MORT et al v. LAWRENCE COUNTY CHILDREN AND YOUTH SERVICES et al

Filing 54

REPLY BRIEF by ELIZABETH MORT, ALEX RODRIGUEZ re 51 Motion for Leave to File Second Amended Complaint filed by ELIZABETH MORT, ALEX RODRIGUEZ. (Dodge, Patricia)

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IN THE UNITEll STATES DISTRICT COURT
FOR THE WESTERN llISTRICT OF PENNSYLVANIA
ELIZABETH MORT and ALEX
RODRIGUEZ,

ELECTRONICALLY FILED
Civil Action No. 2:10-cv-01438-DSC

Plaintiffs,
Jude David S. Cercone
v.
LAWRENCE COUNTY CHILDREN AND

YOUTI-~ SERVICES; LAWRENCE
COUNTY; CHRISSY MONTAGUE,
:Lawrence County Children and Yoti~th
Services Caseworker; and JAMESON
HEALTH SYSTEM, INC.,
.Defendants.

PLAINTIFFS' REPLI' I3I2T~~ IN SUPPOKT OF
MOTION FOR LAVE TO ~'TL~ SECOND AMENDED C0IVIPLAINT
Plaintiffs Elizabeth Mort and ilex Rodriguez ("Plaintiffs"), by and through their
undersigned coul~sel, submit this Reply Brief in further support of their Motion for Leave to File
Second Amended Complains a~1d in opposition to Defendants L~wi°ence County, Law~i°eilcc
Co~inty Children and Youth Services (cc~llecCively referred to as "LCCYS") and Cl~lrissy
IVlonfiague's (collectively refel-red to as the "Lawrence County Defendants") Memorandum in
Opposition to Plaintiffs' Motion fc~r Leave to File Second emended Complaint ("Memorandum
in Opposition"j

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I.

ARGUMENT
A.

The Lawrence County Defendants Ignore the Liberal Standard for Granting
Motions for Leave to Amend.

Aside from a brief citation to Federal Rule of Civil Procedure 15(a) in their
Memorandum in Opposition, the Lawrence County Defendants disregard the liberal standard for
granting leave to amend. While they admit that under KLile 15(a) leave to amend pleadings
should be "freely given" in the interest of justice, they fail to address the fact that undue delay
and "substantial" prejudice are required io deny sLich ail amendment. Fed. R Civ. P. 15(a);
Fomcan v. Davis, 371 U.S. 178, 182 (1962); Aver~bczch v. Rivnl Mfg. Co., 879 T.2d 1196, 1203 (3d
Ci~~. 1989), cei^t. denied, 493 U.S. 1023 (1990), ~Iustnfn v. r'tletr~opolitan Life I~sur•ance Co., 372
F.3d 517, X26 (3d Cir. 2004). Tn fact, "prejudice to the non-moving party is the touchstone for
the delzial of an amendment." Cor°~zell and Con~apczny, h2c. v. Occu~ationczl Safety cznd Health
Adrs7inistratic~n, 573 F.2d 820, 823 (3d C~ir. 1978). Despite this requirement, at no point in their
Memorandum in Opposition do the I_,awrence CounCy Defendants state how they will be
prejudiced if fhe Plaintiffs are permitted to amend their conlplaiilt lvitl~in the dec~dlir~e s•et by
cvur~t. They are unable to make, such a sl~owin~.
B.

Plaintiffs Should be G~•anted Leave to Amend to Add Director Jane Gajda as
a Defendant.

The crux of the Lawrence County Defendants' argument i~~ opposition to the Plaintiffs'
z~equest to add Director Jane Gajda as a defenc~ailt is based on the faulty premise that Ms. G~jda
will be sued in her official capacity. (Meinc~randum in Opposition [No. 53], p.~.) In the Second
Amended Complaint attached to the Motion, Ms. Gajda is nan~led in her individual capacity.
(See Motion (No. ~ 1 ], L~. 1,x((12) As Ms. CJajda may be found pers<~nally liable in hei• capacity
as a supervisor b~calzse she approved the policy at issue in t}~1is case, s~~ch a claim is clearly

