Wallace v. Powell et al
Filing
1002
MEMORANDUM AND ORDER finding as moot 906 Motion to Dismiss; finding as moot 907 Motion to Dismiss; finding as moot 908 Motion to Dismiss; finding as moot 909 Motion to Dismiss; granting in part and denying in part 922 Motion to Dismiss; gra nting in part and denying in part 927 Motion to Dismiss; granting in part and denying in part 929 Motion to Dismiss; granting 931 Motion to Dismiss; granting in part and denying in part 932 Motion to Dismiss. IT IS HEREBY ORDERED that the mo tions are GRANTED in part and DENIED in part as follows:(1)Defendant Powells Motion to Dismiss (Doc. 922): The interference with familial relationships and § 1985(3) claims are dismissed. The remaining § 1983 claims and the punitive damage s claims are not dismissed.(2)MAYS, PA Child Cares, and Western PA Child Cares motion to dismiss (Doc. 927): The interference with familial relationships and § 1985(3) claims are dismissed. The remaining 1983 claims and the punitive damages cla ims are not dismissed.(3)Sandra Brulos motion to dismiss (Doc. 929): The § 1985(3), § 1986, the JDPA, and the parent plaintiffs Sixth and Eighth Amendment claims are dismissed. Defendant Brulo also has quasi-judicial immunity for all claim s stemming from her sentencing recommendations. The remaining § 1983 claims and the punitive damages claims are not dismissed.(4)Motion to dismiss by Sam Guesto, Luzerne County, Luzerne County Department of Juvenile Probation, Greg Skrepenak, a nd Todd Vanderheid (Doc. 931): All claims against these defendants are dismissed. (5)Robert Mericle and Mericle Constructions motion to dismiss (Doc. 932): The interference with familial relationships and § 1985(3) claims are dismissed. The remaining § 1983 claims and the punitive damages claims are not dismissed.(6)Motions to dismiss filed prior to the filing of the second amended complaint (Doc. 906-909) are moot. Signed by Honorable A. Richard Caputo on 11/30/11 (jam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FLORENCE WALLACE, et al.,
Plaintiffs,
CIVIL ACTION NO. 3:09-CV-286
v.
ROBERT J. POWELL, et al.,
(JUDGE CAPUTO)
Defendants.
MEMORANDUM
Presently before the Court are motions to dismiss filed by Robert Powell (Doc. 922),
MAYS, PA Child Care, and Western PA Child Care (Doc. 927), Sandra Brulo (Doc. 929),
Sam Guesto, Luzerne County, Luzerne County Department of Juvenile Probation, Greg
Skrepenak, and Todd Vanderheid (Doc. 931), and Robert Mericle and Mericle Construction
(Doc. 932). For the reasons stated below, these motions will be granted in part and denied
in part.
BACKGROUND
Angela Rimmer Belanger, Kelly Farmer, Joseph Rimmer, and Zane Farmer
(“Belanger plaintiffs”) in their proposed class action, allege the following.
All four named plaintiffs live in Luzerne County, Pennsylvania. Defendants Mark A.
Ciavarella and Michael T. Conahan are former Luzerne County Court of Common Pleas
judges. Defendant Luzerne County is a county government organized under the laws of
the state of Pennsylvania. Defendant Sam Guesto is the former County Manager/Chief
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Clerk of Luzerne County and held that position until January 2008.
Following his
resignation, he was hired by defendant Ciavarella as a court administrator. Defendants
Gregory Skrepenak and Todd Vonderheid are former members of the Luzerne County
Board of Commissioners. Defendant Sandra Brulo is a former Deputy Director of Forensic
Programs of the Luzerne County Department of Probation. Defendant Luzerne County
Department of Juvenile Probation is the Department of Juvenile Probation for Luzerne
County. Defendant Robert Powell is a former partner in PA Child Care, LLC and Western
PA Child Care, LLC. Defendant Robert Mericle is the owner of Mericle Construction, Inc.
Defendant Mericle Construction is a close corporation registered under the laws of
Pennsylvania. Defendant PA Child Care LLC and Western PA Child Care, LLC are limited
liability companies registered under the laws of Pennsylvania. Defendant Mid-Atlantic
Youth Services, Inc. (“MAYS”) is a Pennsylvania corporation with its principal place of
business in Emlenton, PA.
