution itself, by reason of guarantees implicit in the word
‘liberty,’” or they “may arise from an expectation or interest created by state laws or
policies.” Steele, 855 F.3d at 507 (quoting Wilkinson v. Austin, 545 U.S. 209, 221
(2005).
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In the context of child abuse investigations, the Third Circuit has recognized
a “fundamental liberty interest of natural parents in the care, custody, and
management of their child.” Miller v. City of Philadelphia, 174 F.3d 368, 373 (3d
Cir. 1999). This liberty interest, however, “is limited by the compelling government
interest in the protection of children.” Croft v. Westmoreland County Child and
Youth Services, 103 F.3d 1123, 1125 (3d Cir. 1997). The Third Circuit in Croft
observed that separating a parent and child “during the pendency of child abuse
investigations absent any procedural safeguards raises a procedural due process
issue.” Croft, 103 F.3d at 1125 n.3. However, it also explained that a caseworker
could immediately remove a child if there is “some reasonable and articulable
evidence giving rise to a reasonable suspicion that a child has been abused or is in
imminent danger of abuse.” Id. at 1126. Having found a liberty interest in the care,
custody, and management of Plaintiff’s children, the next step is to determine what
process is due.
The Supreme Court has held that “due process, unlike some legal rules, is not
a technical conception with a fixed content unrelated to time, place and
circumstances,” but rather “is flexible and calls for such procedural protections as
the particular situation demands.” Gilbert v. Homar, 520 U.S. 924, 930 (1997)
(internal quotations and citations omitted). The court thus looks to the adequacy of

12

the procedures provided by Pennsylvania law given the particular situation as
Plaintiff alleges.
Pennsylvania’s Child Protective Services Law (“CPSL”) provides a
comprehensive scheme for reporting and investigating allegations of child abuse
within the Commonwealth. 23 Pa. C.S. § 6301, et seq. The CPSL provides that a
child may be taken into protective custody under six different circumstances. Id. §
6315(a)(1)-(6). Section 6315(a)(1) refers to another statute for taking children into
custody, that states in relevant part, “[a] child may be taken into custody: . . . (3) By
a law enforcement officer or duly authorized officer of the court if there are
reasonable grounds to believe that the child is suffering from illness or injury or is
in imminent danger from his surroundings, and that his removal is necessary.” 42
Pa. C.S. § 6324. Thus, it is plain under the statute and case law that Plaintiff cannot
maintain a procedural due process claim for the physical act of the County
Defendants taking her children without notice and opportunity to be heard, as it was
done pursuant to this provision and no pre-deprivation hearing is required.
However, the CPSL further provides:
(b) Duration of Custody. — No child may be held in protective custody
for more than 24 hours unless the appropriate county agency is
immediately notified that the child has been taken into custody and the
county agency obtains an order from a court of competent jurisdiction
permitting the child to be held in custody for a longer period. . . .
(c) Notice of Custody. (1) Except as provided in paragraph (2), an
individual taking a child into protective custody under this chapter shall
immediately, and within 24 hours in writing, notify the parent, guardian
13

or other custodian of the child of the whereabouts of the child, unless
prohibited by court order, and the reasons for the need to take the child
into protective custody and shall immediately notify the appropriate
county agency . . .
(d) Informal Hearing. — In no case shall protective custody under this
chapter be maintained longer than 72 hours without an informal hearing
under 42 Pa.C.S. § 6332 (relating to informal hearing). If, at the
hearing, it is determined that protective custody shall be continued and
the child is alleged to be without proper parental care or control or is
alleged to be a dependent child under 42 Pa.C.S. § 6302 (relating to
definitions), the county agency shall within 48 hours file a petition with
the court under 42 Pa.C.S. Ch. 63 alleging that the child is a dependent
child.
23 Pa. C.S. § 6315(b), (c), (d)
Considering Plaintiff’s allegations that she was not ever given a hearing,
apprised of her rights to an attorney, or notice of her rights generally prior to entering
into an agreement with the County Defendants for the return of her children, this
court has found that, under certain circumstances, the entry of a voluntary safety
plan may deprive a parent of their right to familial association. Isbell v. Bellino, 983
F. Supp. 2d 492, 501 (M.D. Pa. 2012). Further, the Third Circuit recently held that
a Delaware children and youth services caseworker was entitled to qualified
immunity for coercing a parent into signing a child safety agreement, framing the
right as “a parent presented with a child safety agreement has the right to consider
the agreement without being told that she faces the possibility that the state will
petition a court for an order to place the child in foster care unless she signs the
agreement.” Spahr v. Collins, 2024 U.S. App. LEXIS 20171 *6 (3d Cir. Aug. 9,
14

