PETRI v. ERIE COUNTY CHILDREN AND YOUTH et al
MEMORANDUM OPINION and ORDER re 59 MOTION to Dismiss Amended Complaint filed by TINA TROHOSKE, AMY DALEY, ERIE COUNTY CHILDREN AND YOUTH. IT IS HEREBY ORDERED that the Motion to Dismiss Plaintiff's Amended Complaint is GRANTED. Signed by Magistrate Judge Richard A. Lanzillo on 6/4/2021. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ERIE COUNTY CHILDREN AND
YOUTH, TINA TROHOSKE,
AMY DALEY, and RALPH FERRIS,
Case No. 1:19-cv-243
RICHARD A. LANZILLO
UNITED STATES MAGISTRATE JUDGE
MEMORANDUM OPINION AND ORDER
ON DEFENDANTS ERIE COUNTY
OFFICE OF CHILDREN AND YOUTH,
TRINA TROHOSKE, AND AMY
DALEY’S MOTION TO DISMISS
[ECF No. 59]
MEMORANDUM OPINION AND ORDER
Plaintiff Maryann Petri (Petri), proceeding pro se, commenced this action alleging
violations of federal and state law by the Erie County Office of Children and Youth (OCY) and
two of its employees, Tina Trohoske (Trohoske) and Amy Daley (Daley) (collectively, the OCY
Defendants). She also sued her former husband, Ralph Ferris (Ferris).
The OCY Defendants and Ferris filed motions to dismiss Petri’s original Complaint. ECF
Nos. 20, 29. Ferris’s Motion to Dismiss, ECF No. 29, filed pursuant to Federal Rule of Civil
Procedure 12(b)(1) and 12(b)(6), was granted because Ferris was not a state actor and thus not
amenable to a federal civil rights suit pursuant to 42 U.S.C. § 1983. 1 ECF No. 46. The federal
Ferris moved for dismissal in part pursuant to Federal Rule 12(b)(1) based on lack of subject matter jurisdiction and
the Court granted the motion on that basis. In hindsight, the Court believes dismissal of the claim against Ferris, while
correct, more appropriately should have been granted pursuant to Federal Rule 12(b)(6), for failure to state a claim.
See Boyle v. Governor’s Veterans Outreach & Assistance Ctr., 925 F.2d 71, 74 (3d Cir. 1991); Obuskovic v. Wood,
761 Fed. Appx. 144, 148 (3d Cir. 2019), cert. denied, 139 S. Ct. 2748, 204 L. Ed. 2d 1135 (2019).
claims against Ferris were dismissed with prejudice. Id. The state law claims against Ferris were
dismissed without prejudice. Id. Ferris was subsequently terminated from the case. ECF No. 80. 2
The OCY Defendants’ Motion to Dismiss, ECF No. 20, was granted and the claims against
them dismissed, but without prejudice. ECF No. 46. Petri was permitted to file an amended
complaint against the OCY Defendants addressing the identified shortcomings. Id. Petri has now
filed an Amended Complaint. ECF No. 52.
The OCY Defendants have filed the instant Motion to Dismiss the Amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) and a Brief in Support thereof. ECF Nos.
59-60. Petri has filed a Response. ECF No. 63. Pursuant to this Court’s Order, ECF No. 99, the
parties also filed supplemental briefs addressing the legal significance, if any, of Petri’s voluntary
discontinuance of a related state court action “with prejudice.” ECF Nos. 102, 104. 3 The Motion
to Dismiss is now ripe for disposition. 4
Standard and Scope of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a
motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the
merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief
Petri filed an appeal from the order terminating Ferris. ECF No. 86. That appeal is pending in the United States
Court of Appeals for the Third Circuit, although that Court has informed Petri that the appeal is jurisdictionally
defective. Case No. 21-1264, ECF No. 3-1. While the timely filing of a notice of appeal normally immediately
confers jurisdiction on a Court of Appeals, Petri’s interlocutory appeal from a non-final order does not divest this
Court of jurisdiction to adjudicate the instant motion. See Roudabush v. Bitener, 722 Fed. Appx. 258, 262 (3d Cir.
2018) (citing Venen v. Sweet, 758 F.2d 117, 121 (3d Cir. 1985)).
After reviewing the supplemental briefs and relevant exhibits, the Court agrees with the parties that the voluntary
discontinuance in state court with prejudice was entered in such a manner that it does not prevent this case from
proceeding in this Court. Res judicata is an affirmative defense that the OCY Defendants have determined is not
appropriate to raise based on the circumstances surrounding Petri’s agreement to dismiss the state court action.
