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RINDERER v. DELAWARE CTY.

March 19, 1987

RICHARD AND MARYANN RINDERER
v.
DELAWARE COUNTY CHILDREN AND YOUTH SERVICES and PAMELA ANSEL


Thomas N. O'Neill, Jr., United States District Judge.


The opinion of the court was delivered by: O'NEILL

THOMAS N. O'NEILL, JR., UNITED STATES DISTRICT JUDGE.

 AND NOW, this 19th day of March, 1987, upon consideration of defendants' motion for summary judgment, *fn1" and response thereto, it is hereby ORDERED that:

 1. As to Delaware County Children and Youth Services, said motion is GRANTED, and the complaint is DISMISSED as to said defendant.

 a. As plaintiffs concede, the allegations of the complaint do not state a cause of action against DCCYS under 42 U.S.C. § 1985, or under § 1983 on the basis of respondeat superior, and plaintiffs cannot recover punitive damages against DCCYS.

 (1) The government as an entity is responsible under § 1983 only when execution of its policy or custom, whether made by its lawmakers or those whose acts may fairly be said to represent official policy, inflicts constitutional injury. Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).

 (2) Plaintiffs allege an unwritten DCCYS Policy allowing its employees to do the acts complained of, which are, essentially, Pamela Ansel's allegedly spreading malicious stories and threatening to take Plaintiffs children away from them. Plaintiffs further allege that DCCYS' negligent failure to train its employees makes it responsible for Ansel's allegedly negligent, reckless and bad faith acts.

 (3) "Proof of a single instance of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional [governmental] Policy, which policy can be attributed to a policymaker." City of Okalahoma City v. Tuttle, 471 U.S. 808, 823-824, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985); Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 1296, 89 L. Ed. 2d 452 (1986). A county may be held liable for failure to train or supervise its employees if "it had notice of prior misbehavior by its [employees] and failed to take remedial steps amounting to a deliberate indifference to the offensive acts." Patzner v. Burkett, 779 F.2d 1363, 1367 (8th Cir. 1985). Negligent conduct by state actors does not implicate any aspect of the due process clause. Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 663, 665, 666, 88 L. Ed. 2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 670, 671, 88 L. Ed. 2d 677 (1986).

 (4) Even assuming that Ansel's conduct was unconstitutional, plaintiffs fail to allege more than a single instance of activity and it cannot be attributed to a policymaker. Plaintiffs also fail to allege the existence of notice of prior misbehavior. Lastly, DCCYS cannot be held liable for negligent training under Daniels and Davidson even if the result of such negligence was an act by Ansel amounting to more than negligence.

 2. As to Pamela Ansel:

 a. Said motion is GRANTED regarding allegations of a violation of 42 U.S.C. § 1985. Plaintiffs concede that they do not state a cause of action and that portion of the complaint is DISMISSED as to Ansel.

 b. Said motion is GRANTED regarding Maryann Rinderer's allegations of a violation of 42 U.S.C. § 1983, and Maryann's complaint against Ansel is DISMISSED.

 (1) Maryann alleges violation of her 14th Amendment rights to liberty and due process in two separate counts. Specifically, she alleges that Ansel spread malicious stories about Richard and threatened to take his children, thus depriving him of his liberty. She also alleges that Ansel convinced her to remove her children from her home and her husband by threatening to take her children if she did not do so, thus depriving Maryann of her liberty without due process of law and without a hearing of any kind. In their briefs, plaintiffs state that this is ...


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