Defendants Powell and Mericle paid approximately $2.6 million in bribes to
defendants Ciavarella and Conahan to ensure the placement of juveniles in PA Child Care
and Western PA Child Care – facilities built by Mericle and run by Powell. In Pennsylvania,
juveniles retain the same rights as other criminal defendants, including the right to due
process of law and the right to counsel. Specifically, the bribes facilitated a “Placement
Guarantee Agreement” that guaranteed substantial annual payments from Luzerne to the
juvenile facilities operated by defendant Powell. To ensure placements in these facilities,
defendant Ciavarella often sentenced juveniles to terms of incarceration for minor offenses.
Ciavarella also typically adjudicated these cases without any of the procedural protections
normally associated with juvenile cases, including giving the juveniles legal counsel to
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protect their rights. Juveniles who appeared before Ciavarella were provided with a waiver
of counsel form, prepared by defendant Brulo, which was insufficient and illegal on its face.
Of the juveniles who waived counsel before Ciavarella, over half were incarcerated,
compared with roughly ten percent of juveniles who waived counsel in the rest of the state.
At least 5,000 children were adjudicated by Ciavarella during the period relevant to the
complaint. During that time, Luzerne County had the highest rate of juvenile incarceration
in Pennsylvania by several orders of magnitude. Thousands of childrens’ lives were
negatively affected by defendants’ conduct, and the childrens’ parents were similarly
affected.
The Belanger plaintiffs further allege that several Luzerne County officials helped
facilitate the bribery scheme. Luzerne County initially rejected PA Child Care’s unsolicited
proposal in 2000 to build a juvenile detention facility in Pittston and to lease it to the County
for $37 million over thirty years. Although the County had an adequate juvenile facility,
after Judge Conahan announced that juveniles would no longer be sent to it because of
its deplorable conditions, the County made plans to build its own facility. However, after
the elections of Gregory Skrepenak and Todd Vonderheid as County Commissioners in
2004, the County agreed to contract with PA Child Care for $58 million over 20 years to
house adjudicated juveniles. Through this period, Skrepenak and Vonderheid, allied
politically and socially with Chivarella and Conahan and aware of the bribery scheme,
abdicated their oversight responsibilities regarding personnel, budget, and contract
decisions relating to juvenile detention, giving Ciavarella and Conahan a free hand. The
County’s lease with PA Child Care was roundly criticized as grossly overpriced. However,
Skrepenak and Vonderheid continued to support it. When Steve Flood, the Luzerne
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County Controller, launched an investigation into the matter, Skrepenak and Vonderheid
obstructed his investigation. Additionally, Sam Guesto, a member of the conspiracy closely
aligned with both Skrepenak and the Judges, in his position as Luzerne County manager,
participated in the decision to hire PA Child Care and helped draft the agreement. Sandra
Brulo, Deputy Director for Forensic Services for the Luzerne County Probation Department,
was also a member of the bribery conspiracy. She used her position to implement
Conahan’s “zero tolerance policy” regarding juvenile crimes – initiated just days after the
opening of the PA Child Care facility. Brulo instructed Luzerne County probation officers
that all juveniles supervised in Luzerne County had to have their probation violated. Such
a policy was to ensure that PA Child Care would remain full. She also recommended
juveniles be placed in rehabilitation facilities in order to legitimize placements made by
Conahan and Chivarella and altered probation reports to ensure further detention.
As a result of the defendants’ actions, the lives of the Belanger plaintiffs have been
dramatically affected. After Zane Farmer was arrested following a verbal altercation with
his mom, Kelly Farmer, Judge Ciavarella sentenced him to six months incarceration without
due process or being advised of his right to counsel. Joseph Rimmer, after being charged
with vandalism, was sentenced to thirty days incarceration – later increased to several
months – by Judge Ciavarella after a summary proceeding in which he was denied due
process. Angela Rimmer Belanger, Joseph’s mother, was later sued by Luzerne County
for child support during Joseph’s incarceration.
