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ROMAN v. APPLEBY

February 22, 1983

ALEXANDER ROMAN, et al.
v.
MARJORIE APPLEBY, et al.



The opinion of the court was delivered by: GILES

 GILES, District Judge.

 Alexander Roman, formerly a public school student in the Downingtown Senior High School, Downingtown, Pennsylvania, and his parents Steven and Ruth Roman, brought this civil rights action against the Downington Area School District, Marjorie Appleby, a school counselor, Chester County Children's Services ("CCCS"), and Penelope Hendry, a social worker for CCCS, alleging violations of rights guaranteed under the first and fourteenth amendments of the United States Constitution and section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983. Plaintiffs also assert pendent state claims for negligence and defamation. Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331 and 1343. Defendants have moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on the ground that plaintiffs' amended complaint fails to state a claim upon which relief can be granted.

 Pursuant to notice given by this court's order of September 3, 1982, and Fed. R. Civ. P. 12(b), the motions to dismiss shall be treated as motions for summary judgment since matters outside the pleadings shall be considered. See Braden v. University of Pittsburgh, 477 F.2d 1, 6 (3d Cir. 1973). *fn1"

 Between September 12, 1977 and October 19, 1977, Appleby conducted a series of approximately eight interviews with Alexander Roman, then a tenth grade student. (Complaint para. 16). *fn2" It was her opinion that he exhibited certain conduct consistent with an "inability to function in reality," a psychosis. (Complaint, paras. 16, 20(c)(d)). The first interview was initiated by Alexander Roman, but the remainder were encouraged by Appleby. (Complaint, paras. 17-18). Shortly after the first session, Alexander's mother called Appleby and acknowledged that her son was involved in counseling sessions with Appleby. (Exhibit B, p.2. See note 1 supra). However, the parents never authorized Appleby during those sessions to question their son and induce responses with respect to his feelings about: his immediate family, including his affection or nonaffection or intimate relations for its members; the manner in which his parents had raised him; sex, masturbation, homosexuality and the "Oedipus complex"; or God, religion, heaven, hell and sin. (Complaint paras. 19-20). During the counseling sessions Appleby told Alexander that: his parents were too strict; their religious views were too rigid and conservative; he could not function in reality; he was possibly psychotic; his fears of being a homosexual were normal for his age; and everyone experiences feelings of homosexuality. Id. Prior to October 19, 1978, Appleby failed to inform the parents of the content of her questions, the son's responses, and her opinions as expressed during the interviews. (Complaint paras. 23-25).

 On or about October 19, 1977, Appleby arranged a conference with the parents at the school at which time she voiced her opinions about Alexander derived from the counseling sessions and characterized his verbal and physical conduct which formed the basis for her opinions. (Exhibit B, p.5). Appleby expressed to the parents her fear that Alexander's problem was serious and that professional help for him was needed. She asked the Romans to contact Crisis Intervention, a mental health counseling service. The Romans did not seek help. After advising Mrs. Roman of her intention, Appleby made an oral referral of the matter to CCCS, Id. at p.6, and recommended that Alexander be compelled to undergo psychiatric testing. (Complaint para. 27). CCCS assigned the investigation of the matter to Hendry. Hendry had independent contact with the parents during her agency investigation.

 On or about January 30, 1978, CCCS filed a petition with the Court of Common Pleas of Chester County to have Alexander adjudicated a "dependent" pursuant to the Commonwealth of Pennsylvania's Juvenile Act of 1972, 11 P.S. § 50-101, et seq., now substantially reenacted in 42 Pa. C.S.A. § 6301, et seq. (Complaint para. 30). Plaintiffs allege that the filing of the petition was capricious, unreasonable, without support in law and fact and a direct result of Appleby's referral and recommendation. (Complaint, paras. 30-33).

 The petition sought an order directing psychological and psychiatric evaluation and testing of Alexander. It alleged that he had demonstrated evidence of mental instability and emotional disturbance, was in need of psychiatric evaluation and possibly treatment, and that the parents had refused to cooperate and provide sufficient psychiatric care for the child. After conducting a hearing on February 17th and 24th, 1978, the petition was dismissed by the court. (Complaint, para. 36).

 Plaintiffs allege that because of the emotional distress and humiliation caused by these events, Alexander transferred to a private school. (Complaint, para. 40). On February 14, 1978, Appleby wrote a report of her discussions with Alexander and delivered the report to CCCS and Hendry. Other employees at CCCS also read the report. (Complaint, paras. 52-55). On February 15, 1978, CCCS and Hendry delivered it to Dr. Thomas L. D'zmura, Alexander's personal physician. (Complaint, paras. 56-57).

 Two separate motions to dismiss have been filed -- one by Downingtown and Appleby, the other by CCCS and Hendry, jointly.

 II. LEGAL ISSUES

 Count I, which contains the central issues of the complaint, alleges a series of federal constitutional violations for which relief is sought under 42 U.S.C. § 1983. Each claim is challenged by defendants. Plaintiffs' alleged violations are: a first amendment right to free exercise of religion; a right to "maintain a private family relationship without unnecessary, unreasonable, and capricious governmental interference and control;" a fourteenth amendment right to due process of law; and a fourteenth amendment right to equal protection of the law. No specific constitutional source for the second claim is provided by the plaintiffs, but it shall be treated as a constitutional claim nonetheless. It is a subsection of the same paragraph of the complaint which contains clear constitutional claims and is consistent with rights courts have found to be protected on substantive due process grounds under the fourteenth amendment.

 Counts II-V allege separate causes of action against each defendant for "gross negligence" and "wanton recklessness," failure to use due care, and failure to conduct a reasonable investigation. These shall be characterized as state claims for negligence and intentional infliction of emotional distress.

 Count VI is a state law libel claim based on the defendants' release of Appleby's report to persons at CCCS and to Alexander's doctor.

 Count VII alleges that "Defendants invaded the seclusion and solitude of the Plaintiffs' private lives and interfered with their private family relationships." It is best read as a state claim for invasion of privacy.

 In addition to their attacks on the substantive constitutional claims in Count I, defendants contend that the constitutional claims must be dismissed because they are not supported with sufficiently specific facts. CCCS and Hendry also assert immunity from suit on the federal claims premised on section 1983 based upon the doctrine set forth in Wood v. Strickland, 420 U.S. 308, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975). Further, defendants maintain that since none of the plaintiffs' federal claims are actionable, the court lacks the power to consider any state claims under the doctrine of pendent jurisdiction. In the alternative, they argue that the court should exercise its discretion not to hear them. Finally, defendants contend that both the Child Protective Services Law of 1975, 11 P.S. § 2201, et seq., and the Juvenile Act of 1972, 42 Pa. C.S.A. § 6301, et seq., confer immunity for the acts alleged.

 By orders of September 7 and 9, 1982, and in accordance with the bench ruling made during oral argument on April 13, 1981, the actions against CCCS and the School District were dismissed without prejudice for failure to sufficiently allege the existence of a custom or policy. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Monell requires a plaintiff to prove the existence of a policy or custom which is of long standing so as to have the force of law causing an unconstitutional deprivation of a claimant's civil rights. Weisiger v. City of Philadelphia, No. 80-2719 (E.D. Pa., Sept. 22, 1982), citing Monell at 691-94. *fn3" Plaintiffs were given an opportunity to amend their complaint as to CCCS and the School District to allege facts which would show such a policy or custom. However, by letter of September 16, ...


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