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BALLIET v. WHITMIRE

January 8, 1986

CAROL BALLIET, JOHN J. BALLIET, Plaintiffs
v.
LUCILLE B. WHITMIRE, GEORGE GENSEMER, KENT SHELHAMER, JOAN M. MOSIER, EUGENE HARTMAN, GREGORY HAAS, HAROLD CROZIER, COUNTY OF COLUMBIA, LINDA PAGE, CHILDREN AND YOUTH SERVICES, Defendants



The opinion of the court was delivered by: CALDWELL

WILLIAM W. CALDWELL, UNITED STATES DISTRICT JUDGE

 MEMORANDUM

 I. Introduction.

 Defendants, Eugene Hartman and Harold Crozier, employees of the Commonwealth of Pennsylvania, have filed a motion to dismiss plaintiffs' complaint pursuant to Fed. R. Civ. P. 12(b). Defendants, Columbia County, its Commissioners, Lucille B. Whitmire, George Gensemer and Kent Shelhamer, the Children and Youth Services Agency of Columbia County (CYS), its director, Joan M. Mosier, and Linda Page, an agency employee, and Gregory Haas, a former employee, have also moved to dismiss plaintiffs' complaint. *fn1" Plaintiffs are Carol Balliet and her husband, John J. Balliet. Their complaint, brought pursuant to 42 U.S.C. § 1983, alleges that certain actions taken by defendants in connection with the latters' investigation of a day care center at plaintiffs' home violated plaintiffs' due process and fourth amendment rights, and other unspecified "civil" and "constitutional" rights. As will be made clear in our discussion this matter cannot proceed on this woefully inadequate document.

 II. Background.

 Accepting as we must in the context of these motions the allegations of the complaint, the background of this litigation is as follows. For approximately one year plaintiffs participated in a CYS program which placed foster children under the plaintiffs' care. Carol Balliet also operated an informal baby-sitting service in her home. (Complaint, para. 12). *fn2" Apparently, at some point in time the Balliets indicated that they no longer wished to accept foster children from CYS. *fn3" Plaintiffs allege that, in retaliation for this decision, defendant Haas gave "false and fraudulent information" to the Pennsylvania Department of Public Welfare (DPW). The nature of the information is unspecified but it can be inferred from subsequent allegations that Haas reported that the Balliets were sexually abusing the children placed in their care. *fn4" (para. 16). Haas's charges led to a "prolonged and illegal investigation" by defendant Hartman which was subsequently illegally reopened *fn5" and extended beyond time limitations set by state law. Plaintiffs claim a violation of due process of law in connection with this conduct.

 According to the complaint the DPW investigation resulted in other alleged irregularities. Hartman instigated another DPW investigation centering on the Balliets' sexual abuse of two of their own children. (paras. 21, 24). Further, he refused to permit plaintiffs' attorney to be present during the investigative interviews conducted with the children. (para. 25). During one interview conducted in the presence of plaintiffs' counsel, he used "profane and vulgar language." (para. 32). He also threatened to remove one of the plaintiffs' minor children from the home. (para. 28). Finally, Hartman's conclusion that plaintiffs had engaged in sexual abuse of children is alleged to be violative of due process (para. 20). Significantly, however, no criminal charges were ever brought against the Balliets because the Columbia County district attorney, after referral of the charges to him, decided that they were baseless. (para. 43).

 Without placing responsibility explicitly upon any particular defendant, plaintiffs also complain that psychological evaluations they and the children underwent during the investigations were never considered in any determination of the validity of the charges. In some instances the evaluations were never made or, if made, never sent to DPW for consideration in violation of the procedure established for the investigation. (paras. 22, 23).

 In apparent connection with the investigation or investigations, defendant Crozier, also employed by DPW, conducted "broad unannounced illegal inspections and searches that went well beyond the scope of propriety" at plaintiffs' residence, (para. 41), in violation of their due process rights. Similarly, defendant Haas, in addition to supplying the initial allegations against the Balliets, also engaged in unannounced and improper inspections of the Balliets' home. (para. 37). He would harass Carol Balliet and insult the children in her care. (Id.).

 During the investigation of the Balliets, they requested, through their attorney, that the Commissioners invoke state law and obtain information from DPW concerning the competence of Haas but they refused to do so. (paras. 34, 35). Commissioner Whitmire specifically declined to become involved at the beginning of the investigation. (para. 33). The Commissioners also "impliedly refused" plaintiffs' minor child legal representation at the interview by initiating proceedings in court to block such representation. (para. 30). The Balliets also claim that a policy of CYS permitted the illegal searches, and that the Commissioners "by extension" are responsible for the policy along with CYS. Finally, plaintiffs assert that the Commissioners supervised CYS's improper training of Haas who was not qualified for the assignment given him and that the Commissioners had a policy of using inappropriate personnel hiring criteria. (para. 44).

 The claims against CYS echo those made against the Commissioners. Plaintiffs claim CYS had a policy against permitting counsel at the interviews on behalf of themselves, (para. 26), or their minor child. (para. 30). CYS had implicitly approved the searches of the Balliets' home and the searches constituted a policy of the agency for which it and its supervisor, defendant Mosier, are responsible. (para. 39). Finally, CYS had improperly trained Haas and had used inappropriate hiring criteria. (para. 44).

 It is alleged that defendant Mosier falsely told the Balliets that they did not need a license for their baby-sitting service and they relied upon this to their detriment when the state investigated them, in part, for not having a license. (para. 17). Mosier was also involved in setting CYS's policy on the searches of the Balliets' home, (para. 39), as well as its hiring and training policy.

 The only allegation against Linda Page, an employee of CYS, is that she withheld information from the plaintiffs concerning a certain foster child that was placed in their care. The child had been sexually abused before being placed in the Balliets' home but they had never been informed of this. Subsequently, DPW identified the child as abused by the Balliets even though Page and CYS knew that the child was previously a victim of sexual abuse. (para. 18).

 Columbia County is named in the complaint as being represented by Mosier when she deliberately misled the plaintiffs concerning the need for a license, (para. 17), and is charged with responsibility for improper hiring and training policies. (para. 24).

 The complaint does not allege a general conspiracy by all the defendants acting in concert to deprive plaintiffs of their constitutional rights. Rather, the individual defendants are alleged to have acted with the implied authorization of their respective agencies and within their own sphere of authority. Hence, separate causes of action are alleged against different defendants.

 III. Discussion.

 A. Standard of Review.

 In ruling upon the motions to dismiss in this civil rights action we will rely upon the standard of review set forth in Robb v. City of Philadelphia, 733 F.2d 286 (3d Cir. 1984) as follows:

 
We must accept all of the well-pleaded allegations of the complaint as true and construe the complaint liberally in the light most favorable to plaintiff, Gomez v. Toledo, 446 U.S. 635, 636 n. 3, 100 S. Ct. 1920, 1921 n. 3, 64 L. Ed. 2d 572 (1980); Jennings v. Shuman, 567 F.2d 1213, 1216 (3d Cir.1977). We should not [dismiss] at the pleadings stage, especially . . . a civil rights action, unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957); Scher v. Board of Education, 424 F.2d 741, 744 (3d Cir.1970).
 
To establish a valid claim under § 1983, a claimant must show: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt ...

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