In their complaint, the Belanger plaintiffs bring the following claims: conspiracy to
violate 42 U.S.C. § 1983 (count I), against all defendants; violation of 42 U.S.C. § 1985
(count II), against all defendants; violation of 42 U.S.C. § 1986 (count III), against the
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Luzerne County defendants; violation of 42 U.S.C. § 1983 (count IV), against the Luzerne
County defendants; violation of right to substantive due process under 42 U.S.C. § 1983
(count V), against the Luzerne County defendants; unconstitutional policies and practices
under 42 U.S.C. § 1983 (count VI) against the Luzerne County defendants; wrongful taking
under 42 U.S.C. § 1983 (count VII) against Sandra Brulo, the Luzerne County Department
of Juvenile Probation, and Luzerne County; violation of the Juvenile Justice and
Delinquency Prevention Act of 1974 under 42 U.S.C. § 1983 (count VIII) against Sandra
Brulo and the Luzerne County Department of Juvenile Probation; injunctive relief for
wrongful payment to municipality (count IX), against Luzerne County and the Luzerne
County Department of Juvenile Probation; wrongful payment to municipality of child
support (count X), against Sandra Brulo, Luzerne County, and the Luzerne County
Department of Juvenile Probation, and punitive damages against all defendants except
Luzerne County and the Luzerne County Department of Juvenile Probation.
The Belanger plaintiffs have amended their complaint twice. Following the second
set of amendments, defendants re-filed their motions to dismiss. Each motion has been
briefed and is ripe for review. Each will be discussed in turn below.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal
is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has
not pleaded “enough facts to state a claim to relief that is plausible on its face,” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations “‘to raise
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a reasonable expectation that discovery will reveal evidence of’” each necessary element,
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550
U.S. at 556); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a
complaint to set forth information from which each element of a claim may be inferred).
In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only “‘give the
defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Erickson
v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). “[T]he
factual detail in a complaint [must not be] so undeveloped that it does not provide a
defendant [with] the type of notice of claim which is contemplated by Rule 8.” Phillips, 515
F.3d at 232; see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663,
667 (7th Cir. 2007).
In deciding a motion to dismiss, the Court should consider the allegations in the
complaint, exhibits attached to the complaint, and matters of public record. See Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The
Court may also consider “undisputedly authentic” documents when the plaintiff’s claims are
based on the documents and the defendant has attached copies of the documents to the
motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were
not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256,
263 & n.13 (3d Cir. 1998), or credit a complaint’s “‘bald assertions’” or “‘legal conclusions,’”
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). “While legal
conclusions can provide the framework of a complaint, they must be supported by factual
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allegations.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
When considering a Rule 12(b)(6) motion, the Court’s role is limited to determining
if a plaintiff is entitled to offer evidence in support of her claims. See Scheuer v. Rhodes,
416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately
prevail. See id. A defendant bears the burden of establishing that a plaintiff’s complaint
fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
DISCUSSION
I.
Defendant Powell’s Motion to Dismiss (Doc. 922)
Defendant Robert Powell moves to dismiss the three claims against him in the
Belanger plaintiffs’ second amended complaint: (1) the claim that Powell conspired to deny
plaintiffs of their rights to due process, an impartial tribunal, and familial relations, in
violation of their Fifth, Sixth, and Fourteenth Amendment rights under 42 U.S.C. § 1983
(count I); (2) the 42 U.S.C. § 1985(3) claim (count II); and (3) the punitive damages claim.
Since the Court has already ruled that allegations similar to those underlying the § 1983
conspiracy – as they relate to the procedural due process and impartial tribunal claims –
and punitive damage claims were sufficient under Fed. R. Civ. P. 12(b)(6), see Clark v.
Conahan, 737 F.Supp.2d 239 (M.D.Pa. 2010), these counts will not be dismissed as to
defendant Powell. The Court will, however, grant defendant Powell’s motion to dismiss the
§ 1985(3) claim and the aspect of the § 1983 conspiracy claim relating to the interference
with familial relations.
A.
The § 1983 conspiracy claim
This Court previously held in Clark that allegations stemming from the same events
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stated claims under 12(b)(6) for violations of juveniles’ Fifth, Sixth, and Fourteenth
Amendment rights under 42 U.S.C. § 1983. Powell, incorporating arguments made by
defendant Mericle in his motion to dismiss, argues that this ruling was wrong. The Court
does not agree.
The Supreme Court has repeatedly held that a plaintiff cannot bring a cognizable
claim pursuant to 42 U.S.C. § 1983 if a judgment in favor of the plaintiff “would necessarily
imply the invalidity of his conviction or sentence,” unless the plaintiff can demonstrate that
the conviction or sentence has been invalidated. Edwards v. Balisok, 520 U.S. 641, 643,
(1997) (quoting Heck v. Humphrey, 512 U.S. 477, 487 (1994)). As to Plaintiffs' Fifth, Sixth
and Fourteenth Amendment claims, although the precise contours of those claims are
unclear at this stage of the proceeding, those claims necessarily will imply the invalidity of
the underlying juvenile conviction and sentences.
