VUKICH v. ROITZ et al
MEMORANDUM OPINION resolving 1 plaintiff's motion to proceed in forma process. Signed by Judge David S. Cercone on 7/21/17. (mwm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JAMES K. VUKICH,
TONI ROITZ, et al,
Plaintiff James K. Vukich (“Plaintiff”) commenced this pro se action on April 27, 2015,
by filing a Motion for Leave to Proceed In Forma Pauperis (ECF No. 1) with an attached
Complaint. ECF No. 1-1. In his Complaint, Plaintiff alleges that his Fourth Amendment rights
were violated when he was illegally detained, and his child unlawfully removed from his
custody, during an interaction with police on April 25, 2013. Compl. ¶¶ 88-91. Plaintiff further
alleges that caseworkers for the Lawrence County Children and Youth Services Agency (“CYS”)
deprived him of his due process rights in various ways following the removal of his child from
his custody. Id. ¶¶ 92-97. Plaintiff names three CYS caseworkers – Toni Roitz, Stephanie
Kelly, and Miss Matteo – and several New Castle police officers as defendants. Id. ¶¶ 4-8.
Standard for Review
The United States Court of Appeals for the Third Circuit has instructed the district courts
to utilize a two-step analysis to determine whether to direct service of a complaint where the
plaintiff seeks to proceed in forma pauperis. See Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir.
1990). “First, the district court evaluates a litigant’s financial status and determines whether
(s)he is eligible to proceed in forma pauperis under § 1915(a). Second, the court assesses the
complaint under [§ 1915(e)(2)] to determine whether it is frivolous.” Id. (citing Sinwell v.
Shapp, 536 F.2d 15 (3d Cir. 1976)); Schneller v. Abel Home Care, Inc., 389 F. App’x 90, 92 (3d
Cir. 2010), cert. denied, __ U.S. __, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011). The Court finds
the Plaintiff to be without sufficient funds to pay the required filing fee. Thus, he will be granted
leave to proceed in forma pauperis.
28 U.S.C. § 1915(e)(2), as amended, states in relevant part: “[t]he court shall dismiss the
case at any time if the court determines that—... (B) the action or appeal—(i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” A claim is frivolous if it: 1) is based upon
an indisputably meritless legal theory and/or, 2) contains factual contentions that are clearly
baseless. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Whether a complaint fails to state a claim under § 1915(e) is governed by the same standard
applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher
v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the court to determine whether
the complaint contains “sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009) (quotations omitted). However, before dismissing a complaint for failure to state a claim
upon which relief may be granted pursuant to § 1915, a court must grant the plaintiff leave to
amend his complaint, unless the amendment would be inequitable or futile. See Grayson v.
Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
On March 28, 2013, Plaintiff’s son, James K. Vukich II (“JKV”), was born. Compl. ¶ 10.
The mother of the child, Dolly Brown, does not have custody of any of her other four children.
Id. ¶¶ 11-12. Brown’s fourth child, Fiona Hunt, is the subject of an open case with CYS. Id. ¶
13. Consequently, Plaintiff and Brown agreed that Brown would have full custody of JKV. Id. ¶
On April 25, 2013, Plaintiff and JKV were in New Castle, Pennsylvania, for a doctor’s
appointment and to visit Brown. Id. ¶ 24. While at a local mall, Plaintiff and JKV were detained
by police officers and told that CYS agents wanted to speak with him. Id. ¶ 27. Roitz and
Matteo arrived and accused Plaintiff of being homeless. Id. ¶ 28. Based on this allegation,
which Plaintiff denied, Roitz and Matteo directed officers to seize JKV and remove him from
Plaintiff’s custody. Id. ¶¶ 34-36. JKV has not been returned to Plaintiff. Id. ¶ 80.
A 72-hour hearing was apparently held on April 29, 2013. Id. ¶ 72. Plaintiff was not
informed of the hearing or present for the hearing. Id. ¶¶ 72, 75. An adjudication hearing was
held on November 19 or 20, 2013. Id. ¶ 76. A termination hearing was held on February 12,
2015. Id. ¶ 37.
During the course of the proceedings, Roitz presented Plaintiff with a parenting plan for
JKV that was apparently a copy of the parenting plan for Brown’s fourth child, Fiona Hunt. Id. ¶
63. Kelley later presented Plaintiff with the same parenting plan. Id. ¶ 79. Plaintiff refused to
sign the parenting plan because he disagreed with various provisions therein, including the
requirement that he seek a drug and alcohol evaluation, a mental health evaluation, and attend
parenting classes. Id. ¶ 65. Plaintiff contends that he was not permitted to participate in the
drafting of the parenting plan or advised of his right to appeal the parenting plan. Id. ¶¶ 67-68.
