Filing 2

MEMORANDUM OPINION resolving 1 plaintiff's motion to proceed in forma process. Signed by Judge David S. Cercone on 7/21/17. (mwm)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA JAMES K. VUKICH, ) ) ) ) ) ) ) ) Plaintiff, v. TONI ROITZ, et al, Defendants. 2:15-cv-0540 MEMORANDUM OPINION I. Introduction 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. II. 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. 1 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 2 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). Factual Background 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. ¶ 14. 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 3 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 parenting plan. III. Analysis 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, with prejudice. 4 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, without prejudice. 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 5 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. IV. Summary 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 6 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 cc: James K. Vukich Lawrence County Jail 111 South Milton Street New Castle, PA 16101 7

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