This Court held in Clark that:
Defendants argue that Kossler v. Crisanti, 564 F.3d 181 (3d Cir.2009), stands
for the proposition that a favorable termination must be indicative of actual
innocence. While it is true that Kossler does stand for this proposition, it is
unclear whether Kossler, which very explicitly limited its holding to the facts of
that case, applies with equal force to § 1983 claims that are brought under a
claim other than malicious prosecution. See Kossler, 564 F.3d at 187, 192.
Assuming without deciding that Kossler does require an indication of actual
innocence, the Third Circuit Court of Appeals went on to list six (6) ways in which
a plaintiff may indicate his innocence:1) discharge by a magistrate at a
preliminary hearing, 2) the refusal of a grand jury to indict, 3) the formal
abandonment of the proceedings by the prosecutor, 4) the quashing of an
indictment or information, 5) acquittal, or 6) a final order in favor of the accused
by a trial or appellate court. Id. at 187–88 (citing Donahue v. Gavin, 280
F.3d 371, 383 (3d Cir.2002)).
In the instant case, the adjudications of probation violations that occurred after
January 1, 2003 were vacated by the Pennsylvania Supreme Court's order of
October 29, 2009. Thus, [plaintiff] was the beneficiary of a final order in favor of
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the accused by an appellate court, which is one of the terminations of a criminal
proceeding that indicates innocence. As [plaintiff] has received a favorable
termination of these adjudications, he is not barred by Heck and may bring
actions pursuant to § 1983 for any injury arising from the actions taken against
him after January 1, 2003.
Clark, 737 F.Supp.2d at 260.
The Court applies the same findings here and will deny defendant Powell’s motion
to dismiss the § 1983 conspiracy claims relating to violation of the Belanger plaintiffs’ rights
to due process and an impartial tribunal.
However, the Belanger plaintiffs’ substantive due process stemming from
interference with the family relationship will be denied. In Wallace v. Powell, which dealt
with the same underlying allegations, this Court held that:
It is by now well-settled that the Due Process Clause protects certainly narrowly
defined fundamental rights of parents in their relationships with their children.”
McCurdy v. Dodd, 352 F.3d 820, 826 (3d Cir.2003). To sufficiently state a due
process claim for interference with the parent-child relationship, a plaintiff must
allege deliberate conduct that the defendant sought to harm that relationship.
Chambers ex rel. Chambers v. School Dist. Of Philadelphia Bd. Of Educ., 587
F.3d 176, 192 (3d Cir.2009). In McCurdy, the Third Circuit Court of Appeals
rejected a parent's substantive due process claim for interference with the
parent-child relationship arising from the fatal shooting of plaintiff's adult son.
McCurdy, 352 F.3d at 830. While the court ultimately held that the plaintiff's
claim was barred because the decedent was an adult, the court stated that it
was “hesitant to extend the Due Process Clause to cover official actions that
were not deliberately directed at the parent-child relationship.” Id. at 829. The
court also noted that “it would ... stretch the concept of due process too far if we
were to recognize a constitutional violation based upon official actions that were
not directed at the parent-child relationship.” Id. at 830. Subsequently in
Chambers the Third Circuit Court of Appeals explicitly held that this requirement
that defendant's conduct be deliberately directed at the parent-child relationship
also extends to situations involving minor and un-emancipated children.
Chambers, 587 F.3d at 192. Applying this requirement to the present case, while
Plaintiffs allege that the Defendants deliberately acted to place the Juvenile
Plaintiffs' into PACC and WPACC, they do not allege that Defendants'
deliberately sought to interfere with the Parent Plaintiffs' parent-child
relationships. While it must be said that placing juveniles into PACC and
WPACC would be disruptive to the parent-child relationship, given that the
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disruption caused by the death of a child is insufficient to create a substantive
due process claim for a parent unless the defendant deliberately sought to
interfere in the parent-child relationship, the conduct alleged here does not rise
to the level of a substantive due process violation. Therefore, Defendants'
motion to dismiss this claim will be granted.
No. 3:09-CV-286, 2010 WL 3398995 (M.D.Pa. Aug. 24, 2010). For the same reasons, the
Court will grant defendant Powell’s motion to dismiss that part of the § 1983 conspiracy
claim dealing with the substantive due process\interference with familial relations
allegations.
B.
The § 1985(3) claim
The Court will also dismiss the § 1985 claim against defendant Powell because
juveniles are not a discrete and insular minority who have historically been subjected to
pervasive discrimination.