2024). The Court reasoned that informing a parent of the options, either a voluntary
agreement to place a child with another family member, or foster care, “and the legal
consequences thereof, is no more legally coercive than informing a criminal
defendant offered a plea agreement of the maximum penalty he faces for his crimes
absent the agreement.” Id. *7 (citing United States v. Green, 388 F.3d 918, 923 106
F. App’x. 358 (6th Cir. 2004). Here, however, the situation is different as Plaintiff
alleges that she was not presented with the alternative options prior to entering into
the agreement for the return of her children. The court sees this as a violation that is
“so obvious,” given the CPSL’s statutory scheme, as to make qualified immunity
unavailable for the County Defendants. Hope v. Pelzer, 536 U.S. 730, 741 (2002).
Regarding her inclusion in the ChildLine Registry, however, Plaintiff fails to
state a claim because the CPSL provides an appeal process, of which Plaintiff
successfully took advantage. Thus, the process worked precisely as intended, and
this aspect of Plaintiff’s procedural due process claim will be dismissed as to both
the County Defendants and Smith.
Related to her inclusion in the ChildLine Registry, Plaintiff alleges that her
reputation was damaged because Defendants informed her employers of her status
and because her residential youth facility license was denied. It is well-established,
however, that “reputation alone is not an interest protected by the Due Process
Clause.” Clark v. Twp. Of Falls, 890 F.2d 611, 619 (3d Cir. 1993) (citing Paul v.
15

Davis, 454 U.S. 693, 701-02 (1976)). Rather, a procedural due process claim for a
deprivation of a liberty interest grounded in someone’s reputation must show “a
stigma to his reputation plus deprivation of some additional right or interest.” Hill,
455 F.3d at 236 (citing Paul, 454 U.S. at 701)). Regarding her employment with the
youth facilities, Plaintiff does not have a recognized liberty interest under the
Fourteenth Amendment in continued employment with private employers, unless
“[w]here the independent source of a property interest is a private contract, the state
cannot transgress on the claim of entitlement to continued employment without due
process of law.” Wilson v. MVM, Inc., 475 F.3d 166, 177 (3d Cir. 2007). However,
nothing in the amended complaint suggests that Plaintiff was anything but an at-will
employee with a private employer, and thus, this aspect of her procedural due
process claim will be dismissed against all Defendants. Regarding the denial of
Plaintiff’s expectation that she would receive a license to open her own youth
residential facility, the Supreme Court has held “[t]o have a property interest in a
benefit, a person clearly must have more than an abstract need or desire for it. He
must have more than a unilateral expectation of it. He must, instead, have a
legitimate claim of entitlement to it.” Board of Regents of State Colleges v. Roth,
408 U.S. 564, 577 (1972). The property interests are not created by the Constitution
but are created from state law or statute. Id. As Plaintiff’s allegations are unclear as
to whether she had a legitimate claim to entitlement to the license, rather than merely
16