All parties have consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636.
above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5
C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See
also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint should only be dismissed pursuant to
Rule 12 (b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard established in Conley
v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court must accept as true all
well-pled factual allegations in the complaint and views them in a light most favorable to the
plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss,
a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555. A
“formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain,
478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if
they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret.
Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch.
Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised
as factual allegations.
Twombly, 550 U.S. at 555.
See also McTernan v. City of York,
Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal conclusions.”).
Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the
following three-step approach:
First, the court must ‘tak[e] note of the elements a plaintiff must plead to state
a claim.’ Second, the court should identify allegations that, ‘because they are
no more than conclusions, are not entitled to the assumption of truth.’
Finally, ‘where there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to
an entitlement for relief.’
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster
Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556
U.S. at 679.
When ruling upon a motion to dismiss pursuant to Rule 12(b)(6), the court must “generally
consider only the allegations in the complaint, exhibits attached to the complaint, matters of public
record, and documents that form the basis of a claim.” Lum v. Bank of Am., 361 F.3d 217, 222 n.3
(3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.
1997). A court may take judicial notice of documents filed in other court proceedings because
they are matters of public record. Liberty Int’l Underwriters Can. v. Scottsdale Ins. Co., 955 F.
Supp. 2d 317, 325 (D.N.J. 2013).
In her Amended Complaint, Petri makes the following allegations. During custody
proceedings between Ferris and Petri concerning their four children, Ferris made false allegations
of abuse against Petri. ECF No. 52 at 1. The OCY Defendants failed to conduct a proper
investigation into these allegations and ultimately found that abuse was indicated. Id. at 1-2. As
a result, Petri lost her nursing license, her employment, and custody of her children; she also
suffered two nervous breakdowns and a heart attack. Id. The findings of abuse were later
expunged. Id. at 1.
This Court previously dismissed Petri’s federal claim against OCY/Erie County, filed
pursuant to 42 U.S.C. § 1983, on the basis that she had not alleged facts to support a finding that
the County maintained policies or customs that caused the alleged constitutional violation or pled
a basis for concluding that municipal failures amounted to deliberate indifference. ECF No. 46 at
9-10 (citing Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 694 (1978) and Forrest v. Parry, 930
F.3d 93, 101 (3d Cir. 2019) (supplying bases for municipal liability under 42 U.S.C. § 1983)).
In her Amended Complaint, Petri does not remedy the identified deficiencies. The sole
allegation she makes concerning OCY is that it did not sanction Trohoske and Daley for their
actions with regard to Petri’s case. ECF No. 52 at 2. The County’s failure to sanction its
employees after the fact in this single instance does not evidence that the County had an established
policy or custom that led to Petri’s injuries; further, it falls well short of evidencing a failure or
inadequacy amounting to deliberate indifference to constitutional rights on the part of the County.
Because Petri failed to remedy the deficiencies upon which the Court based its original
dismissal of the federal claim against OCY/Erie County, the claim will be dismissed again for the
same reasons. The Amended Complaint does not allege facts to support a plausible federal claim
against OCY/Erie County. The Motion to Dismiss will be granted as to this defendant.
Trohoske and Daley
This Court previously identified Petri’s Fourteenth Amendment claim against Trohoske
and Daley as one of substantive due process based on what she claimed was an improper
investigation into the allegations of abuse. ECF No. 46 at 10-12. The claim was dismissed on the
To state a substantive due process claim, Petri must show that Trohoske and Daley
abused their power in an arbitrary manner which “shocks the conscience.” Id.
(citing Cty. of Sacramento v. Lewis, 523 U.S. 833, 846-48, 118 S. Ct. 1708, 140 L.
Ed.2d 1043 (1998)). Petri alleges an arbitrary interference with her right to parent
her children. See, e.g., Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147
L. Ed.2d 49 (2000). Again, however, she has failed to state a claim.
Parents have “constitutionally protected liberty interests” in the “custody, care and
management of their children.” Croft v. Westmoreland Cty. Children & Youth
Servs., 103 F.3d 1123, 1125 (3d Cir. 1997). But here, Petri has failed to show that
the state action depriving her of custody was ‘so shocking, arbitrary, and egregious
that the Due Process Clause would not countenance it even were it accompanied by
full procedural protection.’” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267,
275 (2d Cir. 2011) (quoting Tenenbaum v. Williams, 193 F.3d 581, 600 (2d Cir.