42 U.S.C. § 1985(3) states:
If two or more persons in any State or Territory conspire . . . for the purpose of
depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under the laws . .
. the party so injured or deprived may have an action for the recovery of
damages occasioned by such injury or deprivation, against any one or more of
the conspirators.
To state a claim under §§ 1985(2) or (3), a plaintiff must allege four things: (1) a
conspiracy; (2) motivated by a racial or class-based discriminatory animus designed to
deprive, directly or indirectly, any person or class of persons of the equal protection of the
laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or
the deprivation of any right or privilege of a citizen of the United States. See Griffin v.
Breckenridge, 403 U.S. 88 (1971). In Magnum v. Archdiocese of Philadelphia, 253
Fed.Appx. 224 (3d Cir. 2007), plaintiffs, alleging sexual abuse by certain Diocesan priests,
10
brought civil RICO claims against the Archdiocese as well as claims under § 1985 and §
1986. The Third Circuit, upholding the district court’s dismissal of the § 1985 claim, held
that: “minor children – who have not been recognized as “victims of historically pervasive
discrimination” and whose sole classifying characteristic ( i.e., their minority) is not
immutable – fall outside the ambit of [1985].”
Following Magnum, the Court will grant defendant Powell’s motion to dismiss the
Belanger plaintiffs’ § 1985 claim against him.
C.
The Punitive Damages Claim
The Court will deny defendant Powell’s motion to dismiss the punitive damages
claim.
It is clear that in certain circumstances punitive damages may be awarded for
violations of civil rights. Cochetti v. Desmond, 572 F.2d 102, 105 (3d Cir.1978). The test
for determining whether punitive damages should be awarded for civil rights violations is
whether Defendants acted with actual knowledge that they were violating a federally
protected right or with reckless disregard for whether they were doing so. Cochetti, 572
F.2d at 106. In Wallace, the Court denied a similar motion brought by defendants Mericle
and Mericle Construction. Here, as in Wallace, defendant Powell argues that the complaint
does not allege he acted with actual knowledge that he was violating the plaintiffs’ rights.
However, the complaint alleges a quid pro quo whereby Ciavarella and Conahan violated
the plaintiffs’ civil rights by unjustly incarcerating them in facilities run by Powell in
exchange for cash. These allegations satisfy the “actual knowledge” requirement for
punitive damages.
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II.
MAYS’, PA Child Care’s, and Western PA Child Care’s motion to dismiss (Doc.
927)
Similarly, most of the issues in the motion to dismiss filed by MAYS, PA Child Care,
and Western PA Child Care have already been ruled on. The punitive damages and
juvenile plaintiffs’ § 1983 claims will not be dismissed, but the § 1985 claim and the
interference with familial relationships claims will be. Although these defendants argue all
claims brought against them should be dismissed because Rimmer and Farmer
acknowledge their guilt in the pleadings, the Court finds the second amended complaint
ambiguous on this point and will not dismiss the complaint on this ground. The Court will
also deny the motion to strike.
III.
Sandra Brulo’s motion to dismiss (Doc. 929)
Defendant Brulo’s motion to dismiss will be granted in part and denied in part as
follows. Again, many of these issues have already been decided by this Court in previous
opinions.
A.
“Official capacity” claims
Plaintiffs have not brought any claims against defendant Brulo in her official
capacity. This argument is therefore moot.
B.
Quasi-judicial immunity for “personal capacity” claims
Defendant Brulo argues she is entitled to quasi-judicial immunity for actions
stemming from her role as Chief Juvenile Probation Officer of Luzerne County.
Absolute immunity is available to government actors that are performed in their
“quasi-judicial” role for conduct that is “intimately associated with the judicial phase of the
criminal process.” Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir.1992); Imbler v.
12
Pachtman, 424 U.S. 409, 430 (1976). In determining whether to grant such immunity,
courts must take a functional approach, focusing on “the nature of the function performed,
not the identity of the actor who performed it and evaluate the effect that exposure to
particular forms of liability would likely have on the appropriate exercise of that function.”
Stankowski v. Farley, 487 F.Supp.2d 543, 552 (M.D.Pa.2007) (quoting Light v. Haws, 472
F.3d 74, 78 (3d Cir.2007)), aff'd, 251 Fed.Appx. 743 (3d Cir.2007). However, where a
government actor is acting in his or her investigative or administrative capacity, those
actions are only protected by qualified immunity, not absolute quasi-judicial immunity.