a desire, she has not plausibly stated a procedural due process claim against
Defendants.
2. Substantive Due Process
“The substantive component of the Due Process Clause limits what
government may do regardless of the fairness of procedures that it employs,
Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 399 (3d Cir. 2000), to
“guarantee protect[ion] against government power arbitrarily and oppressively
exercised,” Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (citing Daniels
v. Williams, 474 U.S. 327, 331 (1986). To maintain a Section 1983 claim for a
violation of substantive due process rights, Plaintiff must allege she was “deprived
of a particular interest that ‘is protected by the substantive due process clause.’”
Steele, 855 F.3d at 500. Unlike procedural due process, however, “[s]ubstantive due
process rights are founded not upon state law but upon deeply rooted notions of
fundamental personal interests derived from the Constitution.” Nunez v. Pachman,
578 F.3d 228, 233 (3d Cir. 2009).
The Supreme Court has further stated that “the Due Process Clause of the
Fourteenth Amendment protects the fundamental right of parents to make decisions
concerning the care, custody, and control of their children.” Troxel v. Granville, 530
U.S. 57, 66 (2000). This right is not absolute. Croft, 103 F.3d at 1125. The liberty
interest in familial integrity is limited by the government’s compelling interest in
17

protecting children, and the “right to familial integrity . . . does not include a right to
remain free from child abuse investigations.” Id. As such, to prevail on her
substantive due process claim, Plaintiff must demonstrate that the government action
was so egregious or ill-conceived as to “shock the conscience.” Miller, 174 F.3d at
375. The government’s action cannot merely be negligent, but must “exceed both
negligence and deliberate indifference, and reach a level of gross negligence or
arbitrariness that it indeed ‘shocks the conscience.’” Id. at 375-75. Further, where
the government possesses evidence giving rise to a reasonable suspicion of child
abuse or where a child is in imminent danger of abuse, removal of the child from the
parent’s custody does not infringe on parental rights, “even if evidence produced
during the course of an investigation demonstrates that no abuse occurred.” Croft,
103 F.3d at 1126.
Here, Plaintiff’s amended complaint states that the children were removed
after a teacher reported that her younger child had a bruise on her arm. While the
allegation of child abuse was eventually determined to be unfounded, the case law
supports that Plaintiff has failed to state a claim with respect to the removal of her
children under the substantive due process clause. Regarding Plaintiff’s inclusion in
the ChildLine Registry and the denial of the youth residential facility license, the
court has already stated that the Due Process Clause does not protect reputation
alone, instead requiring a “stigma plus” deprivation of another interest or right.
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While the Third Circuit has not yet ruled on this issue, other courts have found that
“stigma plus” claims, like the one Plaintiff appears to allege, lie only as procedural
due process claims. The court will follow this lead. 3 Thus, this portion of Plaintiff’s
substantive due process claim will be dismissed. Lastly, regarding Plaintiff’s
allegations that she was not provided any hearing despite a requirement that she have
an informal hearing within 72 hours of the removal of her children and that she was
not apprised of her right to counsel or her other rights, the court finds that Plaintiff
has sufficiently plead a substantive due process claim against the County
Defendants. However, the claim will be dismissed against Smith as there are no
allegations that she was personally involved in this respect.
D. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment provides that
“[n]o State shall . . . deny to any person within its jurisdiction the equal protection
of the laws.” U.S. Const. Amend. XIV, § 1. The clause requires equal treatment of
3

Hogan v. City of Fort Walton Beach, No. 3:18-CV-1332-MCR-HTC, 2019 U.S. Dist. LEXIS
236293, at *2 (N.D. Fla. June 3, 2019) (citing Cannon v. City of W. Palm Beach, 250 F.3d 1299,
1302-03 (11th Cir. 2001) (recognizing that the “stigma-plus” test implicates “the procedural
protections of the Due Process Clause.”); Cotton v. Jackson, 216 F.3d 1328, 1330 (11th Cir. 2000)
(same); Doe v. Michigan Dep’t of State Police, 490 F.3d 491, 502 (6th Cir. 2007) (concluding that
the “stigma-plus” test only applies to procedural due process claims); Segal v. City of New York,
459 F.3d 207, 213 (2d Cir. 2006) (“[S]tigma plus is a species within the phylum of procedural due
process claims”); Keller v. City of Tallahassee, 181 F. Supp. 3d 934, 942-43, 950 n.16 (N.D. Fla.
2015) (determining that the plaintiff’s due process claims based on a “stigma-plus” liberty interest
were not cognizable as substantive due process claims); McKinney v. Pate, 20 F.3d 1550, 1560
(11th Cir. 1994); Salazar v. City of Albuquerque, No. CIV 10-0645 JB/ACT, 2014 U.S. Dist.
LEXIS 160250, at *22 (D.N.M. Oct. 27, 2014) (“A stigma-plus claim rests on a violation of
procedural due process and not of substantive due process.”)).
19