90248.1.1

proper. A.M. ex r~el. J.s~l.h'. v. Luzern County Juvenile Detention Center, 372 F.3d 572, 586 (3d
Cir. 2004) (quoting Ston~ekin~ v. B~~adfor°c~ A~~ca Sch. Dist., 882 F.2d 720, 72~ (3d Cir.1989))
{"[i]ndividual defendants who are policymakers may be liable under ~ 1983 if it is shown that
such defendants, with deliberate indiffereizce to the consequences, established end maintained a
policy, practice or custom which directly caused constitutional ha7~n."). See also, Jackson v.
Beard, No. 09-541, 2009 U.S. Dist. LEXIS 103802, at 1'6, 2009 WL 374787 , at *2 (W.D.Pa.
Nov. 5, 2009) (Ambrose, J.) ("a supervisory defendant sufficiently involved with a policy or
practice that caused constitutioi7al harm may support a Section 1983 claim.")
Thus, contrary to the claims of tl~~ Lawrence County Defendants, a suit against Ms.
Gajda is not the same as a suit against the entity itself. What is more, unlike LCCYS, if Ms.
Gajda is found to be personally liable to the Plaintiffs, punitive darn~ges may be assessed against
her. Sn~itl~ v. t~ac~e, 461 U.S. 30, SC (1983). The7~efoi°e, tl~e Lawrence County Defei7dants'
assertion that there is "no real benefit" to the Plaintiffs if Ms. Gajda is added as a .Defendant is
also without merit. (Memorandum in Opposition (No. 53], p.4.)
Finally, the Lawrence County Defendants' assertion that the identity of Ms. Gajcla end
her status is nc~t "newly revealed i~iformation" is wrholly irrelev~~nt to the 1°esolution of this
matter. (Melno~-andum in Opposition [No. 53], p.~.) Plaintiffs are not required to make such ~
showing, and the Lawrence County Defendants leave cited no case law to the contr•ar5r. In fact,
"~d]elay alone ... is ~n insufFicient ground to deny an amendmeflt, unless the delay unduly
prejudices the non-moving party." Cornell c~ Cho., 573 F2d at 823. Similarly, defendants' Chreat
to burden this Court with "another round of Motions to Dismiss" also misses the n1a1•k.
{Memorandum in ~ppositic~n [Nn. 53], p.4.) Whether the Lawrence County Defendants chose
to proceed with a motion to diszzziss that raises many of the same issues that this Court leas

902483.1

already decided in favor of Plaintiffs has no bearing upon PlaiiltiFFs° right to amend their
complaint. In short, as the Lawrence County Defendants have proffered no valid reason to the
contrary, the Plaintiffs should be granted leave to amend the Second Amended Complaint to add
Ms. Gajda as a defendant.
C.

Plaintiffs Should be Granted Leave to Amend to Add Supervisor Sandy
Copper as a Defendant.

The Lawrence County Defendants argue that if the Plaintiffs are pei-nlitted to add Ms.
Copper as a defendant, then their claims against Ms. Montague should be dismissed. To support
thzs assertion, the Lawrence County Defendants first argue, without any legal support, that
because Ms. Montague claims to have bee11 following a directive by her supervisor, Ms. Copper,
Ms. Montague is relieved from liability. (Memorandum in Opposition [No. 53], p.5.) However,
Ms. Montague is not entitled to immunity simply because she states that she was directed to file
the petition by hey supervisor.

Indeed, goverlu~lent employees cannot evade liability for

unconstitutional actions even if they are directed t~o engage i11 those actions by supervisors.
Gr•ossynar~ v. City of Por~tlanc~, 33 F.3d 1200, 1209 (9th Cir. l 99~) ("[I]ndividuals cal~lot always
be held immune For the results of their- official conduct simply because they were enforcing
olicies or oi-de;rs romul ated b those with su erior authorit

~

Next, the Lawrence County Defendants claim that iz1 ligl~lt of Ms. Copper's involvernerlt,
tl~e issue of Ms. Montagtie's liability should be revisited bivezi this Coul~-t's previous holdinb that

~~ At any rate, it should also be noted that Ms. Copper has yet to be deposed and may or may not
provide testimony that is entirely consistent with Ms. Montague r~~ai°dingy; their respective roles
~~d actions. Coilti°ary to defendants' implieatiorl, Plaintiffs are r1oC required at this juncture to
prove their case against tl~lese defcndallts. Thus. the defendants' concept of "revisiting" dais
Couz-t's ~~rior denial ~f defendants' Motion to Dismiss is misguided.