Kulwicki, 969 F.2d at 1463. Probation officers enjoy quasi-judicial immunity for participation
in the preparation of pre-sentence reports. Stankowski, 487 F.Supp.2d at 552–53.
Regarding this precise issue, this Court has previously held:
In this case, Defendant Brulo is subject to absolute quasi-judicial immunity
regarding her actions stemming from her sentencing recommendations. These
activities are intimately associated with the judicial phase of the juvenile
proceedings; as noted above, there is precedent in this district for holding that
such activities are subject to immunity. See id. However, the other actions
alleged against Brulo, such as altering drug tests, or conjuring up fake probation
violations, were taken in her investigative role as a probation officer. As such,
these activities are not subject to quasi-judicial immunity.
Clark, 737 F.Supp.2d 239,259 (M.D.Pa. 2010).
Therefore, Brulo's motion to dismiss will be granted for all her actions regarding
sentencing recommendations and denied as to the other activities.
C.
Qualified immunity
Defendant Brulo argues she is entitled to qualified immunity for plaintiffs’ Fifth and
Sixth Amendment claims. Qualified immunity protects government officials from suit for
conduct that does not violate a clearly established statutory or constitutional right of which
13
a reasonable person would be aware. Pearson v. Callahan, 555 U.S. 223 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). This Court has already ruled any
reasonable person would know that what she is accused of doing violated the plaintiffs’
constitutional rights. Clark, 737 F.Supp.2d at 257. Therefore Brulo is not entitled to
qualified immunity for these actions, and the motion to dismiss will be denied on that count.
D.
Sovereign immunity under 42 Pa. C.S. § 8521
Defendant Brulo argues she is entitled to immunity under 42 Pa. C.S. § 8521.
Sovereign immunity is only available to state employees while they are acting within the
scope of their duties. 1 Pa. C.S. § 2310. The probation department is an arm of the state,
and its employees are state actors, making them subject to sovereign immunity. See
Haybarger v. Lawrence County Adult Probation and Parole, 551 F.3d 193, 198 (3d
Cir.2008). Conduct of an employee is within the scope of employment when (1) it is of a
kind and nature that the employee is employed to perform, (2) it occurs substantially within
the authorized time and space limits, and (3) the action is prompted, at least in part, by a
purpose to serve the employer. Larsen v. State Employees' Ret. Sys. 553 F.Supp.2d 403,
420 (M.D.Pa.2008).
This Court has already ruled that defendant Brulo is not entitled to sovereign
immunity because the alleged acts are not within the scope of her employment:
Altering drug tests, changing recommendations as part of a scheme to ensure
the detention of juveniles, and concocting fake probations violations to have
juveniles placed in custody are not the type of conduct that juvenile probation
officers are hired to perform. As such, the allegations fail to fall within the first
prong of the scope of employment test, and, therefore, Defendant Brulo's
actions cannot be shielded by sovereign immunity.
Clark, 737 F.Supp.2d at 258.
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Therefore, the Court will deny defendant Brulo’s motion to dismiss on the ground
of sovereign immunity.
E.
Failure to establish actual innocence
Defendant Brulo argues that plaintiffs have failed to establish “actual innocence” as
required to pursue their § 1983 claims. As mentioned above, this Court has already ruled
that the Pennsylvania Supreme Court’s vacating of the juvenile adjudications involving
these plaintiffs meets the “actual innocence” requirement. Brulo additionally argues that
plaintiffs Zane Farmer and Joseph Rimmer admit their guilt in their complaint. In light of
the foregoing, the Court finds these admissions of “involvement” in the incidents with which
they were charged of no consequence.
F.
Dismissal of parent plaintiffs’ Sixth and Eighth Amendment claims
This Court has previously ruled that the parent plaintiffs cannot use violations of
their children’s rights to make out claims that their rights were violated. Id. at 273. The
Sixth Amendment provides for a right to counsel in criminal proceedings. Supreme Court
precedent makes it clear that “a person's Sixth and Fourteenth Amendment right to counsel
attaches only at or after the time that adversary judicial proceedings have been initiated
against him.” Kirby v. Illinois, 406 U.S. 682, 688 (1972) (citations omitted). Under the
Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.”
Since the parent plaintiffs were not personally involved in any criminal proceedings
and have not alleged they were forced to pay excessive fines or bail, the Court will dismiss
these claims.
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G.
