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April 19, 1979


The opinion of the court was delivered by: HUYETT


Plaintiff brought this civil rights action seeking redress for defendants' alleged "failure to provide him with adequate care, treatment, or services which would have enabled him to return home and be reunited with his mother during the three and one-half years that he was separated from her following his adjudication as a deprived child by the Montgomery County Juvenile Court." Complaint P 2. Defendants A. Russell Parkhouse, Frank W. Jenkins, and Lawrence H. Curry have moved to dismiss. The moving defendants are sued individually and in their official capacities as County Commissioners of Montgomery County. In support of their motion defendants contend that they lack sufficient personal involvement in the alleged deprivation of plaintiff's rights to support liability under 42 U.S.C. § 1983 and that the action against them is barred by legislative immunity.

 In evaluating a motion to dismiss, our role is a fairly narrow one, for "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957) (footnote omitted). As the Supreme Court stated in Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974), "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." While making this determination, "the allegations of the complaint should be construed favorably to the pleader." Id.

 The portions of the complaint upon which the instant motion turns are the following:

38. Defendants Parkhouse, Jenkins, and Curry, as the County Commissioners of Montgomery County, are directly responsible, pursuant to Pennsylvania law and regulations, for providing or causing to be provided, and for funding necessary child welfare services in Montgomery County designed to keep children in their own homes. However, these defendants have not provided necessary funds to defendant CWS to develop such services and in failing to do so are responsible for plaintiff's restricted and continuous confinement for almost four years.
39. Defendants Parkhouse, Jenkins, and Curry are further responsible, pursuant to Pennsylvania law and regulations, for providing or causing to be provided community-based residential facilities or foster homes which would have facilitated plaintiff's return to his mother, or at least, provided for plaintiff's confinement in a less restrictive community-based setting.
42. At all times pertinent hereto, all defendants knew, or should have known, that plaintiff's continued restricted confinement away from his mother and home, without providing services to him or his mother, and without notifying him of his right to counsel and of his right to have his placement reviewed by a court, was done in violation of plaintiff's statutory and constitutional rights, or that defendants did so with the malicious intention of causing a deprivation of plaintiff's statutory and constitutional rights.
43. The failure to provide treatment to plaintiff and his mother, the failure to provide community-based residential facilities, the failure to notify plaintiff of his right to counsel and of his right to have his placement reviewed by a court, and the failure to schedule plaintiff's case for review by the Montgomery County Juvenile Court were all done pursuant to the official policy, practice, and custom of defendants Parkhouse, Jenkins, Curry, and (Montgomery County Child Welfare Services) and its agents and employees.

 Plaintiff concedes that personal involvement is required in a § 1983 action. See Fialkowski v. Shapp, 405 F. Supp. 946 (E.D.Pa.1975). He argues, however, that the requisite involvement is present in this case. In Pennsylvania, County Commissioners are designated as the "executive and administrative officers of the institution district" of their respective counties. 62 P.S. § 2252. The institution districts are charged with responsibility for the administration of the child welfare services within the county. Pennsylvania Department of Public Welfare, Children & Youth Manual § 3211 (1969) (hereinafter cited as C & Y Manual). The county institution districts are bound by the regulations promulgated by the Department of Public Welfare. 62 P.S. § 703. Those regulations require the institution districts, Inter alia, to budget adequate funds to provide for children accepted for service, appraise the adequacy of the child welfare program, and assure compliance with applicable State and Federal Regulations. C & Y Manual § 3211.1b(1-8). Moreover, the institution districts are charged with establishing "(written) policies and procedures for the operations of the public child welfare agency" which "shall reflect the intent of the state statutes authorizing county child welfare services and shall adhere to appropriate regulations of the Department of Public Welfare." Id. § 3220A.

 The statutory and regulatory scheme evidences a duty on defendants' part to supervise the administration of child welfare services in Montgomery County. Although it would appear that "the mere right to control without any control or direction having been exercised and without any failure to supervise is not enough to support § 1983 liability," Monell v. New York City Department of Social Services, 436 U.S. 658, 694 n. 58, 98 S. Ct. 2018, 2037, n. 58, 56 L. Ed. 2d 611 (1978), it has been stated that "findings of general knowledge combined with direct supervisory control may be sufficient to hold an official personally involved in the unlawful acts of his subordinates." Fialkowski v. Shapp, supra, 405 F. Supp. at 951. It has also been noted that "the greater the duty a supervisor has to control those employees who actually committed the violation, the less specific knowledge of the offending conduct the supervisor will be required to have." Santiago v. City of Philadelphia, 435 F. Supp. 136, 152 (E.D.Pa.1977). Moreover, "the existence of general policies and practices within the supervisor's department can create a constructive knowledge on his or her part of the alleged constitutional deprivation." Id.

 Plaintiff's complaint, liberally construed, alleges that the moving defendants had responsibility for providing for and funding necessary child welfare services, that had those services been provided plaintiff's return to his mother or at least a less restrictive placement would have been facilitated, that defendants were aware, or should have been aware, that his continued restricted placement deprived him of his statutory and constitutional rights, and that he was deprived of his rights pursuant to the official policy, practice, and custom of the moving defendants. We believe that plaintiff's complaint, when judged by the standards which we must apply, See Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977), Cert. denied, 434 U.S. 1086, 98 S. Ct. 1280, 55 L. Ed. 2d 791 (1978); Richardson v. Pennsylvania Dept. of Health, 561 F.2d 489, 492 (3d Cir. 1977); Gittlemacker v. Prasse, 428 F.2d 1, 3 (3d Cir. 1970), alleges sufficient personal involvement on the part of the moving defendants to entitle plaintiff to adduce evidence in support of his claim.

 We must therefore determine whether the suit against the moving defendants is barred by legislative immunity. Although defendants do not specify whether the immunity they assert is qualified or absolute, it is clear that defendants' attempt to have the complaint against them dismissed at this time is contingent upon a finding that absolute immunity applies. As Judge VanArtsdalen explained in Burkhart v. Saxbe, 397 F. Supp. 499, 502 (E.D.Pa.1975), "Absolute immunity may be conceptualized as a shield from civil liability. Qualified immunity, on the other hand, is an affirmative defense on the merits which must be alleged in the pleadings and factually proven by the defendant." Unless the immunity, if any, that defendants may assert is absolute, the complaint against them may not be dismissed at this stage of the proceedings. See Scheuer v. Rhodes, supra.

 Defendants base their immunity argument upon Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951). Defendants have cited no case to us, however, that applied an absolute immunity to officials in defendants' position. Rather, courts generally accord only a qualified immunity to local legislators and others similarly situated. See Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975) (school board member entitled to a qualified immunity); Jones v. Diamond, 519 F.2d 1090 (5th Cir. 1975) (members of County Board of Supervisors entitled to qualified immunity); Nelson v. Knox, 256 F.2d 312 (6th Cir. 1958) (municipal legislators entitled to a qualified immunity); Kinderhill Farm Breeding Associates v. Appel, 450 F. Supp. 134 (S.D.N.Y.1978) (Town Board members entitled to qualified immunity when acting in administrative or executive capacity.); Adler v. Lynch, 415 F. Supp. 705 (D.Neb.1976) (County Commissioners entitled to qualified immunity). We adopt the reasoning of Judge Robinson in Adler v. Lynch, supra:

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