1999)). Even considered in the light most favorable to Petri, her claims do not rise
to this level.
What counts as “conscience shocking” is not always clear. See Siefert v. Hamilton
Cty., 951 F.3d 753, 766 (6th Cir. 2020) (citing Cty. of Sacramento v. Lewis, 523
U.S. 833, 847, 118 S. Ct. 1708, 140 L.Ed.2d 1043 (1998) (“[T]he measure of what
is conscience shocking is no calibrated yard stick.”). See also Fetterman v.
Westmoreland Cty. Children’s Bureau, No. 2:15-CV-773, 2015 WL 5007952, at
*6 (W.D. Pa. Aug. 20, 2015) (citing Kaucher v. County of Bucks, 455 F.3d 418,
425 (3d Cir.2006) (“The measure of what shocks the conscience is a legal question
and there is no clear, calibrated standard”). What is clear, however, is that when a
social worker acts to separate parents from their children, “the standard of
culpability for substantive due process purposes must exceed both negligence and
deliberate indifference, and reach a level of gross negligence or arbitrariness that
indeed ‘shocks the conscience.’” Hatfield v. Berube, 2017 WL 2559635, at *12
(W.D. Pa. June 13, 2017), aff’d, 714 Fed. Appx 99 (3d Cir. 2017) (quoting Miller
v. City of Phila., 174 F.3d 368, 373 (3d Cir. 1999)).
The facts, as pleaded, do not rise to the level of conscience-shocking actions. Child
protection agencies face difficult dilemmas in these situations and must balance the
rights of both children and parents. Fetterman, 2015 WL 5007952, at *6. Thus,
“[t]o override the parental interest, the state must have some reasonable and
articulable evidence giving rise to a reasonable suspicion that a child has been
abused or is in imminent danger of abuse.” Croft, 103 F.3d at 1126. Removal of a
child from parental custody without reasonable suspicion to believe ongoing
parental custody presents a threat to the child’s health or safety constitutes an
arbitrary abuse of government power. Id. But it is not sufficient for Petri to baldly
contend, in hindsight, that Trohoske and Daley “did not conduct a proper
investigation and only provided information that was provided by the biological
father.” ECF No. 2, p. 9. Rather, Petri needs to allege facts sufficient to establish
that their actions were so faulty that they shock the conscience. For example, there
has been no allegation that either Defendant acted despite having concrete
knowledge that Ferris’ information was false. Moreover, the allegations of the
Complaint allege only negligence by the OCY Defendants. See id. p. 10 (“Count
1: Negligence”). As a matter of law, these allegations of negligence fall far short
of the “shock the conscience” standard necessary to state a claim. See, e.g.,
Fetterman, 2015 WL 5007952, at *7.
ECF No. 46 at 12-14.
In her Amended Complaint, Petri does not set forth additional allegations to establish that
the actions of Trohoske and/or Daley were so faulty that they shock the conscience. Petri merely
reiterates her previous allegations that these defendants conducted an improper investigation and
relied only on the reports of the children’s father. ECF No. 52 at 2. Although Petri’s Amended
Complaint newly characterizes Trohoske and Daley’s conduct as “deliberately refusing” to
conduct a proper investigation, id., she does not allege any facts to support this conclusion.
Because Petri failed to remedy the deficiencies upon which the Court based its original
dismissal of the federal claims against Trohoske and Daley, these claims will be dismissed again
for the same reasons. The Amended Complaint does not allege facts to support a plausible federal
claim against Trohoske or Daley. The Motion to Dismiss will be granted as to these defendants. 5
Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal
for failure to state a claim, the Court should permit a curative amendment, unless an amendment
would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
This Court granted Petri the opportunity to cure the deficiencies of her complaint, informing her
at that time that subsequent amendments would likely not be permitted and that is was essential
that she address the shortcomings identified. ECF No. 46 at 14. She failed to do so. The Court
finds that further amendment would be futile. Accordingly, no leave to amend is granted.
For the reasons discussed herein, the following order is entered:
The Court will not reconsider its decision to decline to exercise supplemental jurisdiction over Petri’s state law
AND NOW, this 4th day of June, 2021, IT IS HEREBY ORDERED that the Motion to
Dismiss Plaintiff’s Amended Complaint filed by Erie County Office of Children and Youth, Tina
Trohoske, and Amy Daley, ECF No. 59, is GRANTED.
RICHARD A. LANZILLO
United States Magistrate Judge
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