Parent plaintiffs Fifth and Fourteenth Amendment due process claims
for support payments they were required to make
Defendant Brulo argues that the parent plaintiff claims stemming from the support
payments they were required to make for their children’s incarceration should be dismissed
because: (1) the Fifth Amendment only applies to federal employees; (2) there was no
“taking” here since parents are required to support their children; (3) these claims are
barred under Rooker-Feldman.
The due process clause of the Fifth Amendment only applies to federal government
actors, not state actors like defendant Brulo. Nguyen v. U.S. Catholic Conference, 719
F.2d 52 (3d Cir. 1983).
The United States has “eschewed the development of any set formula for identifying
a forbidden “taking” . . . and have relied instead on ad hoc, factual inquiries into the
circumstances of each particular case.” Connolly v. Pension Ben. Guar. Corp., 475 U.S.
211, 224 (1986). In this factual inquiry, three factors have been deemed to have particular
significance: (1) the economic impact of the regulation on the claimant; (2) the extent to
which the regulation has interfered with distinct investment-backed expectations; and (3)
the character of the governmental action. Connolly, 475 U.S. at 225 (internal citations
omitted).
The Rooker–Feldman doctrine is derived from the two Supreme Court cases,
Rooker v. Fidelity Trust Co., 263 U.S. 413, 415–16 (1923), and District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462, 483–84 (1983). The doctrine is rooted in the
statutory propositions that federal district courts are courts of original, not appellate,
jurisdiction and that the United States Supreme Court is the only federal court that has
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jurisdiction to review final judgments from a state's highest court. See 28 U.S.C. § 1257(a);
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284–85 (2005). Simply put,
the Rooker–Feldman doctrine divests a lower federal court of subject matter jurisdiction of
an action if the relief requested would effectively reverse a state court decision or void its
ruling. See, e.g., Turner v. Crawford Square Apts. III, L.P., 449 F.3d 542, 547 (3d
Cir.2006).
For a number of years, many courts in the Third Circuit applied a two-part test in
evaluating whether the Rooker–Feldman doctrine applied: (1) if the federal claim was
actually litigated in state court prior to the filing of the federal action; or, (2) if the federal
claim was “inextricably intertwined” with the state adjudication, meaning that federal relief
can only be predicated upon a conviction that the state court was wrong. E.g., McClain v.
Bank of New York, 2010 WL 1837908, at *2 (E.D.Pa. Apr.29, 2010).
In Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159 (3d
Cir.2010), the Third Circuit altered the Rooker–Feldman analysis to be employed by
courts in this Circuit. The court instructed the lower courts in this Circuit to cease
considering whether the federal claim was “inextricably intertwined” with the state court
judgment. Id. at 170 (“The phrase ‘inextricably intertwined’ does not create an additional
legal test or expand the scope of Rooker–Feldman”). The court articulated the following
four-part test for dismissal of a federal claim for lack of subject matter jurisdiction based on
Rooker–Feldman:
(1) the federal plaintiff lost in state court;
(2) the plaintiff complains of injuries caused by the state court judgment;
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(3) those judgments were rendered before the federal suit was filed; and,
(4) the plaintiff is inviting the federal court to review and reject the state judgments.
Id. at 166. The Third Circuit observed that the second and fourth elements of the test
are “key to determining whether a federal suit presents an independent, non-barred
claim.” Id. Focusing on the second requirement—that the injuries be caused by the
state court judgment—the court stated that “when the source of the injury is the
defendant's actions (and not the state court judgments), the federal suit is independent,
even if it asks the federal court to deny a legal conclusion reached by the state court.” Id.
at 167.
Here, while the Fifth Amendment claim against defendant Brulo is obviously out,
she claims the Fourteenth Amendment due process claim should be out as well because,
since the parents were already obliged to support their children, the support payments they
were forced to pay as a result of their children’s allegedly illegal incarceration is not a
“taking.” This argument lacks merit. The parent plaintiffs had no expectation that their
children would be incarcerated in violation of their constitutional rights in order to further
a kickback scheme, and additionally, they would have to pay for the privilege. The corrupt
nature of these alleged actions further substantiates the view that this was a “taking” and
the claims will not be dismissed on this ground. Additionally, Rooker-Feldman does not
apply because: (1) the parent plaintiffs’ claim was not previously litigated in state court, (2)
they did not lose in state court, (3) the source of the injury is defendant Brulo’s actions, and
(4) parent plaintiffs are not asking the court to reject state judgments. Also, the state
judgments have been vacated, so there is no worry here of this Court interfering with a
state court action or overstepping this Court’s authority.