“all persons similarly situated.” Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen.
N.J., 910 F.3d 106 125 (3d Cir. 2018) (quoting Shuman ex rel. Shertzer v. Penn
manor Sch. Dist., 422 F.3d 141, 151 (3d Cir. 2005). At the pleading stage, Plaintiff
must make nonconclusory allegations that she and other similarly situated
individuals who were allegedly treated differently from her are “alike ‘in all relevant
respects.’” Childrens Health Defense, Inc. v. Rutgers, the State Univ. of N.J., 93
F.4th 66, 84 (3d Cir. 2024) (quoting Harvard v. Cesnalis, 973 F.3d 190, 205 (3d Cir.
2020)). Classifications affecting either fundamental rights or involving a protected
class are subject to heightened scrutiny. City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 440 (1985). Here, Plaintiff has not alleged that the CPSL classifies
her differently than others and has provided nothing but conclusory averments that
she was treated differently based on her race. Thus, this claim will be dismissed
against the County Defendants and Smith.
E. First Amendment Right to Familial Association
The First Amendment protects the right of “intimate association” that
“involves an individual’s right to enter into and maintain intimate or private
relationships free of state intrusion.” Ph Lambda Phi Fraternity, Inc. v. University
of Pittsburgh, 229 F.3d 435, 442 (3d Cir. 2000). To properly aver a violation of this
right, Plaintiff must show that the challenged action “directly and substantially
interfered with” a protected relationship. See Lyng v. Int’l Union, et. al., 485 U.S.
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360, 365 (1988); Nittoli v. Morris County Bd. of Chosen Freeholders, 2007 U.S.
Dist. LEXIS 37536, *7 (D.N.J. May 22, 2007). A “protected” relationship is
“distinguished by such attributes as relative smallness, a high degree of selectivity
in decisions to begin and maintain the affiliation, and seclusion from others in critical
aspects of the relationship.” Id. (quoting Roberts v. United States Jaycees, 468 U.S.
609, 620 (1984)). Protected relationships include “those that attend the creation and
sustenance of a family-marriage, . . . the raising and education of children, . . . and
cohabitation with one’s relatives.” Id.
Plaintiff alleges that her familial association with her children was intruded
when the County Defendants and Smith contacted her. However, it appears this
communication only affected her relationship with non-family. The court will thus
dismiss this aspect of Plaintiff’s First Amendment claim.
F. Malicious Abuse of Process
Under Pennsylvania law, the tort of Malicious Abuse of Process exists “where
prosecution is initiated legitimately and thereafter is used for a purpose other than
that intended by the law.” Rose v. Bartle, 871 F.2d 331, 350 n.17 (3d Cir. 1989);
Rosen v. Am. Bank of Rolla, 627 A.2d 190, 192 (Pa. Super 1993). With respect to
this claim, Plaintiff has not plausibly alleged that any of the actions alleged to be
taken by the County Defendants or Smith were used for a purpose other than that

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intended by law and has included only threadbare and conclusory assertions
supporting this claim. Thus, it will be dismissed.
III.

CONCLUSION

For the reasons set forth above, the motion to dismiss will be granted in part
and denied in part. An appropriate order shall follow.
/s/ Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: August 28, 2024

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