Based on the foregoing allegations, Plaintiff filed the instant ten-count Complaint. In
Counts I through IV, Plaintiff contends that Roitz, Matteo, and the police officer defendants
violated his Fourth Amendment rights during an unlawful detention on April 25, 2013. In Count
V, Plaintiff contends that Roitz and Matteo violated his due process rights by depriving him of a
prompt post-deprivation hearing after his child was removed from his care. In Counts VI
through X, he asserts that Roitz and Kelley violated his constitutional rights by giving him
parenting plans based on those used for other children, refusing to allow him to participate in
drafting a parenting plan for his child, and failing to inform him of his right to appeal the
As an initial matter, the Court notes that Plaintiff’s Fourth Amendment allegations (set
forth in Counts I through IV) are untimely. The statute of limitations for claims pursuant to 42
U.S.C. § 1983 in Pennsylvania is two years. Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009)
(citing 42 Pa.Con.Stat. § 5524(2)). Plaintiff’s Complaint was filed on April 27, 2015, over two
years after the incident with police occurred. As such, Counts I through IV must be dismissed,
In Count V, Plaintiff alleges that Roitz and Matteo “violated [his] rights under the U.S.
Constitution when he was not given a hearing for seven months” following the removal of his
son from his custody. Compl. ¶ 92. It is well-settled that a parent has a liberty interest in the
care and custody of his children, Doe v. Governor of N.J., 783 F.3d 150, 1546 (3d Cir. 2015),
and that interference with that interest may implicate due process considerations if a parent is not
provided with an opportunity to be heard within a meaningful time after a child is removed from
his home. Miller v. City of Phila., 174 F.3d 368, 373 (3d Cir. 1999); B.S. v. Somerset Cnty., 704
F.3d 250, 271 (3d Cir. 2013). However, to prevail on such a claim, the plaintiff must allege that
the named defendants were the individuals responsible for scheduling such a hearing and
notifying the plaintiff of the hearing. See Bush v. Dept. of Human Services, 614 F. App’x 616,
621 (3d Cir. 2015) (“Bush’s amended complaint also alleges that he did not receive a timely
post-deprivation hearing when his daughter . . . was removed from his home. However, we
agree with the District Court that the complaint contains insufficient facts to show that the social
workers were responsible for scheduling such a hearing or notifying Bush of the hearing.”). In
the instant case, Plaintiff has failed to allege that either Roitz or Matteo were directly responsible
for the scheduling of the post-deprivation hearing. See Iqbal, 556 U.S. at 678 (complaint must
contain “factual content that allows the court to draw the reasonable inference that the [social
workers are] liable for the misconduct alleged.”). Accordingly, Count V will be dismissed,
In Counts VII through IX, Plaintiff alleges that Roitz violated his constitutional rights by
refusing to allow him to participate in the drafting of a parental safety plan with respect to his
son and by failing to inform him that he had a right to challenge the plan. Compl. ¶¶ 94-96.
Courts have held that “a parent’s procedural due process rights are violated when they are
coerced into signing a safety plan under the threat of losing custody of their children.”
Seldomridge v. Penn State Hershey Med. Cntr., 24 F.Supp.3d 425, 430 (M.D. Pa. 2014); Isbell v.
Bellino, 962 F.Supp.2d 738 (M.D. Pa. 2013). The same is true when a plaintiff is given “no
instruction as to how they could challenge the safety plan, or whether they even had a right to
challenge the plan.” Seldomridge, 24 F.Supp.3d at 430; Starkey v. York Cnty., 2012 WL
9509712, at *11-12 (M.D. Pa. Dec. 20, 2012). As noted by the Third Circuit, such actions by
county employees may be “blatantly coercive” and raise procedural due process concerns. Croft
v. Westmoreland Cnty. Children & Youth Servs., 103 F.3d 1123, 1125 n. 1 (3d Cir. 1997). At
this stage in the proceedings, the Court finds that Plaintiff has stated a plausible claim for
deprivation of his procedural due process rights with respect to the allegations set forth in Counts
VII through IX.
Finally, in Counts VI and X, Plaintiff contends that his constitutional rights were
violated when defendants Roitz and Kelley presented him with a proposed parenting plan that
was modeled on one previously used for one of Brown’s other children. These allegations do not
appear to state a plausible basis for the violation of any constitutional right and will be
dismissed, with prejudice.
Based on the foregoing, the Court concludes that the allegations set forth in Counts I, II,
III, and IV of Plaintiff’s Complaint are time-barred. The allegations set forth in Counts VI and X
fail to allege any plausible constitutional violation. As none of the defects plaguing those claims
can be cured by way of amendment, each of those claims will be dismissed, with prejudice.
With respect to Count V, Plaintiff has asserted a viable claim, but has failed to plead facts
suggesting that the named defendants were individually involved in the deprivation alleged.
Accordingly, Count V will be dismissed without prejudice. Plaintiff may attempt to cure this
deficiency by filing an amended complaint within twenty days of the date of this Memorandum
Opinion and Order, if so desired.
Finally, the Court concludes that the allegations in Counts VI, VII and VIII are sufficient
to state a claim at this stage in the proceedings.
An appropriate order will follow.
Date: July 21, 2017
s/David Stewart Cercone
David Stewart Cercone
United States District Judge
James K. Vukich
Lawrence County Jail
111 South Milton Street
New Castle, PA 16101
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