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H.
The § 1985(3) and § 1986 claims
Defendant Brulo’s motion to dismiss the § 1985(3) and § 1986 claims against her
will be granted. As discussed above, the Third Circuit has already held that juveniles fall
outside the ambit of § 1985(3). § 1986 states in part that:
Every person who, having knowledge that any of the wrongs conspired to be
done, and mentioned in section 1985 of this title, are about to be committed, and
having power to prevent or aid in preventing the commission of the same,
neglects or refuses so to do, if such wrongful act be committed, shall be liable
to the party injured, or his legal representatives, for all damages caused by such
wrongful act[.]
Therefore, liability under § 1986 presupposes liability under § 1985. Since the § 1985(3)
claim is out, so is the § 1986 claim.
I.
The Juvenile Justice and Delinquency Prevention Act (JJDPA) claim
Defendant Brulo moves to dismiss the claim for violation of the JJDPA, 42
U.S.C. § 5633. The JJDPA was intended to provide a private right of action only against
state or local agencies, not individuals. Doe v. Borough of Clifton Heights, 719 F.Supp.
382, 384 (E.D.Pa. 1984). The Court will therefore dismiss this claim.
IV.
Motion to dismiss by Sam Guesto, Luzerne County, Luzerne County
Department of Juvenile Probation, Greg Skrepenak, and Todd Vanderheid
(Doc. 931)
This motion will be granted. In its ruling on plaintiffs’ leave to amend, this Court
held that plaintiffs proposed second amended complaint failed to state any claims against
Luzerne County, Luzerne County Department of Juvenile Probation, Greg Skrepenak, and
Todd Vanderheid, and denied the motion for leave to amend as to claims against these
defendants. (Doc. 840.) However, perhaps misunderstanding the Court’s ruling, plaintiffs
19
submitted their second amended complaint with claims against these defendants. Since,
as the Court has already held, plaintiffs have failed to any state claims against these
defendants, their motion to dismiss will be granted.
V.
Robert Mericle and Mericle Construction’s motion to dismiss (Doc. 932)
Defendants Mericle and Mericle Construction’s motion to dismiss will be granted
in part and denied in part. The majority of the arguments brought in this motion have
already been ruled on by the Court. As a result, the interference with familial relationships
and § 1985(3) claims will be dismissed, but not the juvenile plaintiffs’ § 1983 or punitive
damages claims.
CONCLUSION
For the reasons stated above, defendants’ motions to dismiss have been
granted in part and denied in part. An appropriate order follows.
11/30/11
Date
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FLORENCE WALLACE, et al.,
Plaintiffs,
CIVIL ACTION NO. 3:09-CV-286
ROBERT J. POWELL, et al.,
(JUDGE CAPUTO)
Defendants.
ORDER
NOW, this 30th day of November, 2011, upon consideration of defendants’ motions
to dismiss (Docs. 922, 927, 929, 931, and 932), IT IS HEREBY ORDERED that the
motions are GRANTED in part and DENIED in part as follows:
(1)
Defendant Powell’s Motion to Dismiss (Doc. 922): The interference with familial
relationships and § 1985(3) claims are dismissed. The remaining § 1983
claims and the punitive damages claims are not dismissed.
(2)
MAYS’, PA Child Care’s, and Western PA Child Care’s motion to dismiss (Doc.
927): The interference with familial relationships and § 1985(3) claims are
dismissed. The remaining 1983 claims and the punitive damages claims are
not dismissed.
(3)
Sandra Brulo’s motion to dismiss (Doc. 929): The § 1985(3), § 1986, the JDPA,
and the parent plaintiffs’ Sixth and Eighth Amendment claims are dismissed.
Defendant Brulo also has quasi-judicial immunity for all claims stemming
from her sentencing recommendations. The remaining § 1983 claims and the
punitive damages claims are not dismissed.
(4)
Motion to dismiss by Sam Guesto, Luzerne County, Luzerne County
Department of Juvenile Probation, Greg Skrepenak, and Todd Vanderheid
(Doc. 931): All claims against these defendants are dismissed.
(5)
Robert Mericle and Mericle Construction’s motion to dismiss (Doc. 932): The
interference with familial relationships and § 1985(3) claims are dismissed.
The remaining § 1983 claims and the punitive damages claims are not
dismissed.
(6)
Motions to dismiss filed prior to the filing of the second amended complaint
(Doc. 906-909) are moot.
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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