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X02483.1

1VIs. Montague is nod entitled to absolute immlmity because of her failure to il~ivestigate the
allegedly positive drug screen of Plaintiff Elizabeth Mort ("Ms. Mort"). ~ (Memorandum in
Opposition [No. 53], pp.5-6.) The Lawreisce County Defendants fail to acknowledge, however,
that neither Ms. Montague nor Ms. Copper investigated Ms. Mort's positive drtiig screen at any
time. This investigation. could have been conducted by either or' both. of them prior• to taking
Baby Isabella Rodriguez ("Baby Rodriguez") inio custody, or after Baby Rodriguez was
removed from her parents' home. Had any such investigation occurred, Bab}' Rodriguez could
have been returned to the Plaintiffs immediately, z~ather than after five days of her being held in
custody. Plaintiffs have pleaded claims against both Ms. Copper and Ms. Montague based on
their respective faihrre to investigate. (See Motion [No. 51], Ex. 1.,11101.) Consequently, there is
no merit to the Lawrence County Defendants' assertion. that their claims of immunity for Ms.
Montague should be revisited.
Similarly, while the Lawrence CoLU1ty Defendants suggest that it may be appropriate to
raise the issue of immunity ancUor liability with respect to Ms. Copper in the event that she
directed Ms. Montague to investigate the allegedly positive cirli~ screen of Plaintiff iVlort, their
argunlezlfs improper°ly rest on factual disputes that are not appropl°i~te for resolution in a motion
to dismiss. (Memorandum in Oppositiiol~~ [No. 53], p.6.) Even i~f Ms. Copper did direct Ms.
Montague tv coi~lduct such a~~ investigation, she failed to ensure that the investigation was, iii
fact, conducted. Moreover, Ms. Copper cannot obtair~l immunity or avoid liability for 11er failure
to conduct her own investigation merely by instructii~i~ Ms. Montague to do so, and defendants
fail to cite any authority t~o the contrary.

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902483.1.

II.

CONCLUSION

P1ai11tiffs respectfiilly request that their Motion for Leave to Amend be granted and that
they be permitted to file an Amended Complaint substantially in the form of Exhibit 1 attached
to Plaintiffs' Motioxa for Leave to File Second Amended Complaint.
MEYER, UNKOVIC &SCOTT LLP
By: /s/Patricia L. Dc~c~~~;e
Patricia L. Dodge
PA ID No. 35393
Anloiilette OlivetPA ID No. 206148
S35 Smithfield Street
Suite 1300
Pittsburgh, PA 1.5222-2315
{412) 456-2800
[e-mail]
aco@iz~uslaw.com
By: /.s/ Sczj~a J. Rose
Sa1-a J. Rose
PA ID No. 204936
Witold :l. Walczak
PA ID No. 62976
AMI'RICAN CIVIL LIBERTIES FOUNI~ATION OF PENNSYLVANIA.
313 Atwood Street
Pittsburgh, PA 1213
(412) b81-7564
srose a~aclupa.or•g
vwalczalcnaclupa.oi•g

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902483.1

CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing Reply Brief in
Support of Motion for Leave to File Second Amended Complaint was served this 31S` day of
October, 2011, via the Court's electronic transmission facilities pursuant to Fed. R. Civ. P.
5(b)(3) and Local Rule 5.5 upon the following:
John C. Conti, Esquire
Richard J. Kabbert, Esquire
Dickie, McCamey & Chilcote
Two PPG Place, Suite 400
Pittsburgh, PA 152??
{Cozrnscl_fo~ Defendant Jameson Health System, Inc.)
Marie Mi1ie Jones, Esquire
Meyer, Darragh, Buckler, Bebenek &Eck, P.L.L.C.
U.S. Steel Tower, Suite 4850
600 Giant Street
Pittsburgh, PA 15219
(Coz~n,~elfor Defe~~c~cznts Lc~w~~ence County, Lawrence County Ch~zldren anc~ YUZrth Services and
Chr~z.ssy Montague)

I3y: /s/Pate°icia L. Dodge